The Senator who has just spoken usually makes rather extreme statements and with, in my view, over-emphasis. I think in this case he has not over-emphasised his denunciation of this Bill. I think it is quite true that the Bill has raised more issues of vital import, of a financial character, at any rate, than perhaps any Bill brought before the Oireachtas since 1922. The Senator spoke of it as a Bill of indemnity; I think it is rather a renunciation Bill, a Bill in which the Dáil particularly is asked to renounce its authority, its check over the expenditure of public moneys.
It has been pointed out that the Comptroller and Auditor-General is a Contitution-appointed officer whose tenure of office is similar to that of the Chief Justice, whose position is entirely above politics, entirely above the administration, and that his responsibility is solely to the people through the Dáil and Seanad. I think it has been rather unfair to refer to him as he has been referred to in the other House, and to create the impression that he is an officer of comparatively minor importance, that Ministers, for instance, whose activities of a financial character he is specially appointed to check, are of equal importance in financial matters. That is an entirely wrong view, and I would say, with a knowledge of the origins of this dispute, that he has been perfectly correct in every step he has taken. Having been appointed to control disbursements and to audit accounts, his position, if he finds any fault, is to report the fact to the Dáil, and that is all he has done in the very mildest but in a very incisive manner.
For the purpose of reassuring certain Senators I wish to say that the case I intend to put here to-day is the case that was submitted in 1927 by men of such antecedents and character as Deputy Hewat, Deputy Bryan Cooper and Deputy Conor Hogan, men who were not political associates of my own. I think it is important, in view of what the Minister stated here to-day, to point out that the request which the Comptroller and Auditor-General submitted to the Accounting Officer of the Minister for Defence was as follows:—"January 7, 1926. It is requested that the original applications for service pensions paid during the financial year ended 31st March, 1925, may be forwarded to this Department." That was from the Audit Office. The reply received from the Army Finance Officer stated: "In accordance with the request, I duly applied to the secretary of the Board of Assessors for the original applications and received the following reply... ‘The Board cannot agree to forward the documents mentioned.'"
There has been a great deal said about the evidence, about documents, about the assessors' notes of evidence and so on, about this court and the authority over the documents belonging to the court, but I want to emphasise that the Comptroller and Auditor-General sought, for the purpose of his audit, the original applications and they were refused. What are the original applications? The original applications are statutory forms which are filled up. The Act which is the basis of this discussion—the Military Service Pensions Act—provides that the Minister may make regulations. The Minister made regulations and supplied forms as an appendix to the regulations. The first form is entitled: "Application to the Minister for Defence for a certificate of military service." There can be no question that a document issued under regulations of a statutory kind, paid for out of public funds, sent to the Minister in accordance with the statutory regulations, is a public document inasmuch as it has reference to a financial transaction, the expenditure of public moneys, and obviously and necessarily comes within the purview of the audit. When the Comptroller and Auditor-General sought for the purposes of his audit the production of the original applications for pensions the Board of Assessors declared that they could not agree to forward the documents mentioned. A discussion took place following that refusal, and the matter was reported to the Dáil by the Comptroller and Auditor-General and finally to the Committee of Public Accounts. It appeared that a consultation had taken place between the Board of Assessors and the Minister and it was then proposed that the Comptroller and Auditor-General should be informed that they would allow him to see the forms of application conditionally.
The conditions are these. I am quoting from the Report of the Proceedings of the Public Accounts Committee, 16th February, 1927, page 253, from the evidence of the Accounting Officer:
The forms of application will be made available for the personal inspection of the Comptroller and Auditor-General upon the distinct understanding that any information disclosed upon these forms, which relates to activities undertaken, or persons resident outside Saorstát Eireann, or which deals specifically with activities in respect of which service is claimed, are under no circumstances to be divulged to any person whatever.
In regard to certain of the applications, and more particularly in regard to the evidence tendered, the most solemn undertakings have been given by the Board to applicants and witnesses that their statements and sworn evidence were being received, and would be treated as being in the strictest confidence.
I want to ask the House to remember that the Comptroller and Auditor-General is an officer appointed by the Dáil to audit all financial transactions made on behalf of the State, transactions conducted under the authority of Ministers, and in effect it is the Ministers' financial operations that are being checked on behalf of the people. As everyone realises it is a most desirable thing for the sake of Ministers that there should be such a careful and authoritative independent audit. In the course of the audit Ministers sought to impose conditions upon the Comptroller and Auditor-General, and it seems to me that no one in his position could rightly accept such conditions. The Minister referred to the Board of Assessors as a Commission. I suppose it was not a thoughtfully constructed term; he did not want to imply anything beyond the fact, but there is quite a different construction likely to be placed upon the term "a Commission" as compared with the actual term and function of this Board. It is a Board of Assessors which reports on the period of service of persons who have applied for pensions. They have to report to the Ministry which is the executive authority for granting or refusing pensions. While I do not want to over-emphasise it from the constitutional side, I want to emphasise it from the point of view of financial propriety, that this Board of Assessors consisted of three persons, one of whom must have had legal experience, any two of whom could sign a report which then would be the report of the Board. But two of these three were members of the Ministry whose accounts were being audited. One was, I think, Parliamentary Secretary to the Minister for Finance at the time, and the other was the Minister for Fisheries. No doubt by virtue of their previous knowledge and experience the most competent men to examine and advise upon the facts. I am not questioning that at all. But they were in a position of executive authority, yet they constituted the majority of this Board of Assessors which had to make these reports involving the expenditure of public moneys. Their refusal to produce the applications meant that the accounts were not to be audited in the way that the Comptroller and Auditor-General thought necessary, acting on the authority of the Constitution Act and the special Act known as the Comptroller and Auditor-General Act. I say as a matter of financial and political propriety that is a very important fact, and one would have hoped, from the point of view purely of the removal of any possible shadow of doubt, that the audit would have been open and that no obstacle whatever would have been placed in the way of the Comptroller and Auditor-General. It was pointed out too that the Comptroller and Auditor-General's powers, as the Adaptation of Enactments Act and the Comptroller and Auditor-General Act signify in so many words, except in so far as they may be enlarged by the Constitution Act, follow upon and are identical with the powers of the Comptroller and Auditor-General in the late United Kingdom, which is the phrase in the Act.
Under those powers, notwithstanding the various enactments stating that the decision of the Board and the Minister should be final, it was, and is to-day, the constant practice that all documents relating to an award which was alleged to be final and conclusive are revealed as required to the Comptroller and Auditor-General. As is related in the draft report which was drawn up by myself and refused by a majority in the Committee—a matter to which I will refer later—the Superannuation and Pensions Act of 1923, Section 9 says: "The decision of the Ministry of Finance on any question which may arise as to the application of any section of this Act as to any person or as to the amount of any allowance or gratuity under this Act or as to the reckoning of any services for such allowances or gratuities shall be final."
Notwithstanding that, all the papers respecting the service, the amount of gratuity, the amount of pension or award are produced and are available for the Comptroller and Auditor-General, and naturally, inevitably as it seems to me, that having been the practice he sought to support his audit by reference to the documents. The document he sought, as I have shown, was the original application of the pensioner. Let us examine that for a moment. In the original application the person was required to state his service in the various units for various periods. For instance, "Did you render active service in the week commencing 23rd April, 1926? Unit, particulars of any military operation or engagements or services rendered, ...absence from duty." Similar space is left for service in the succeeding period, including the period in the National Army. That is presented to the Minister and referred by him to the Board for their examination and report. They report, and the form of their report sets out what the result of their examination is as to the service rendered by the applicant.
Let us say that the man is granted a pension of £200 and that that could only be made up by a certain period of service in a certain rank. I ask the House to consider whether, if the applicant in sending forward an application declares that his service in this year was so and so and the succeeding year was something else, if that disagreed with the report of the Board, would not that be a reasonable ground for query by the Comptroller and Auditor-General? Let us bear in mind that £6,000,000 are involved in this matter, or £150,000 a year for 40 years, that is to say the average expectation of life as will be seen from the census returns. Allowing 40 years for the average man in receipt of a pension, round about £6,000,000 is involved. The Minister himself has said that it is practically impossible for such a considerable number of transactions to have taken place without some flaw or some illegality having arisen. We are asked by this Bill to say in effect that no matter what illegalities may have arisen, no matter what flaw may have arisen, no matter what awards which were unearned have been made, nothing henceforth shall be done to rectify the wrong awards. The Minister has said that if anyone brings evidence showing that a man is receiving money that he should not receive he will take action. I wonder has he considered that he is in effect stopped from taking action? Not only is the Comptroller and Auditor-General stopped by this Bill, but the Dáil is stopped, the Courts of Justice are stopped, the Minister himself is stopped. But the Minister will point to the proviso that is still left in the Act:
.... provided however that the Board may at any time re-open any or all of their findings at the request of the Minister on the ground that evidence not available prior to the making of their report had since become available, and upon hearing such additional evidence the Board of Assessors may amend their report and alter or discharge any findings therein as may seem to them just, having regard to such further evidence.
I have this note of query as to whether, if the Board is no longer existent, if the Board has been dissolved, how can it be considered that the Board could re-open a question? It may be said that legally the Board is a continuing body, or that a new board may be constituted which may be considered to be the board under the Act. That is a legal matter on which I cannot express any strong or valuable opinion. But assuming that a board may be reconstituted any time within the next ten, fifteen, twenty or thirty years, it would be a new board in fact, though the old board according to the law. The Minister may ask the Board to re-open, provided that he has evidence which was not available prior to the making of their report. But who is to know whether the evidence was available or not prior to the making of that report? How is the Minister to know? He has not access to the documents, and he does not know what evidence was before the Board. If the Board says, as they may well say, "This matter was before us; we have decided on this finally," I submit to the Minister that he is not in a position to ask the Board to re-open until he can be assured that the evidence which he says is new was not then available.
But if, perchance, the Board had made a report which was wrong in fact, notwithstanding the evidence, the Minister's case and the case of the Bill is that, notwithstanding any error they made, their word is like that of the Privy Council: it is the law; and nothing else can come between their report and the issue of the final pension. So that I say the proviso is of no value whatever in ensuring that a wrongfully awarded pension will be brought to an end. It is even impossible, according to this Bill, supposing there were a suggestion of the possibility of prosecution for perjury, to have it, because the documents are not available; the decision is final and the Board is the possessor; it cannot and will not release them; they are their documents and in their possession; and the evidence which is supposed to be contained in those documents and files is of so secret a character that no person outside the Board dare have access to it. I am not going to overstress that side of it at all; I realised from the beginning the case that the Minister has made, that there may be good reason for avoiding even the possibility of publicity in respect of certain pensions for fear of the freedom, if not the lives, of the persons concerned. The Board itself, in defence of its refusal to disclose, say they made a promise of secrecy. But it was entirely beyond their power to make such a promise; they had no authority under the Act to do so. That the Oireachtas, particularly the Comptroller and Auditor-General, is to be estopped from carrying out its duty because the Board, acting beyond their authority, made certain promises of secrecy, is a preposterous proposal, and this House should not be a party to it.
I am not sure whether I have misread a statement made by the Minister, but I would like to have his correction if I am wrong. It appears in column 246 of the Official Report of the Dáil: "I do not have any files. We only get the applications and the certificates when they come back from the Board." I am not sure whether that means that the applications and the certificates come back from the Board.
