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Seanad Éireann debate -
Wednesday, 26 Mar 1930

Vol. 13 No. 15

Military Service Pensions Bill, 1929—Committee Stage.

I wonder if it is worth my while at this late stage of the Bill to try to get the Seanad not to pass it. People seldom make up their minds——

Cathaoirleach

You are out of order, Senator. The principle of the Bill has been accepted, as it has got a Second Reading. You cannot now move its rejection, and you have got no amendment down. On the Final Stage you will have an opportunity of speaking against it.

SECTION 2.

So much of sub-section (6) of Section 3 of the Principle Act as enacts that the findings of the Board of Assessors set out in their report shall in all cases be final and conclusive and binding upon the applicant is hereby repealed and in lieu thereof it is hereby enacted that such findings as so set out shall be and, in the case of findings set out in a report made before the passing of this Act, be deemed always to have been final and conclusive and binding on all persons and tribunals whatsoever, but subject and without prejudice to the power of the Board of Assessors to reopen any such findings under the proviso to the said sub-section (6).

I move:—

After the word "findings," in line 35, to insert the words "as relate to period of service."

That is to say, that the prohibition, if I may call it so, of any review of the findings will be confined to a prohibition of the review of the report of the Board of Assessors in those matters which they were required to report upon by the Military Service Pensions Act. If my amendment were inserted it would still leave the position as the Minister has declared it should be; but it would still make it possible for the Comptroller and Auditor-General to satisfy himself that the rate of pension that was being paid was calculated according to the rank and according to the terms set out in the Act. The insertion of these words would not affect detrimentally in the slightest degree the case made by the Minister in support of the Bill.

Let me remind the House of the procedure. Under the Military Service Pensions Act an applicant for a pension makes his application to the Minister for Defence on a prescribed form, which application is referred to the Board of Assessors by the Minister. The Board reports to the Minister on a prescribed form as to the military service of the applicant—that is the phrasing of the Act. Section 3 (2) says "the Board of Assessors shall examine every application, and they shall have power to make inquiries," and so on, "for the purpose of making a report to the Minister as to the military service of the applicant." That is the purpose of the inquiry by the Board of Assessors. The report is to contain findings upon the following matters:—The military service of such applicant in Oglaigh na hEireann, the Irish Volunteers, etc., the military service of the applicant in the National Army, and the period of service in each of such forces. So that the duties of the Board are clearly set out, and those duties have nothing to say at all to the rank of the applicant. It is the Minister who issues the certificate of military service, which has to be according to the report of the Board, but the Minister may then grant a pension to be calculated according to the period of service and paid at a certain rate, to be based upon the rank of the applicant at the time he left the National Army, or in case of those who were already out of the Army in 1924, at the time they left the Army. But I assume I am right in saying that there are at present a considerable number of men in the National Army who have obtained certificates of military service, but are not yet drawing pensions, and will not be entitled to draw pensions until they leave the National Army. When they leave the National Army their pensions will be based upon the rank they had attained at the time of leaving the Army, and unless that is a lower rank than the rank held on the 1st of February, 1924, "the rate of pension shall be based upon the rank at the time of leaving the Army." It is, therefore, impossible for the report of the Board of Assessors, which may already have been sent in, to contain particulars as to the rank of the applicant when he has left the National Army, although it is true that in the form of report set out in the regulations there is a line which reads: "Rank of the applicant as defined in Section 4 (3) of the Act." I do not know why that should have been inserted in the form, and it can only have been of value in respect of those who had already left the National Army at the time of the report being made. In any case, the Board was not required by the Act itself to make a report on rank.

The point of the amendment is this, that the Comptroller and Auditor-General ought to be in position to assure himself that the rate of pension that is being paid is in accordance with the law and is not in excess of the rate which would be due to a person according to the rank he held when he left the National Army, unless that were a rank lower than the rank held in the old service. But if this section is passed in its present form, even though a mistake had been made in the rate of pension, quite apart from what was granted for the period of service, in so far as the rate of pension was based upon rank there would be no cheek henceforth if this Bill passes in its present form. Therefore what I seek is that the prohibition of review which is contained in Section 2 shall be confined to the period of service of the applicant and shall have no relation or regard to the question of the rate of pension in so far as that rate of pension was based upon the rank of the applicant when he left the National Army. There is no promise of secrecy, there is no likelihood of there being any difficulty with people outside the State when one is questioning, if it were necessary to question, the rate of pension so far as that is based upon the rank which the applicant held when he left the Army. That is information that is at present and that has at all times been in the possession of the Minister for Defence, and so far as it is within Ministerial knowledge, because there has been no promise of secrecy and because nobody will be prejudiced in any degree by the examination of the records in respect of rank, I ask the Seanad to agree that Section 2 shall be confined to those findings which refer to periods of service and do not relate to rank at the time of leaving the Army.

I think that the amendment is very reasonable. The principle of this Bill is, of course, to exclude from the review of the Comptroller and Auditor-General certain documents upon which public funds have been paid out and will be paid out. Everybody will admit that in principle that is wrong. There may be reasons for it, but in principle it is wrong. If that is so I think it is desirable that the matter should be confined within the narrowest possible limits. The findings of this Board of Assessors are on the military service in Oglaigh na hEireann, etc., and in the National Forces, and the period of service. I agree with Senator Johnson that there is no conceivable reason why the rank of the person upon which the allowance paid to him is measured—which is one of the factors upon which his allowance is measured—should be kept from the review of the Comptroller and Auditor-General. If this Bill is necessary confine it within the limits of the necessity. I understand that that is the principle underlying the amendment, and I would submit that that is a wise principle and that it ought to be accepted.

If the case were as simple as Senator Johnson presented it, I do not think that I would have very much objection. As a matter of fact, I think that really the case that he has in mind has been operative all through in the cases that he described. To begin with. I would point out that the regulations were laid before the Oireachtas, and are binding on me equally with the Act. In 1926, I think—at any rate some four years ago—the question as to whether the Board had to find on rank as well as on period was submitted to the Attorney-General, and his advice to us was that the term:

"The military service of such applicant in the National Army would include a finding as to his rank in that Army. The period of service is provided for in Section 3 (3) and (c), and the rank would be one of the chief matters of importance, apart from period of service. This is recognised both in the application form and in the report form. The appropriate pension is based on rank. Such statement as to rank is, in my opinion, a relevant matter for determination by the Board and within their jurisdiction to determine, and is accordingly a finding under Section 3 (6)."

Senator Johnson referred to a section of the Act which states:—

Every report as to military service of any applicant for a certificate of military service shall contain findings upon the following matters, that is to say:

(a) the military service of such applicant in Oglaigh na hEireann or in the Irish Volunteers or in the Irish Citizen Army or in Fianna Eireann or in the Hibernian Rifles; and

(b) the military service of such applicant in the National Forces or the Defence Forces of Saorstát Eireann; and

(c) the period of the service of such applicant in each such force or body as aforesaid.

In paragraphs (a) and (b) it is set out that they must give their military service, specifying their respective services in each of these; in paragraph (c) it says, as something distinct from (a) and (b), that they must state the period of the service. I think that if what Senator Johnson says, namely, that with regard to (a)—the military service of such applicant in Oglaigh na hEireann and these other bodies—meant only the period of service, then I do not see why there is the statement that they must also bring in a finding as to the period of service. That seems to me to have been indicated there——

Surely six separate services. There are four in (a) and two in (b).

Quite, and the Senator will notice that (a) says he must give the military service in what we will call the pre-Truce forces; (b) says that he must give the military service in the post. Truce force, and (c) says he must give the period of service, not indicating that he must give the complete period of service, but he must give the period of service in each such force as aforesaid.

Not in (a) en bloc or in (b) en bloc, but in each such force—in Oglaigh na hEireann, or in the Irish Volunteers, or in the Irish Citizen Army, or in Fianna Eireann, or in the Hibernian Rifles.

In each such force as aforesaid.

That does not deal with rank, surely.

Take Mr. A, who joined Oglaigh na hEireann on 1st May, who joined the Irish Citizen Army on 2nd May and left it on the 1st June, who joined Fianna Eireann on 15th June and left it in August, and who joined the Hibernian Rifles at a later date and left it afterwards. Paragraph (a) says that he must state his military service in each of these bodies, and paragraph (b) says that he must state——

"In Oglaigh na hEireann or in the Irish Volunteers," and later on "in each such force."

The Senator will notice that (a) and (b) say that they want information as to military service, and (c) says that they want information as to the period of service. Incidentally, whether I am right or wrong, the regulation is equally binding on me—and it was presented to the Oireachtas in due form—as the Act. The legal advice we had on the matter some four years ago, as I said, was to the effect that the military service included a finding as to rank. Now Senator Johnson brings up the case of men who are in the Army now. A man may be a lieutenant now; he may leave in three years as a major—I think that is the sort of case he has in mind—and he says that when it comes to the real deciding factor as to what that man's rank for pension purposes is, it will be according to the records in my office, unless it be that the Board finds that he had a higher rank in the previous body than he has at the time of leaving. The report of the Board has been available to the Comptroller and Auditor-General all through; there has never been any question about that. The Comptroller and Auditor-General has a right to ask for any papers that are in my possession, and at any time he could do so if he saw that so-and-so had gone out and had got a pension with his rank assessed on leaving the Army as a colonel. That was made perfectly clear to him by the report, which was available to him too. But if he had reason to doubt whether that man was a colonel or not he then has the right and the power to ask for the file of that officer and see what his rank was.

As far as I am concerned, I see no objection whatever to the Comptroller and Auditor-General, or any other competent person, coming to me and saying: "This man has gone out of the Army as a colonel. We would like to see what proof there is that he was a colonel." The Comptroller and Auditor-General would be perfectly justified in asking me that, I think. But the Senator is aware that in an earlier period in the Army we had not complete records. I have no doubt that there are cases of men drawing pensions implying that they had service in the National Army and we may not have any record of the service, because in the early days there were occasionally no records, or incomplete or inaccurate records. In such a case the Board had to consider the question of rank, based upon evidence put before it.

I think I understand what Senator Johnson has in mind. Before the Board brings in its report it applies to me for a certificate as to rank, and a certificate as to the rank is supplied. Senator Johnson says it may be that I, or somebody under me, would attribute a higher rank to a man than that actually held by him. He states that there should be means of finding out whether that was done or not. I think that that means exists. If I have not records of the earlier period certainly the Board would have to find on something other than records. Where the Board has found that the higher rank was the rank on leaving the Army, and when it based its assessment on that rank on a certificate from my Department, it will be found on the records in my Department. These records are available to the Comptroller and Auditor-General.

Senator Johnson may say that this thing does not allow the Comptroller and Auditor-General to take action. It does not, I suppose, but he can report to the Public Accounts Committee that as far as he can see a man is drawing a pension as a colonel who had not been a colonel. That may happen. Of course, it may be that the man in pre-Truce days, or in the early period before our records began, held a rank which had to be assessed as equivalent nowadays, say, to that of a colonel. In these cases there is no difficulty, but in any real case where there is a question as to whether the certificate, being itself based upon a report from my Department, of his rank on leaving the Army, and there is doubt whether it might not imply a rank higher than he held, the Comptroller and Auditor-General has power to ask for these papers from my office. What would be the position? I am speaking a bit away from my book, but I think in pretty well every case where the finding of the Board was higher than the actual rank of the man leaving the Army we referred the thing back to the Board. I would not say that was done entirely, but I think it was generally done.

In such a case if Senator Johnson or somebody else came to me and said: "This man was in the Army until 1927 and left the Army then with the rank of captain, but his pension is that of major. How is that?" If it seemed that the rank for pension purposes was based upon his rank on leaving the Army, then naturally I would summon the Board together again and say: "This may have been a case of a mistake, and I would ask you to go into the case again." But the Board may have based its finding of rank on evidence which was put before it but which is not now available. I think the Senator will understand that in some of the early periods—in 1924 or some earlier period—we did not always have records and that the only means of assessing the rank was the evidence put before the Board. In those cases the Comptroller and Auditor-General is excluded, as I am excluded. In other cases any documents which are available to me are available to the Comptroller and Auditor-General. But I think that the Senator, in moving the amendment, has presumed that in every case the finding of rank was based on the rank at the time of leaving the Army, which itself was based upon the certificate supplied by my Department. I think the case he has in mind can be met, but his amendment to my mind does tend. first of all, to a reading of the Act which is against our legal advice as to the meaning of the Act, and, secondly, it tends to segregate certain aspects of evidence from the evidence that was put before the Board and to review that evidence. I think that the case put by Senator Johnson may be met without this amendment, but I think the amendment as it is would do much more than Senator Johnson has thought.

The Minister has made a case in regard to officers whose ranks were not very clear or definite up to 1924 in the Minister's records; but this Bill is not dealing only with pre-1924 officers, and while I make no concession from the case I made on the Second Reading as to the general question, let us for the moment assume that he is right in respect of the pre-1924 service. Let us take 1928 or 1929 service. An officer is leaving the Army in 1929 or 1930 and he is entitled to a military service pension based on the rank which he held at the time of leaving. That is not contained in the report upon which the military service certificate is granted. Therefore the rate of pension cannot be assessed on the report of the Board of Assessors, it has to be calculated according to the rank at which the man left the service.

The Minister asks us to trust to his or his successor's willingness to reconstitute the Board and request it to go into the case on account of new evidence. But here we come to the kernel of the whole question. The Comptroller and Auditor-General has authority under the Constitution to check the spending of State funds by the Minister. The Minister says "If you bring forward any indication to me that something is doubtful or not quite satisfactory, I am willing, or I may be willing, to call into being a new Board of Assessors and ask that new Board to review the evidence which I will allow to be handed over." That seems to me to be limiting the authority, the power and the control of the Comptroller the Auditor-General and we ought not to agree to it. If the Seanad concedes, as it has done, anything in deference to the plea of the Minister in regard to all the difficulties surrounding the revolutionary activities and so on, well, so far so good. It is accepted. But here we have a question which does not at all touch these revolutionary activities. It deals with the services of men in 1930, and yet the Comptroller and Auditor-General is going to be debarred from auditing except at the discretion of the man whose accounts are being audited.

I suggest the least the Seanad can do in this matter is to ensure that, so far as the moneys that have been paid away on the basis of services rendered in 1930 in the National Army are concerned, that these shall be subject to the full and undoubted audit of the Comptroller and Auditor-General. If the Minister says that right should be retained by the Comptroller and Auditor-General, except for pre-1924 cases, well, there is a way in which his case can be met. That is to say, the provision regarding the period of service referred to in my amendment, may be held not to apply to the pensions of men who left the Army in 1924. In that case we would be only ensuring that the Comptroller and Auditor-General would have the continued right to audit as fully as he wished in respect of the rank of those cases where the Minister had the knowledge within his possession.

He said that, as regards the 1924 cases, the knowledge was not in his full possession, but in these latter cases the knowledge is in his possession, so that there should be no barrier against the auditing of them, even conceding all that the Minister urged in his argument on the last occasion.

First, as to the effect of putting this word "rank" into the report of the Board of Assessors, I would point out to the Minister that, notwithstanding his argument as to the effect of Section 3, sub-section (3), all these separate lines regarding the period of service make no reference to the rank in the separate forces mentioned. Rank is defined by sub-section (3) of Section 4 as follows:

Every military service pension shall be based upon the rank of the applicant at the time of his discharge from the National Forces or from the Defence Forces of Saorstát Eireann or the rank held by him on the 1st day of February, 1924, whichever of those ranks shall be the higher ...

so that when the Board of Assessors were asked in these forms to indicate the rank defined by sub-section (3) of section 4 of the Act, it was the rank at the time of the applicant's discharge and not the rank held in these various forces—Oglaigh na hEireann, the Irish Volunteers, the Irish Citizen Army, Fianna Eireann, or the Hibernian Rifles. Therefore, the case which the Minister built up on that proposition falls completely and cannot be sustained.

If what the Senator wants is that everything that is at my disposal shall be at the disposal of the Comptroller and Auditor-General, then I entirely agree with him.

Will the Minister agree to put it in the Act?

That is the practice.

My contention is that this section effectively, and for ever, stops the Comptroller and Auditor-General from auditing these accounts, except at the discretion of the man whose accounts he is auditing.

Cathaoirleach

I think that is certain.

Section 2 of the Bill provides that:

So much of sub-section (6) of Section 3 of the Principal Act as enacts that the findings of the Board of Assessors set out in their report shall in all cases be final and conclusive and binding upon the applicant is hereby repealed and in lieu thereof it is hereby enacted that such findings as so set out shall be and, in the case of findings set out in a report made before the passing of this Act, be deemed always to have been final and conclusive.

Take, for instance, a case such as the Senator referred to, that there is a man in the Army now who last year was a lieutenant. He may be in the Army now as a colonel. My trouble is that it does not follow that a pension is going to be based upon his rank on leaving the Army. If that was so the matter would be perfectly simple. In the case of a man leaving the Army his rank is based on his rank as published in the Iris Oifigiúil. It is in my office and is available for the Comptroller and Auditor-General. On that point I am entirely with Senator Johnson. I do not say that these things become more or less available for that officer by virtue of anything in this Act or anything that the Senator may have put into it.

The Minister has pointed out that the form of the report of the Board of Assessors is equally binding on him just as the Act is. The report says that the rank of the applicant is defined in sub-section (3) of Section 4. The Board may report that the rank of the applicant was a colonel.

On the 1st of February, 1924.

It does not say anything of the kind. Sub-section (3) of section 4 says that every military service pension shall be based upon the rank of the applicant at the time of his discharge, or the rank held by him on the 1st day of February, 1924, whichever of those ranks shall be the higher. He is reported then by the Board of Assessors, some time after 1924, to have been a colonel or a major. That is binding upon the Minister. It cannot be reviewed by the Comptroller and Auditor-General nor can it be reviewed by any authority whatsoever except at the discretion, first of the Minister, and second of the Board. Notwithstanding the possibility that this report with regard to the rank of the pensioner is wrong, there is no review of it. Despite the knowledge upon which a pension has been calculated, that the applicant is, say, a colonel in the Minister's office and a major in the report, the report is not reviewable. The Comptroller and Auditor-General may have the information, and if he raised the question in the past it may or may not have been objected to. Here we are now saying with malice aforethought, as I should say, that henceforward the Comptroller and Auditor-General can be stopped from looking at these things if you wish, looking at these things if the Minister wishes. The Minister may grant permission; he may be willing that the evidence as to rank should be made available; he may think that desirable, but if he wishes he may prevent any question as to rank being raised, because it has already been decided by the report of the Board.

I cannot quite make out what difference the insertion of this amendment would make. It seems to me that the objection is to the fact that the review of one of these cases requires action by the Board.

First by the Minister, and second by the Board.

Did I understand the Senator to propose that action is to be taken by the Comptroller and Auditor-General independent of the Minister and the Board?

The review?

My view is that the Comptroller and Auditor-General has the right to examine these things, and the Minister is seeking to prevent that.

Cathaoirleach

The Senator wants him to have that right, except in the case of period of service?

Senator Johnson and the Minister have repeated the same statements about half a dozen times. What I want to know is: is this dispute to be allowed to go on indefinitely?

Cathaoirleach

I hope not. Senator Johnson wishes that the Comptroller and Auditor-General should have access to complete details except those relating to period of service.

Would that mean all the information that was before the Court of Inquiry?

Cathaoirleach

I take it it would include all that.

The inquiry has nothing to do with the rank of the applicant when leaving the Army.

Cathaoirleach

Your amendment would allow everything to be examined except the period of service.

What my amendment attempts to secure is that all the findings of the Board, except so far as they relate to period of service, would be reviewable by the Comptroller and Auditor-General.

What the amendment means is this: that the Comptroller and Auditor-General is to have a legal right to do what the Minister says he now has permission to do. Why should not the words proposed go into the section so as to preserve, as a legal right, what the Minister says is, in fact, now done by courtesy?

I maintain that he has the legal right now to see all the data in my office. I maintain, therefore, that this Act does not take that legal right from him.

Why not make that clear in the Act?

It is clear at present, but the amendment makes the thing unclear.

Amendment put.
The Committee divided: Tá, 12; Níl, 21.

  • Michael Comyn, K.C.
  • William Cummins.
  • J.C. Dowdall.
  • Thomas Farren.
  • Thomas Foran.
  • Sir John Purser Griffith.
  • Thomas Johnson.
  • Seán E. MacEllin.
  • Colonel Moore.
  • Joseph O'Doherty.
  • John T. O'Farrell.
  • Séumas Robinson.

Níl

  • Miss Kathleen Browne.
  • R.A. Butler.
  • Alfred Byrne.
  • Mrs. Costello.
  • John C. Counihan.
  • The Countess of Desart.
  • James G. Douglas.
  • Sir Thomas Grattan Esmonde.
  • Michael Fanning.
  • Cornelius Kennedy.
  • Patrick W. Kenny.
  • The McGillycuddy of the Reeks.
  • James MacKean.
  • Seán Milroy.
  • William John Molloy.
  • Joseph O'Connor.
  • L. O'Neill.
  • Bernard O'Rourke.
  • Siobhán Bean an Phaoraigh.
  • Thomas Tcal.
  • Richard Wilson.
Amendment declared lost.
Sections 2 to 5, inclusive, put and agreed to. Title agreed to.
Ordered that the Bill be reported.
The Seanad went out of Committee.
Report Stage ordered for Wednesday, 2nd April.
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