I move: "That the Bill be now read a Second Time."
The House is already officially aware, from a statement made here by the Taoiseach on 31 January 1978, of a Government decision, which was made on 19 January 1978 to remove from the office of Commissioner of the Garda Síochána the then holder of that office, Mr. Edmund P. Garvey. Mr. Garvey subsequently took legal proceedings which resulted in, amongst other things, a finding by the Supreme Court that the removal from office was null and void.
I propose to return, later on in my statement, to that decision of the Government and to the circumstances in which a decision of the Supreme Court was sought by both sides in the legal proceedings. For the moment, I am concerned only with the fact that that was the decision. It meant that Mr. Garvey was still legally Commissioner of the Garda Síochána and, since the law provides for only one Commissioner, it followed that Mr. Patrick McLaughlin did not hold that office or rank.
The judgements given in the Supreme Court make it clear that the right of the Government to remove a Commissioner from office is not questioned and that the Government were free, if for adequate reason they considered it necessary, to make a new decision removing Mr. Garvey from office, provided certain procedures were adopted.
The Government were satisfied that Mr. Garvey should not be allowed to remain in office but considered it right, as they did in January 1978, to give him the option of resigning. He availed himself of that option. In saying this, perhaps I should make it clear that I am aware that he is reported in a newspaper as having said that he "retired" rather than "resigned". As far as I am concerned, nothing hinges on any distinction that might be thought to exist between those two terms—the position is that the solicitors acting for him used the word "resign" in the relevant letter to me and he himself used the word "retire". Perhaps in that context I should make it clear that he has qualified for, and has been formally awarded, maximum pension and maximum gratuity.
His resignation was expressed to be with effect from, and was accepted as from, 14 May and Mr. McLaughlin has been formally reappointed as Commissioner from the following day, namely 15 May.
There is, therefore, a need to validate actions of Mr. McLaughlin during the period of 16 months or so when he was carrying out the functions of Commissioner but when, as it now transpires, he did not hold the office. There is also a need to validate acts done by some others.
One of the most important functions in respect of which validation is necessary concerns the appointment of new members to the force. Every new member has to be appointed by the Commissioner—the precise terminology is "appointed and enrolled"—and it is, therefore, necessary to have validated all the appointments of new members during the period in question.
The Commissioner is also responsible for promotions up to the rank of inspector, and it is necessary to have those promotions validated. Appointments to the rank of superintendent and higher ranks are a matter for the Government and accordingly the question of validating those appointments does not arise except for one particular appointment to which I shall refer later.
While on the subject of appointments, I invite the attention of the House to an important distinction that is implicit in the terms of the Bill, that is, that while both the appointment of new members and the promotions to sergeant and inspector rank will be validated, the Bill, in so far as Mr. McLaughlin himself is concerned, validates only his actions, not his original appointment. This explains why the Bill contains a reference to his pay and conditions of service in respect of the 16-month period but does not do so in respect of the new members or newly-promoted sergeants or inspectors whose appointment or promotion, as the case may be, is in question. Once those appointments and promotions are validated, the entitlement of the members concerned to the appropriate salary and conditions of service follows as a matter of course. Mr. McLaughlin will not, however, be appointed retrospectively as Commissioner and, in the absence of a special provision, he could in certain circumstances suffer some diminution of pension rights. The reference to his pay is probably unnecessary but it is included as a precautionary measure and also because it would seem inappropriate to include a reference to conditions of service without including a reference to pay.
What I have referred to up to now concerns the validity of appointments within the force. There could also be some consequential matters. For instance, the Commissioner may under section 3 of the Offences Against the State Act, 1939, give a written authorisation to a named superintendent to exercise certain functions that are primarily vested by that Act in chief superintendents. In practice, the only function of significance in this context is the extension from a maximum of 24 hours to a maximum of 48 hours of the period during which a person may be detained under section 30 of the 1939 Act. It has been the practice to grant such authorisations to superintendents attached to Border districts and to superintendents attached to divisional headquarters. There is no injustice to anybody in the retrospective validation of those authorisations since they are authorisations that would have been granted in accordance with well established practice, irrespective of who was Commissioner, and the invalidity of Mr. McLaughlin's original appointment has no material relevance to the decisions taken by the relevant superintendents.
In theory, there could have been similar situations in relation to the prohibition, under the 1939 Act, of certain types of public meetings but this did not arise in practice.
The authorisations I have been referring to are formally given by the Commissioner to certain superintendents under specific statutory authority. There are other situations in which there is no question of a specific statutory authorisation of a particular superintendent but in which, nevertheless, there could be room for argument arising from the fact that the assignment of a superintendent to his district took place during the period we are referring to. There are various provisions in statutes or in rules of court or other statutory instruments whereby applications or notices of one kind or another are to be given to the superintendent of the district in which the person making the relevant application or giving the relevant notice lives or has a premises. The superintendent, in certain cases, has power to grant or refuse certain permits, certificates or the like, or to object in court to the granting or removal of certain certificates or licences.
Although the assignment of a superintendent to a particular district is an administrative matter and is not referred to in statutes or statutory regulations, and although it could be cogently argued that a superintendent who takes up duty in charge of a district is, by that very fact, the superintendent for that district, it is clear that somebody wishing to challenge a superintendent's decision might argue that the assignment flows from, or involves, the exercise of the Commissioner's general statutory function of directing and controlling the force. Consequently, if only to avoid sterile argument, those matters have to be covered also.
Reverting for a moment to functions exercised by the Commissioner, as distinct from persons deriving authority from him, I would mention also bye-laws or rules which he is authorised to make under the Road Traffic Acts. I am informed that one set of traffic bye-laws were made in the period in question and one set of local and temporary rules.
The Bill, as the House will have noticed, refers to things done by Mr. McLaughlin or by any other person. The expression "any other person" is, of course, limited by the context in which it appears—the validity conferred by the section can have no application otherwise than to acts which were invalid by reason of the fact that Mr. McLaughlin's appointment was not effectual. As the House is aware, the word "person", under the standard rules of interpretation, includes a body of persons and, in the present context, it includes the Government in that the Government, in January 1978, appointed a new Deputy Commissioner when, as it then appeared, Mr. McLaughlin had become Commissioner. Under the relevant statutory instrument, there was provision for only two Deputy Commissioners so it appears that the new appointment needs to be validated.
Another example of what is covered by "any other person" is a local authority putting up road signs—their functions in that respect are, by law, exercised subject to the consent of the Commissioner. The expression "any other person" is also intended to cover, if necessary, acts done in the course of their duty by those people I have already mentioned, namely those admitted to the force during the last 16 months, those who were promoted to the rank of sergeant or inspector in that period or those of chief superintendent or superintendent rank who were assigned to their division or district during that period. Naturally, only a small number of the official actions of any of those persons could come into question in any event, since most of their work does not consist of the exercise of statutory powers that might be open to be challenged in the present context. Moreover, in so far as such acts may need to be covered, it seems likely that they would be covered by the validation being accorded to Mr. McLaughlin's acts, on the basis that, once his acts are validated, everything that flows from them is automatically validated. There might however, be room for some argument about that, so it seems safer and simpler to rely on the direct validation that the Bill proposes to give to them as things done by "any other person".
There is one other point in the text which I think may call for explanation, namely the words in brackets at the beginning of section 1, referring to the satisfying of any condition precedent to the exercise or performance of a power or duty. This is included because a number of functions of the Commissioner may be exercised only on the basis that he is satisfied as to some factor or that he is of a certain opinion or that it appears to him that a particular situation exists. Although the satisfying of conditions of that kind naturally involves his considering the matter and reaching an opinion or conclusion and in that sense involves his doing something, there appeared to be some possibility of argument as to whether the phrase "everything done" would by itself clearly cover it and for that reason it was thought prudent to include those words that I have mentioned.
I have given what I think are the main examples of matters needing validation though the House will appreciate that, in the nature of things, the list does not purport to be a complete one. I would like to make it clear, however, that it is not through an oversight that I have not made any reference to criminal proceedings instituted during the period in question. The reason I have not referred to them is that I am not aware of any reason why it should be thought that a question arises about them. I am aware that certain public statements have been made suggesting the contrary but those statements seem to be based on a misunderstanding of the legal position. Legal proceedings in the more serious cases are brought by the Director of Public Prosecutions and even in a number of less serious the DPP may also be the prosecutor. In those cases where a member of the force brings a prosecution himself, he is not, as a matter of law, acting on behalf of the Commissioner nor is it the Commissioner who, in practice, gives directions as to whether such proceedings should be brought. The member is, therefore, not in any way acting as agent of the Commissioner.
I said, at the beginning of my statement, that I would return to the question of the initial decision of the Government and to the circumstances in which a decision of the Supreme Court was sought by both sides in the legal proceedings. I do not, however, consider it appropriate to go into these matters in any detail, at all events on this occasion, and for a number of reasons. One of the reasons, and a sufficient one by itself alone, is that certain important related issues are before the High Court and, in accordance with long established practice, we ought to avoid issues that are sub judice. This is an area in which I cannot say with any confidence precisely what aspects are likely to be in question in the High Court but, since there is a claim for damages, I have to assume that any aspect of the entire circumstances preceding or relating to the Government decision of January 1978 could become relevant to the proceedings. Over and above that, there is on the Order Paper, in the names of Deputies Harte and O'Keeffe, a motion—it is item No. 73—which will provide opportunity for debate. Indeed, if it were not for the constraints imposed by the fact that those proceedings are before the High Court, I would have suggested that the debate on that motion should take place now in conjunction with the debate on the Bill but, as matters stand, this is not possible.
There are, however, certain matters that are clearly not sub judice, matters that it is permissible to refer to and that, in my view, it is in fact desirable to refer to, even if only briefly, in fairness to the House which is being asked to pass this legislation. In referring to them briefly, I still do so on a purely factual basis that will not anticipate the debate that no doubt will take place on the motion on the Order Paper.
The House is aware, from what was said here by the Taoiseach on 31 January 1978 that the Government lost confidence in Mr. Garvey as Commissioner. Mr. Garvey took a legal action in the High Court which can be described as an action for wrongful dismissal. Counsel on both sides agreed that, instead of embarking on possibly protracted litigation in the High Court on issues that might prove irrelevant, it would be in the interests of all parties to get an initial authoritative ruling on what both sides agreed was a preliminary issue, namely whether the Government had, as a matter of law, unqualified authority to dismiss a Commissioner without notice and without giving reasons.
As it happened, it was Mr. Garvey's legal representatives who proposed that the preliminary issue should first be determined, though I do not make any point about that other than that there is no dispute about the fact that the issue submitted, first to the High Court and then to the Supreme Court, was intended by both sides to be a preliminary one. Counsel for the Government, for their part, recognised that, if the preliminary issue were decided in favour of the Government, the case would end there and then and no costs would have been incurred on investigating issues of fact which would have been irrelevant. It was for that reason that they agreed to this course and certain questions, agreed by both sides, were submitted to the High Court and then, by way of appeal, to the Supreme Court. In the event, the Supreme Court decided against the Government on the particular questions put to them. Furthermore, they went on to decide that, on the basis of their decision on those preliminary questions and the pleadings in the High Court, the dismissal was null and void because—so the court held—the various assertions made in the statement of claim as to the circumstances of the dismissal had not been denied, or sufficiently denied, in the defence that had been filed on the Government's behalf, and those assertions were on that account presumed to have been conceded by or on behalf of the Government.
The House will notice, therefore, that, although the legal representatives on both sides had intended the appeal to the Supreme Court to be an appeal on a preliminary issue, the court's response was such that their decision on that issue, irrespective of what it would be, was going to determine the substantive issue as well. This is clear because, if the court's answers had been in favour of the Government, the plaintiff would necessarily have lost the action at that point and, when the decision went the other way, the court in effect held that the plaintiff had won the action at that point. In either event, therefore, what was intended and understood by both sides to be a preliminary issue was going to turn out to be something quite different.
I mention this matter because it illustrates that there are, unavoidably, areas of the law where uncertainty prevails. Deputy Cluskey, commenting in this House on 16 May—in Volume 314, column 710 of the Official Report —spoke of the incompetence of the Government who, according to the Deputy, did not know how to sack a Commissioner. The Deputy is, of course, entitled to make this political charge. The reality, as he and other Deputies knew, is that governments, irrespective of party, make no pretence to any special inspiration in the interpretation of the law. Even the courts make decisions that are found to be wrong in law. It is a common occurrence for decisions of the High Court to be overruled by the Supreme Court.
The important point is that, however much a party to a legal action may feel aggrieved at a particular decision—and counsel for the Government have stated clearly in open court that the Government do feel aggrieved at the decision—we all, in this House, recognise that we are fortunate in that we live under a system in which the law is interpreted by an independent judiciary. The feeling, on a particular occasion, that one is hard done by is a price that we gladly pay for the benefits of a separation of powers. Moreover, in determining an issue before them, the court are not only the interpreters of the law but also the arbiters on the construction or interpretation of documents and on findings of fact for the purpose of the particular action.
It is necessary to be clear, however, as to what the court have decided and what they have not. As I have said, the court found that the defence pleadings did not constitute a sufficient denial of the various assertions made in the plaintiff's statement of claim and, consequently, that the defence pleadings must be construed as an acceptance of them. To say that particular pleadings must be construed in a particular way, is not to say that such a construction corresponds with the intentions of the Government or of counsel who drafted the pleadings on the Government's behalf. Still less is it to say that the Government must accept, or do in fact accept, in any context or for any purpose other than that of the particular issue before the court, the account given in the plaintiff's statement of claim. As I have already indicated, I am not here embarking on any defence, still less any detailed defence, of the Government's decision and actions. Even if the reasons I have already given did not obtain, I am conscious of the fact that to do so, unless events were to make it necessary, would be open to the charge that it involved gratuitous criticism of a person who is not present to defend himself, and that it was therefore contrary to the traditions of the House.
I think it is both right and necessary, however, to put on record one matter of fact, a fact which is not open to dispute, and that is that, contrary to an impression that may have been given, there was no question of Mr. Garvey being simply called in out of the blue and given two hours to resign. I am not implying that I had previously mentioned either resignation or dismissal to him. All I am saying—but I do say and emphasise that much—is that there was a background to what occurred and one of which he was aware for some time. What that background was, how far back in time it extended, how many people knew at least something about it and so on are matters I do not propose to expand on now because to do so would inescapably involve argument on the merits of what was done and, for the reasons I have given, and especially the fact that there are issues to be determined by the High Court, it would be inappropriate for me to embark on any argument whatsoever about the merits at this stage. I simply want to place on record the fact that what occurred did not occur out of the blue, and if the need arises, either in the context of the motion which is on the Order Paper or otherwise, I propose in due course to say as much as I have to say to defend myself. How much that may be is, perhaps, largely dependent on what may be said or done by others and, in that sense, may be out of my hands.
I conclude by saying that the Bill is put forward to meet a need that clearly has arisen and on that basis I commend the Bill to the House.
