Public Business. - Public Services (Temporary Economies) Bill, 1933—Committee Stage (Resumed).
I want to refer to one or two remarks which the Minister made. He professed to prove that he did not make any promise regarding the non-cutting of teachers' salaries. So far as I am concerned, I never suggested he did. But I did quote the definite pledge given by the President and we must, of course, hold the President responsible for what the Minister for Finance does in a matter of high policy. He admitted that he did write to the teachers regarding the suggestion that the pension fund should be handed over to the Minister for Finance, or, as he said, "to the tender mercies of the Minister for Finance." Strange to say, his offer of June of last year to the teachers embraced an exactly similar proposition—that the fund should be handed over to his tender mercies. His speech indicated that the delegates from the I.N.T.O. were rather agreeable to accepting the offer made by him, but that they were turned down by a majority of their organisation. That, I think, is news to all associated with the I.N.T.O.
The general inference was that the new Executive, which had been elected on the slogan of "no cuts," could not possibly, and did not make, any recommendation to their people to accept a cut. The teachers will, no doubt, be astounded to hear that their Executive were at all favourable to accepting this offer in view of the mandate which they received when elected. The Minister suggested, too, that the opposition was principally composed of people who were willing to accept a cut from the late Government. If that is the case it meant practically the whole of the teachers, because I do not think there was any support in the teachers' organisation, since the new Minister came into power, for a cut. These statements, consequently, do not tally. The position really was that the old Executive had, rightly or wrongly, considered a cut and suggested the acceptance of that cut to their members. That was accepted, but a revolt was started within the organisation— a revolt led by prominent supporters of Fianna Fáil and supported, outside the organisation, by members of the Fianna Fáil Party. That revolt was successful. The old Executive was thrown out and a new Executive, avowedly pro-Fianna Fáil, was returned and you have the result you have to-day. You have the very embarrassing position of the present president of the I.N.T.O. being called upon by his branches all over the country to resign his seat in the Dáil, or his membership of the Fianna Fáil Party, and being called upon by his Whip to take other action. He is torn between two loves and the Party Whip prevails. That is a very difficult position to occupy, but it is the child of the interference of politicians for political purposes in trade union affairs. The politicians poked their noses into the affairs of the I.N.T.O. and thereby took away from the Executive of that organisation the power to negotiate with any prospect of being able to deliver the goods. When politicians do that, they must not be disappointed or surprised when they become Ministers if they find the executive of the organisation they have helped to disrupt unable to act as plenipotentiaries or to negotiate a settlement with them. All that remains is the imposition by enactment, or force, of terms which the great majority of the members are not agreeable to accept. That is the position of the Irish National Teachers' Organisation to-day, and I sincerely hope that, as a result of it, politicians will in the future mind their own business, follow the legitimate activities of politicians, and not try to disrupt trade unions for their own purposes.
I should like to correct one statement which has been made. All the blame seems to be thrown on the teachers' organisation in connection with the Blythe offer and other offers. That is not correct. At a special conference of teachers in December, 1931, the Blythe offer was accepted. That special conference was not the governing body of the teachers. The governing body of the teachers met at Easter in annual conference. Between December and that Easter meeting, the famous statement was made by the President at Rathmines, in which he definitely suggested that no cuts would be proposed by his Government if they got into power. On the strength of that statement, congress rejected the Blythe offer in 1932. There is no doubt whatever about that. All this trouble had arisen by reason of the attitude taken by the supporters of the present Ministry and by the words of the President at Rathmines. That was definitely the reason for the rejection of the Blythe offer in 1932 at the annual parliament of the teachers. The teachers were misguided and, consequently, this unfortunate position has arisen.
Amendment put and negatived.
Before I move amendment 6, I should like to know whether this provision covers teachers in secondary schools.
It does not cover teachers in secondary schools. The salaries of these teachers were cut at the end of 1931.
Amendment not moved.
Amendment 7 (Senators Farren and O'Farrell) not moved.
I move amendment 8:—
Section 6, sub-section (1). To delete paragraph (b).
This amendment deals with the position of any person who is paid wholly or partly, directly or indirectly, out of the Central Fund or out of moneys provided by the Oireachtas, or from a fund under the control of the Minister. It appears to me that the Minister is taking a good deal of power in this section. I am afraid the application of it will have serious consequences for a number of people who are not directly under the control of the State, whose remuneration has been fixed not as if they were State servants and who do not enjoy many of the privileges that State servants enjoy. For that reason, I think the amendment ought to be accepted by the House.
I think the Senator, in what he said, was referring more particularly to Section 9 and not to this section.
Amendment, by leave, withdrawn.
I move amendment 9:
Section 6, sub-section (3). To add at the end of the sub-section the words "nor to any transferred officer as defined by the Civil Service (Transferred Officers) Compensation Act, 1929."
I would remind the House of the fact that, at the time of the transfer in 1922, the Provisional Government was in the position that it had to provide a civil service. As I said before, my friend, the Minister for Finance, was engaged in a different form of service at that time.
We heard all that before.
Yes, I said all that before, and I say it again. It is true that while we were trying to create a civil service the Minister was trying to prevent our creating it. That is a fact that nobody can deny, either in this House or elsewhere. A number of civil servants decided to enter the service under us at the time. We had no means of getting a civil service other than to accept the service of those who were in the service at the time. We could not get a civil service by putting an advertisement in the newspapers just as one might put in an advertisement for casual labourers. We had to take those who were in the service at the time. We took them over. I think that those who accepted service under us at that particular period, with whatever rights they had at the time as regards service and pensions, are entitled to have their rights protected by statute. I think my Friend Senator Comyn would agree with me on that.
I would like to point out further that there were certain people in the employment of the State at that time who decided to exercise the right given to them and left the service. They had the option of coming over under us, but they did not. They left the employment they had in the State service and had to be paid their pensions. In addition, we had to get other people to take their place. The position, therefore, was that we had to pay twice: to pay pensions to those who went out on pension, and salaries to those who were appointed to fill their positions. I suggest that, in the circumstances, the Minister should accept this amendment.
I do not think the Senator has made any strong case for his amendment. In fact, I do not think any person could make a strong case for it. First of all, I would like to point out that there is nothing in this Bill that in any way diminishes the existing rights of transferred officers. There is a good deal of misapprehension in the mind of the public as to what those rights actually are. A transferred officer had the option either to remain in the service and, remaining in it, at the date of transfer to serve in it on the same terms and conditions as any other officer in the service, or he had the right to elect to go out. If he did elect to go out, then he had the right to have his pension and retiring allowance fixed according to a certain prescribed scale. As against that, he had the safeguard that he could not be compelled to continue to serve under the Government of the Irish Free State unless his conditions of employment, as existing at date of his transfer, were to be continued to him. If they were altered in any way to his detriment, he had the right, subsequently more exactly defined in the Civil Service (Transferred Officers) Compensation Act of 1929 to go before the Transferred Officers' Tribunal, and to prove there that his conditions had been altered to his detriment. If he succeeded in proving that to the satisfaction of the tribunal, then he was entitled to retire upon the prescribed terms to which I have already referred. Now there is nothing in this Bill which in any way diminishes the right of a transferred officer.
That point was not raised when that section was before the House. There is nothing in this Bill that will preclude the transferred officer from going before the Civil Service (Transferred Officers) Tribunal and making the case there that his salary has been reduced, and that consequently his conditions of service have been altered to his detriment. I am not going in any way to prejudice the free decision of the tribunal in reference to that. In any case the way is open to the transferred officer to go before the tribunal. We are not stopping him. That is the only right that the transferred officer has had since 1922: that in the event of the Minister for Finance not accepting the contention of a transferred officer that his conditions of service had been altered to his detriment, he has the right to go before this tribunal to get the issue determined between himself and the Minister.
It seems to me, in view of the fact that the Bill does not take away from that right, that the House should not accept this amendment. Apart altogether from that, there is the practical consideration which arises: that the transferred officers constitute almost one-half of the existing Civil Service. They are a section of the service which have very special rights and privileges. They are safeguarded much more than the other section of the Civil Service. If you are going to exempt the transferred officer, with the existing safeguard which he has from this Bill, it seems to me that the logical conclusion would be to exempt the whole Civil Service, and if you exempt the whole Civil Service, having exempted the Gárdaí, is it worth while to proceed with the Bill at all? Now that seems to me to be a conclusive case against the acceptance of the amendment. First of all the rights of a transferred officer are not interfered with in any way under the Bill; secondly, if you exempt him in the manner laid down in the amendment, then it would seem to me that you ought to exempt the whole Civil Service. If you do that, then the Seanad should not have given a Second Reading to this Bill.
I want to bring before the House a particular case I have in mind. Take the Dublin Metropolitan Police. They were taken over by us when we took control here in 1922. A considerable number of them took advantage of Article X. They went out and got their pensions under the Treaty. We had to pay their pensions and, in addition, to pay the men who were employed to do the work they had been doing. What I am interested in is to ensure that under this Bill we will not have to be doing that sort of thing.
I did not intend to intervene in this debate but for the statement which the Minister has just made. I do not profess to have a very profound knowledge of law, but the statement of the Minister was that there is nothing in this Bill which diminishes the existing rights of transferred officers. He went on to elaborate that point. I think he insisted on the rights that transferred officers had prior to this Bill, and said "We are not interfering with them by this Bill." This, of course, is an amendment to Section 6, but in view of the provision in Section 5 I do not know how the Minister can maintain that position. Section 5 seems to have been inserted in order to provide for the contingency that in the future one of those transferred officers may go before this tribunal and make the claim that his conditions of service have been worsened; in other words, that the conditions of the contract into which he entered with the Saorstát Government have been altered to his detriment. Then Section 5 of the Bill specifically says that "a deduction of salary shall not operate to terminate such contract." I think it is common sense and fair play to assume that if an employee enters into a contract—in this case the employee being a civil servant and the employer the State— on certain terms, and that at a certain time the State says: "We are going to alter those terms to your detriment," then I think the employee is entitled to say that that terminates the contract. Here you have a section which expressly anticipates such action by the aggrieved party, and precludes his making such a claim. In view of that how can the Minister maintain the contention he has made? Deputy Duggan's amendment is intended to avert such a prejudicial effect, in the case of a transferred officer taking place consequent on the operation of Section 5.
I am inclined to think that it would be rather difficult for the House to pass this amendment as it stands because, if there is any truth in the Minister's statement—and I take it that there is no question about the Minister's statement being correct—it would cover nearly half the Civil Service. Having passed the Second Stage of the Bill, I do not see how we could carry this particular amendment. The Minister's own statement contained a statement something similar to the words in amendment No. 20, which looks the same but which, as a matter of fact, deals with a totally different thing and which gives an assurance that nothing in the Bill should be taken to interfere with the rights of particular persons to appeal to the tribunal. The Minister says that the Bill does not take away that right, and I take it that he has no objection to the principle. I would, therefore, urge the Senator to withdraw the amendment.
I should not like to be committed, at this stage, to an acceptance of amendment No. 20.
I only stated that the Minister was accepting the principle of it. I suppose we could argue the rest of it afterwards.
I think the Minister ought to accept it.
I have already indicated to the Seanad why I could not accept it.
Is it possible to have any further consideration of this by the Minister before Report Stage or is he adamant in his attitude?
I am afraid I am. It goes to the root of the whole Bill. If the Seanad would wish it, I am prepared to argue the point raised by Senator Milroy as to the effect of Section 5. I think the Senator is under a complete misapprehension as to the effect of that section as it is in the Bill. First of all, it is not clear that Section 5 would apply to a civil servant at all. It does more particularly apply to persons who might come within the ambit of Part III of the Bill, people who would have a definite contract of service. I do not want to commit myself at this stage——
Would the Minister insert some provision to ensure that Section 5 shall not apply to transferred civil servants?
I should not like to do that either, because it has not been decided, in the courts here, anyhow, whether a servant has or has not a contract of service, and it seems to me that by deleting this section we might quite easily do an injustice to a civil servant, just as easily as we might by including it and I do not think that by including it we shall do an injustice. It is included, to some extent, as a safeguard to the civil servant to ensure that whatever his actual relations of service are with the State, or whatever rights he may have under them will be preserved to him, even in the case of a transferred officer. If he had a contract of service that contract would still continue to subsist. Pension rights and superannuation rights might quite easily go if Section 5 were not in the Bill, assuming that a transferred officer has a contract of service—and I do not think he has. My own opinion is that the transferred officer has not got contractual rights with this Government, but he has statutory rights, a rather different thing. He might have had some rights in the nature of contractual rights against the British Government, but whether he has those rights against this Government or not, I am not going to be the person to determine. The Transferred Officers' Tribunal will determine that, if they are called on to do so, but, in any event, whatever the bond of service the transferred officer has with this Government, it will be preserved to him under Section 5. Section 5, however, will not operate to say that if a man's salary is reduced during the period he is in service of this Government, his conditions of service have not been altered to his detriment. Section 5 cannot be argued to substantiate a case like that.
Is the Minister suggesting that a reduction of salary is not an alteration of the conditions of employment to a person's detriment?
No; I think the Senator has misunderstood me. When I was pointing out that the Bill did not in any way diminish the existing rights of transferred officers, Senator Milroy asked: "What about Section 5?" I assumed from that that he thought Section 5 in some way would operate to prevent the transferred officers from going to the Transferred Officers' Tribunal.
It would bias the tribunal against his appeal.
I do not think so. I do not see how the tribunal could be biassed against his appeal. They have to hear and decide on it purely on law and on facts, and the fact would be that, while Section 5 would preserve whatever bond or agreement of service existed between the transferred officer and this State, it would not operate to say that if a transferred officer's salary were reduced his conditions of service had not been altered to his detriment. The tribunal would have to determine that matter for itself.
I think that Section 5 simply protects the Government against any possible suggestion that a contract was being broken by this Bill and I think it is right to insert the provision. I do not see how you can avoid having some such section, but I think it is a most ingenious argument to suggest that it, in some way or other, protects the civil servant because when you have a two-sided contract and one side breaks it—assuming that there is a contract; I am not arguing that there is—it does not thereby get out of all the rest of it. I certainly think that you may create a considerable amount of misunderstanding by what I think is the very doubtful argument, that this in any way protects the civil servant. It is more or less a necessary part of this Bill, where you are definitely authorising a cut, to provide that the court will not come in and say that there was a contract which binds you otherwise, but to say that it is protecting the civil servant is scarcely, I think, correct.
Amendment declared lost.
Amendment 10 not moved.
Section 6, as amended, agreed to.
Amendments 11, 12 and 13 not moved.
SECTION 7
(1) From all salary which, during the current financial year is earned by and payable to each person to whom this Part of this Act applies, there shall be made a deduction calculated at the rate stated and in accordance with the provisions contained in the Schedule to this Act which are applicable to such person.
(2) From every of the grants mentioned in Part V of the Schedule to this Act which is made during and in respect of the current financial year, there shall be made a deduction calculated at the rate stated in the said Part V.
(3) The deduction to be made under this section from the salary of any person shall, so far as may be practicable, be made rateably from every payment of such salary made in the current financial year.
(4) Where the salary of a person to whom this Part of this Act applies includes allowances or benefits given otherwise than in money, the deduction to be made under this section from such salary shall (though calculated on the whole of such salary) be made only from the portion of such salary which is paid in money.
(5) Every deduction made before the passing of this Act from salary paid to a person to whom this Part of this Act applies which would have been a lawful deduction under this section if this section had then been in force shall be deemed to have been made under this section and to be and always to have been lawful accordingly.
(6) All sums deducted from salaries or grants under this Part of this Act or deemed to have been so deducted shall be retained in the Exchequer or the appropriate fund under the control of a Minister (as the case may require) and be available for any purpose for which moneys in the Exchequer or such fund (as the case may be) are lawfully available.
I move amendment 14:
Section 7, sub-section (2). To insert before the sub-section a new sub-section as follows:—
(2) Notwithstanding anything contained in this Act no deduction shall be made from the salary of any person in the Civil Service of the Government of Saorstát Eireann:—
(a) who was appointed with a special agreement as to the amount of his remuneration and who satisfies the Minister that, for the purpose of accepting such appointment, he gave up any profession or occupation from which he derived an income not less than that remuneration which he agreed to accept in respect of such appointment;
(b) who was appointed subsequent to the 6th December, 1922, with a special agreement as to his remuneration and who for the purpose of accepting such appointment gave up an appointment in the service of any other country.
On the Second Stage of the Bill I made a reference to certain of its provisions which I thought might be held to break specific contracts quite distinct from any general argument of contracts which may be used in the debate. This amendment of mine will, I think, affect only some eight, ten or, at the outside, a dozen people, but it seems to me that there is a definite principle involved which ought not to be included in this Bill. I should like to make it clear that this amendment does not refer to what are known as transferred officers, that is, persons who were transferred from the old British Civil Service in Ireland to the new Government and who have certain rights under the Treaty. I do not want to refer to these rights at all and I want to make it clear that this amendment does not deal with them at all. The position, as I understand it, is that there were a certain number of people who were invited in the early days of this State to give up professions and to become civil servants. Some of those gave up positions in which they may have been earning comparatively small sums and became civil servants on definitely better terms. I am not concerned with them. They are, to my mind, in the same position as any other civil servant, but I have reason to believe that there are a few who, because their services were of a specialised character and because they were regarded by the then Government as almost indispensable, were invited to take up positions for which the remuneration was not any greater than what they were then obtaining, and it seems to me that where people came in in these circumstances—and I believe they are very few—they ought not to come under this Bill.
The particular case which I regard as the least important is covered by (a) of the amendment. Paragraph (b) refers to the person appointed subsequent to the 6th December, 1922, with a special agreement as to his remuneration and who, for the purpose of accepting such agreement, gives up an appointment in the service of any other country. I understand there are some—I will not attempt to say the number; but I am informed that there are not over a dozen of persons—who come under that category.
We know that, in the early days of this State, a number of civil servants were lent from another Civil Service. They were lent because no one trained in the particular work which they had to undertake was available here. In nearly every case they were Irishmen who happened to be in the British Civil Service. Most of these men stayed for a period of three years—I am not quite sure of the exact period —and then returned to the British Civil Service, retaining their rights and position. According to my information, a few who were regarded as indispensable were approached by the previous Minister for Finance and asked to stay here. In doing that their term of loan having come to an end, they ceased to have any special rights in the British Civil Service. Their service, of course, counted for pension here, but they transferred completely, giving up any claim. They are not transferred officers under that particular section of the Treaty but simply men who joined the Civil Service from the British Civil Service. I understand that some of these men did so on a specific agreement, some, I think, in writing and others not, that their remuneration would not be decreased. If my information is correct—and I have it on fairly good authority—this is a matter of good faith. Men who might have progressed —and most of them, I believe, would have progressed considerably in the British Civil Service—were asked by the State—never mind what the Government was at the time—to take up special positions and to transfer here because they were indispensable, on the promise that their remuneration would not be reduced, and that, I think is a pledge They are just exactly in the same position as I would be in my own business if I appointed a senior member of the staff or a manager on those terms and gave them to him in writing. I would be legally bound by that contract. If it was not in writing I would be only morally bound by it but in my mind there is no difference except in the matter of law. I would further urge that the amount is trifling. I would urge the Minister to accept this amendment. I personally am not a bit interested in the particular gentlemen who would be affected. I am not sure that I know any of them. I certainly do not know any of them intimately. I do not know their names but I do think that there is a principle involved which the Government ought not to include in the Bill.
I am not going to conceal from the Seanad that there is a good deal of force in what Senator Douglas has said. The principle is one which I, as Minister for Finance, would like to be in a position to accept. That is that when a Minister, in the case of a specific service of the State, because he thinks that certain individual servants are indispensable to the well-being of the State, invites them to enter the service upon certain terms and conditions, these terms and conditions should be honoured and observed by his successor. I can see that any departure from that principle might make it difficult for any Government, requiring specialised services at any time, to procure those services from the individual whom they think can give them best. Unfortunately it is very hard to disentangle the special cases which Senator Douglas has in mind from the rest of the service. People who come into the service of the State in response to an advertisement might be found in that category. I will confess that, possibly without being able to give verbal expression to the exact shade of difference, I can see that they are not in precisely the same category as, shall we say, the specialists to whom I refer. Then, again, the question arises: what exactly is the definition of the agreement entered and who is going to be able to determine that?
Under my amendment the Minister would.
That places the Minister possibly in a somewhat invidious position in matters of this sort because it might be argued, and it would be argued possibly, by his colleagues in the Executive Council, that certain officers whom they had in mind, entered the service of the State in that way because they give specialised service and because they were invited. There might not have been a formal invitation. Very often these matters are done by negotiation previously carried out and an agreement reached in an informal way, and what would appear on the file would be merely an application possibly to enter the service, if it did appear on the file at all, or it might be a response to a specific advertisement.
I am not disposed off-hand to refuse to deal with the cases Senator Douglas has in mind if I can see some machinery that will assist me. First of all, I should like to know whether we are to take into consideration at all verbal agreements. There we are travelling in an unknown country. There may be a number of officers in respect to whom we can say with certainty there were such verbal agreements. That number might be fairly well known, but there may be a considerable number of other people who would come along claiming to have these verbal agreements. Who is going, once again, to decide whether the verbal agreement existed or not? The case of the agreement, which is in writing, of course, from the point of view of determination, does not present any difficulty. But if you grant a concession to the person who has an agreement in writing, are you going to do justice to people who have not fortified themselves with an agreement of that sort—persons who were prepared to put their trust in the mere word of the Minister for the time being who appointed them? The position is bristling with difficulties. I would ask the Senator to withdraw the amendment at this stage. We presumably shall have an opportunity of dealing with it on the Report Stage. In connection with this amendment, I frankly recognise that there is a problem to be dealt with. My point of view is sympathetic—at least I shall sympathetically consider the arguments which have been put forward by the Senator, but I just cannot see my way through the maze of difficulties that surround the question—as to how we are going to disentangle this from the rest of the service and what sort of evidence we are going to require as to whether an agreement was entered into or not. Possibly some amendment might be put down on the Report Stage which would solve the difficulties as I have represented them to the Seanad.
I think we have undoubtedly to take what the Minister has said as the way out of the trouble. Listening to the discussion, we have heard no names, but we have heard Senator Douglas state that there is quite a small number of cases affected. His amendment is extremely carefully drawn as far as one can judge. If he is right in his statement that the cases that come under his amendment are small in number, then, the Minister, as he has told us, can inquire into the matter and he will tell us later what is the justice of the case. I take it that is what he will do on the Report Stage. I am sure that we can rely on the Minister to look into the cases to which Senator Douglas' amendment would apply and give his opinion of them on the Report Stage. It is undoubtedly the most satisfactory way of getting over the matter. The Minister is undoubtedly protecting himself by his general remarks. If he said too much now, a whole lot of cases, the position of which he is not sure of at present, might arise. We have to wait to allow him to look into the matter and to see if he can carry out what Senator Douglas wants—that there will be no breach of faith by the Free State Government with any individual. That is all he desires and I am sure the Minister will look into it. In these circumstances, Senator Douglas' best course would be to withdraw the amendment until the Report Stage.
I am quite agreeable to adjourn this amendment to the Report Stage, and if the Minister introduces—he can do it on Report Stage; he is probably aware of the fact that under our Standing Orders a Government amendment can be introduced on the Report Stage—an amendment dealing with the matter, I shall withdraw my amendment. It is not a case of threatening the Minister as I have no idea whether the Seanad as a body will agree with me in this amendment. I have not done any canvassing in regard to it, but I think this is a case where a little pressure on the Minister might do no harm. I do not want to be left simply with the statement that the Minister will sympathetically consider it. I am very anxious that he should have an opportunity of considering any difficulties he may have in dealing with it but on the Report Stage if some other amendment to deal with the matter is not brought forward by the Minister, I shall press my amendment. Senator Staines is not here but I should like to point out that he had put down an amendment of a somewhat similar nature. Obviously there was no collaboration between us. I felt his amendment went further than was absolutely necessary to meet the real cases of contract that I have in mind. I consulted him and asked him not to press his amendment and to allow me to move mine which is definitely more restrictive. It is possible that it may not be sufficiently restrictive. I should like to point out to the Minister and to the House that I have endeavoured to secure that my amendment should not be used for the purpose of costing the State any substantial amount of money. Under the amendment suggested in the Dáil it seemed to me that it went far too far and it might have included a very large number of persons. When I saw that amendment I recognised that and I deliberately altered mine so as to meet what might be a reasonable objection to it, while it would still cover cases where there might be a matter of good faith involved. If the Minister can improve on the amendment and will cover cases where there is a contract I will accept his wording without question.
I should like also to say that he is in a better position to deal with the difficulties or to appreciate them than I am. The Minister said that it might place him in an invidious position but as the numbers are small, and as I have reason to believe that nearly all the persons concerned are responsible persons, I believe nothing of the kind, would place the Minister in a more invidious position than that in which he stands at present. Where a man produces an agreement in writing, of course there is no question. I recognise that in the case of a verbal agreement the Minister may have considerable difficulty. I believe however that Party politics has not reached that stage when you could not have a perfectly friendly consultation as to the bona fides of a claim where responsible officers are concerned and that Party politics would not enter into the question. In the hope that the Minister may examine the question and introduce a more suitable amendment on the Report Stage I shall withdraw this amendment for the present.
Amendment adjourned to Report Stage.
I move amendment 15:—
Section 7, sub-section (5) to delete sub-section.
Though I am opposed to retrospective legislation, I recognise that the House has agreed to the principle of these economics with regard to the pay of people employed by the State. In view of the fact that this is a temporary measure, intended to cover one financial year, and that the people concerned were made aware of this before the beginning of the financial year, I do not propose to press the amendment.
Two things have surprised me in the last few minutes. One was the withdrawal of his amendment by Senator Farren and the other was what, for want of a better phrase, I may call the benevolent mood of consideration which the Minister seems to be imbued with judging by his attitude on the last amendment, since he came into the arena of this House. While that mood is upon the Minister I might be able to show him the error of his ways or of his Department in preserving this particular sub-section. This is the worst feature of this measure which, it is regrettable, we have to consider. Sub-section (5) introduces a very pernicious principle into legislation. The introduction of retrospective legislation in respect to the matter with which it deals is utterly indefensible, and is attended by elements and possibilities of far-reaching mischief, not merely to the services of the State which would mean a big thing, but by creating a headline for other aspects or phases of the economic life of the country. I think the Minister realises how indefensible the principle is. I have gone as carefully as I could in connection with this Bill through the whole of the Dáil debates in the different stages and I find no defence by the Minister for the introduction of this principle. Certainly, if the Minister did make a defence of it so far it has escaped my attention. When this matter was raised in an amendment on the Report Stage the Minister had not a word to say in the matter. This is the Minister's reference when introducing sub-section (5):—
"I should like to call the attention of the House to sub-section (5) of Section 7, which provides that "every deduction, made before the passing of this Act from salary paid to a person to whom this Part of this Act applies which would have been a lawful deduction under this section if this section had then been in force shall be deemed to have been made under this section and to be and always to have been lawful accordingly."
Then he continues:
"It is not anticipated, and it was not contemplated that the House would take all the stages of this measure in one day. Necessarily, it is a measure which merits a good deal of discussion in view of the many interests which it affects. It was not proposed, so far as discussion in detail was concerned, to limit that discussion in the House; but, at the same time, it is imperative, in view of the position which will confront the House next year, that economies should begin and be made at the earliest possible moment, and the most appropriate moment is at the opening of the financial year. Otherwise, if they are deferred beyond that, the Exchequer is going to suffer and the ratepayers and the taxpayers are going to suffer also."
I come to the point on which I wish to join issue:
"However, I should hesitate, even though this sub-section were in the Bill which would give me power to do so, to apply the Act now and would prefer to await full legislative sanction at a future date. I should hesitate certainly to enforce that section, desirable and all as it is that it should be enforced—essential almost as it is—I should hesitate to enforce it unless the House had first of all accepted the principle of this measure, and it is in order that the Department of Finance may feel itself at liberty to enforce this section that the House has been asked to accept the principle of this Bill to-day."
That was not a defence of that section or the principle of it. It was something else, something of a novel and extraordinary nature. It was an argument that the Second Reading of the Bill in the Dáil gave the sanction and force of law to this proposal. Does the Minister question that? He wished a Second Reading to authorise the giving of effect to the proposal. That is one of the most extraordinary requests ever made in any legislative assembly by any Minister who professes to act constitutionally. At least, before a Minister takes action under the authority of a statute he should wait until the Bill that is going to create that statute has been passed by the legislature. The Minister anticipates that. Can he quote any precedent for such action? It has been contended that the Minister has power to impose these cuts without legislative sanction. My argument is not concerned with that. I should like to see the authority, which I understand the Minister claims to have, for enforcing these cuts in salaries. But that is not the point I am taking issue on. The Minister may have power to enforce certain cuts on a certain date. He may have power to impose them on the 1st April, the beginning of the financial year, but he did not exercise that authority if he is vested with it. I say he has no authority now, having omitted to exercise it then, to endeavour by retrospective action to enforce these cuts in the period that has passed. I wonder does the Minister contend that he has. I believe he contends that he has power to impose cuts by retrospective action. I should like him to answer that question. If so, what is the limit of that retrospective power. Is it three months, six months, 12 months or is it at the discretion of the Minister? Has he any power by statute to-day to show that the requirements of the Exchequer indicate that a certain sum has to be secured, and that he can go back over the salaries of the Service and say "I want three months', six months' or 12 months' deductions, and I am going to make them from the salaries given in the present year."
If the Minister claims to have power to do that for three months I cannot see where a limitation to his power is placed. That is one of the most pernicious principles to have embodied in legislation. I contend that there is no such power of retrospective legislation. If that is so, why the necessity for sub-section (5) which is legalising the illegal thing the Minister proposes to do? That is the express purpose of Section 7, sub-section (5). The Minister is to-day clearly and manifestly doing an illegality and the illegality is something that he has no legal right to do. He has been guilty of that since the 1st April and he is asking the Oireachtas by the legislation in this sub-section, when the Bill becomes law, to indemnify him against the consequences of the illegal act which has been perpetrated since April 1st. I am not professing to discuss law. I am only discussing fair play, common sense and honesty in the administration of the Minister's Department. I want the House to keep in mind that the issue I am raising now is not the volume or the nature of the cuts the Minister is making but the principle of retrospective legislation. The amount that the Minister will secure if this Bill is passed may be required, but I am asking the Seanad to refrain from assenting to a principle which strikes at a very serious, an almost sacred principle, that should be the basis of legislation. What I cannot understand is why the Minister should have found himself in this dilemma.
In his statement in the Dáil on the 31st March last he referred to his own statement in his previous Budget speech and said, "Last year in submitting my Budget statement on the 11th May, I said: ‘I shall have to ask for sacrifices from those who are engaged in public employment to help me to find the remainder.'" The Bill we are discussing now was introduced in the Dáil on the 24th March, 1933.
If the Minister was aware of the necessity for this on the 1st April—the beginning of the financial year—why did he not take time by the forelock and regularise the position, so that he would have statutory authority for taking the action which he proposes to do now in, to my mind, the most illegal and immoral manner? This matter I am raising is on a higher plane than mere Party politics or what is going to be saved under this Bill. It is a question of whether there is to be any fundamental basis of principle or morality upon which Ministers will act in framing their legislation, or whether those principles which should be the basis of any civilised State are to be cast aside because the exigencies of the Minister's circumstances render them inconvenient. I am asking the House to take a serious and high viewpoint in regard to this matter. The Minister quoted from his previous Budget statement one paragraph. I want to quote another from the same speech, delivered on 11th May, 1932. The present Minister for Finance referring to the prospects of the then coming year said:—
"It will be a hard year, a year of self-denial for all of us, but it will be an honest year. We shall honour our obligations to our people and we shall pay our way."
"It will be an honest year." I want to ask if this is honest finance, if this is honouring our obligations to our people? I presume that the servants of the State are citizens of the State and, therefore, part of "our people," and I contend that we are not honouring our obligations to our people and that this is not an honest step. I am not sure whether or not the Minister is conscious of the aspects of the matter that occur to me but, from my point of view, and from the point of view of any honest onlooker, it cannot be contended that this is an honest step. It cannot be contended that retrospective legislation of this kind is honest or that it is dealing fairly with the people concerned. A rather prominent politician once said, in a rather hectic time, that there are some illegalities that are not crimes. I have no doubt that the Minister knows to whom I refer. If the Minister gets this Bill through, with this sub-section embodied in it, he will be able to say to the victims of this measure who reproach him for his action that this is one of the crimes which are not illegalities. I ask the House to take a serious view of this matter. It is not a question of the amount to be saved. It is a question of whether you are going to do violence to a serious moral principle. I contend that that is what the Minister is doing by this sub-section and I ask the House to reject it.
I am glad to welcome Senator Milroy to the ranks of the defenders of constitutional principle because I remember several occasions when I protested here against really retrospective legislation when I had opposed to me the eloquence and the vote of Senator Milroy. Retrospective legislation of a criminal kind is always wrong. My friend, Senator Milroy, will have to study the subject more closely before he knows all its intricacies. This is not retrospective legislation of a criminal kind, such as Senator Milroy voted for on more than one occasion—that is to say, making, by subsequent statute, a thing a crime which up to that was not a crime.
What is being done here? It was declared by the Government of the day, before the 1st April, that these cuts were necessary and that the amount of the cuts would be according to certain percentages. Both the intention to make the reductions—I do not like the word "cuts"—and the extent of the amputation were stated before the 1st April. The Minister proceeded after the 1st April, as he had before declared, to amputate a part of the salary legally payable to the particular civil servant. I do not like to give an opinion on legal questions when I am not invited to do so, with the proper inducement appended to the invitation, but it is my opinion that the deduction, before the passing of this statute authorising it, was not such a deduction as could be enforced in a court of law. But that is not unusual in matters of finance. We all know—nobody better than Senator Milroy—that taxes are imposed by Statute. It is the Act of Parliament that legalises the taxes——
——but from the very moment that a resolution is passed the tax is collectible. It would be impossible to conduct public finance if that practice were not permissible.
There is an Act of Parliament legalising these resolutions.
I am very thankful to Senator Douglas for his reminder, but Senator Milroy and I are on a higher plane. We are talking of constitutional principles, and I am going back to the time when these things were done under constitutional rule and precedent without any law to support them. The moment a tax was announced a resolution was passed and the tax was collected by the Revenue Authorities without statutory authority until the Bill was passed. The practice resorted to here by the Minister for Finance is hoary with age. Something similar has been done for hundreds of years. Why should Senator Milroy, with the zeal of a convert to constitutional principles, say that this is dishonest and unfair, that the Minister has committed all the crimes possible because he has done what, as Minister for Finance, he was absolutely bound to do? Senator Milroy seems to find some hidden crime in the very words of this sub-section. The sub-section is plain, honest, and straightforward.
Every deduction made before the passing of this Act from salary paid to a person to whom this part of this Act applies which would have been a lawful deduction under this section if this section had then been enforced shall be deemed to have been made under this section and to be and always to have been lawful accordingly.
Could words be more plain? It is hard for Senator Milroy to sustain the idea until the end of that long sentence but, to a lawyer, it is perfectly clear. I cannot help joining in the laughter of my friend, Senator Milroy. It is perfectly clear from this sub-section that the deduction was not lawful and will not be lawful until the passing of this Bill. It is perfectly plain that this sub-section will legalise it. That is all the sub-section means. What about Senator Milroy's vigorous defence of constitutional principle? There is nothing in it. If Senator Milroy is going to become a real convert, he will have to learn the distinction between retrospective legislation of a criminal kind, which is always bad, and retrospective legislation in these matters of finance, which is as old as the English Constitution itself.
I hope the Minister will tell us whether or not he agrees with Senator Comyn, that these deductions were illegal.
I think that Senator Comyn makes too much of a joke of Senator Milroy's speech.
I protest. I answered Senator Milroy's speech as best I could, and Senator Milroy is well able to defend himself.
There is a good deal more involved in this question than retrospective legislation. It is quite obvious, from this clause, that the Minister for Finance knew he was committing an illegal act when he authorised these deductions to be made. That is as clear as crystal. At the time he issued instructions to make these deductions, he was guilty of an illegal act.
Same as charging 10/6 duty is an illegal act when you are not authorised by Act of Parliament to charge it.
I do not know anything about that. Sub-section (5) would not have been required if the deduction was not an illegal act at the time it was done. This clause is for the purpose of whitewashing that act. We have to look at how our State is constituted and how we are being governed. If a Minister, knowing that he has a majority in the Dáil to carry sanction of every illegal act he may commit, trusting to his majority——
Cathaoirleach
It would be better not to interrupt.
We have been discussing what a Seanad is worth. Now we do know that in cases like this the Seanad can probably not hold up anything of real importance for any length of time. We are all agreed as to that. If the Government, relying on a majority in the Dáil, can presuppose a decision of the Dáil and commit an act which is non-legal— Senators might not like the word illegal if I used it—there is no end to where that may lead to. There are all sorts of things that can be done, and be justified afterwards by the use of a majority in Parliament. Now I always thought that until an Act was passed nobody could take action under it as if it were the law. I thought that was accepted as a general principle, but the Senator opposite shakes his head and, apparently, we are now facing this condition of affairs, that if a Minister brings a Bill into the Dáil he can proceed to act on it as if it had been already passed. In doing that, he is undoubtedly relying on this: that he is quite certain of having a majority in the Dáil that will give him the Bill, and it will be there to whitewash him for certain things he has done before it has become an Act. These questions are not really connected with the amount of money that we are talking about here. They are really Constitutional questions, and I think Senator Milroy is perfectly right in drawing attention to them. It is more important, I think, that attention should be drawn to them in the Seanad than in the Dáil.
I think we should also consider very seriously the position we are going to get into—if Ministers, relying on a majority in the Dáil can proceed to act on Bills when introduced, being perfectly certain that these Bills will eventually become law in the form in which they are introduced and know that they are in a position to "kill off" any opposition there may be to such legislation in the Dáil. If, in addition, they feel certain that they will not have to consider such problems seriously in the Seanad, then we are undoubtedly reaching a state of affairs in which a parliamentary majority is acquiring real power over the liberties of the people.
It is to that problem that Senator Milroy is drawing attention. I do not think that this debate is concerned with money at all. That is not the question at issue. The really serious question is that a section such as we are debating should be required at all: that the Minister should be able to presuppose a decision of the House and act on it by instructing the officers in his Department to make deductions which could not legally be made when he gave the instructions, and then to come along and ask this House to pass a section such as this. I think that is a very bad principle. We may have to agree to this. I do not suppose Senator Milroy thinks there would be any use in getting a decision on this and sending the Bill back to the Dáil, because the Minister must carry the Dáil with him, but I do think it must make us all think very seriously that a Minister can presuppose a thing is law before the necessary legislation has been passed by either House and proceed to act as if it were the law.
Before Senator Jameson spoke, I asked the Minister if he would state whether he agreed with Senator Comyn. My reason for doing so was that I wanted to draw a distinction, emphasised by Senator Jameson's speech, between two kinds of retrospective legislation. We have on quite a number of occasions been approached—we have seen the same thing happen in England and other countries—by the Government coming here and saying bona fide that they had been carrying out something which had not been technically correct. There was no secret about it, but as they might be liable to an action in the courts, they asked to have the thing made legal from a particular date. That is one class of case. The other is the establishment of the principle whereby a Government announces that, from such and such a date they will make certain deductions of salary, and then at their leisure or at such time as they find it convenient, pass a Bill to legalise their action. If we were to set out on a principle such as that I believe it would be disastrous and that we should protest against it. I thought I read in the Minister's speech in the Dáil that he was not of opinion that the deductions were illegal, but that as the question was raised he wanted to have any doubt there might be removed. Now we learn from one of the legal lights in the Fianna Fáil Party that these deductions were illegal all the time. I thought the opposite was the case.
I do not think Senator Douglas is entitled to indulge in the practice, which is becoming rather too frequent with him, of asking the Minister whether he agrees with the legal opinion of Senator Comyn. Now, on constitutional questions Senator Comyn's legal opinion is quite capable of standing by itself, whether the Minister agrees with it or not. What I do submit is this: that no Minister is legally entitled to withhold payment of salary. Now that is a simple proposition of law. But, suppose he does withhold payment of a percentage of salary, what offence has he committed? He is simply indebted to the particular civil servant for the time being in respect of the portion of salary which he deducts. If he says that he intends, as from 31st March or the 1st April, that those salaries shall be reduced, and if he does withhold that percentage of salary from the civil servant and gets statutory sanction for it, as he is seeking statutory sanction here, then the deduction that he makes becomes a perfectly legal deduction. Suppose you refuse to pass this Bill, what is the position then? What wrong has he done? If you refuse to pass this section, or to pass this Bill then the Minister becomes bound to pay to the particular civil servant that part of his salary which he has withheld. Now I seek no confirmation for that law, and I will very kindly invite Senator Douglas when he makes reference to me in connection with a legal matter to please consider that as a lawyer and as a man I am speaking for myself.
I should agree with a good deal of what Senator Jameson in a very thoughtful speech has said. I think that retrospective legislation as a class is to be condemned, but circumstances will arise in which Governments may have to legislate retrospectively, or in which they may have to seek legal confirmation for something which they have done over a period. For instance, if a Government is at war, at the conclusion of the war it finds that it may have done, or its servants may have done, many illegal things during the war, and therefore it passes an Indemnity Act. This sub-section might be classed as an act of indemnity and if any member would like to take it that way I personally would not try to argue another view of it. At any rate, the thing that does arise, in considering an act of indemnity, is that it should be considered on its merits, and that we should not reject a clause like this merely because of a general principle—merely because of the fact that we are opposed to retrospective legislation in general.
What are the merits in this case? The Minister for Finance had decided that, in order to make the Budget for the coming year balance, it was necessary that certain deductions should be made from the salaries of public servants. He could have made those deductions in a number of ways. He could have proceeded, I suggest, under sub-section (3) of Section 2 of the Ministers and Secretaries Act of 1924; he could have proceeded by way of special financial legislation which would have deprived the discussion which has taken place in this House on this Bill of a good deal of its value. If he had decided to proceed by special financial legislation, he could have made every one of these cuts effective by the mere passage of a Resolution in the Dáil. He could also have proceeded in a way that I think has not yet been adverted to: by an order under the Emergency (Imposition of Duties) Act. Therefore, there were three ways in which he could have proceeded: First, by a simple regulation; secondly, by special financial legislation and thirdly, by emergency order. Every one of these ways would have had great advantages from the point of view of the Minister for Finance. The demands upon his time and upon the time of the Government, would have been greatly reduced. The right of discussion would have been considerably curtailed, but every one of these ways would have imposed certain disabilities on civil servants and, at least two of them, would have deprived the transferred officer of certain of his rights. The effect of another one of them on the pension rights of individuals might have been very obscure, and would have been very difficult, at any rate, correctly to appreciate. It might leave these pension rights in danger.
The Minister, more out of regard for the rights of the persons affected under this Bill and for the rights of the Oireachtas, decided to proceed by way of a Bill. He had a definite sum in his mind which he knew he must secure. The question arose then, in securing that, was he to spread the burden of sacrifice over the twelve months of the year, or was he to concentrate it in the last half of the year, or the last two-thirds of the year, thereby making it, possibly, more difficult for the people affected by this Bill to suffer the deductions.
I think it will be conceded that he acted wisely and rightly: that since the Bill would inevitably become law or that, if it did not become law, some substitute would be devised by the Minister for Finance it was better to proceed to make those deductions at the opening of the financial year so as to spread the burden of them over the 12 months rather than allow the Bill to go through before any deductions were made and then in order to make allowances for them, to draft the schedules in such a way that whether the Bill took three months, six months, or nine months to pass through the Oireachtas the amount of money which the Minister for Finance wanted would be secured in any event. What was going to be the effect of that? It might possibly have meant that, if the Minister anticipated the Bill was going to take six or seven months to get through the Oireachtas and made provision in the schedules accordingly for collecting the £270,000 in seven months, six months, five months, or even three months if the Bill went through in three months, the people affected by it would pay more heavily than they otherwise would if the burden had been spread over 12 months and the schedules drawn up accordingly. A good many statements have been made here and it has been presumed that I have acted illegally throughout. I do not think that the House has quite grasped that, even in dealing with the ordinary remuneration of civil servants, during the past ten years, deductions have been made in every year in which the cost-of-living bonus has fallen from the salaries of the civil servants without there being any statutory authority for it and that, in fact, no specific statutory authority is necessary in order to make the deductions from the salaries of civil servants. The Estimates are submitted to the Dáil and a Vote on Account is taken at an early stage. The Minister in determining what the salaries of the civil servants are going to be, during the period covered by that Vote, does not look to any Statute of the Dáil at all. He looks to a figure that has been calculated by statisticians—the cost-of-living index figure—and he pays the civil servant accordingly. There is no statute which empowers him to do that and there is no statute which debars from doing that and there is no statute which generally fixes the remuneration of any civil servant. They are all of them fixed by regulation of the Minister for Finance and the Minister for Finance, under the terms of sub-section (3) of Section 2 of the Ministers and Secretaries Act has this power:
... there shall be paid out of moneys provided by the Oireachtas ...to such officers and servants such salaries or remunerations as the Minister for Finance may from time to time determine.
It is on that basis that these deductions in regard to cost-of-living bonus were made and they may be made from the preceding January and they may be made in June, but he does not come before the Dáil for a statutory confirmation in any way.
The one reason why this section appears here is because we elected to proceed by Bill and the Minister did not want, having elected to proceed by Bill for a number of reasons which were as much associated and, possibly, I should say more associated, with concern for the position of those who were to be affected by the Bill and for the rights of the Oireachtas, so that the matter might be discussed here as fully as possible and the pros and cons ventilated and argued in the proper way, to find himself in the position that he was either to be debarred from securing the economy which he felt was necessary or to be compelled in the latter portion of the year, to impose an undue burden on the persons affected by the Bill. Those are the merits of the case. It may be argued that this is retrospective legislation. It does operate to give statutory effect—and that is not quite the same thing as legalising—to the course which the Minister has pursued. Once again, I should like to emphasise that that is not the same thing as legalising. There was nothing illegal in what he did and nothing wrong. We could have done it without the Bill but we are simply giving statutory effect to what we have done in order, if you like, to exclude vexatious litigation of all sorts—litigation which we could, if it were to be initiated, quite easily spike by a number of powers which are vested in the Executive Council in regard to these matters—but, leaving that aside, I ask the Seanad to come back to this fact: if this were retrospective legislation, it must be judged as all retrospective legislation should be judged—on its merits as applied to the particular purpose of this or any Bill. I say that the section has been a beneficial section from the point of view of those affected by the Bill. It has not damnified them or prejudiced them in any way and, accordingly, I would suggest that the Senator ought to do withdraw his amendment and the Seanad, if he refuses to withdraw, ought to insist on its withdrawal.
I have only one or two observations to make after the Minister's speech. If I ever heard a plea of guilty in my life, it was the plea made by the Minister—guilty but with extenuating circumstances, and he throws himself on the mercy of the court. What I think is astonishing is that behind the Minister's argument is the implication that it does not matter whether a Minister acts legally or illegally, it is all the same in the long run. He challenges my statement that he has been guilty of an illegal act, from the 1st April, in making certain deductions from salaries. He has drawn a fine distinction between statutory and legal authority—a distinction which I find it difficult to appreciate in this particular connection. He says that he might have made these deductions in another way under certain powers. Why did he not do it? Because he did not exercise those powers and because he has omitted to do that, he proceeds to collect those deductions by a method for which he has no statutory authority. To take money from an employee for the taking of which there is no legal or statutory authority is capable of being defined in the single phrase "plain ordinary theft." The Minister admits that there is no statutory authority authorising or empowering him to make these deductions since the 1st April and that, in order to be indemnified, he has inserted this sub-section. With all his stream of words, phrases and analogies, which seem to have little application here, that is the one thing that emerges, and what I am mainly concerned with is whether this departure from fundamental principle is to be sanctioned by the Oireachtas and whether it is going to be regarded as a precedent for further inroads on that principle in future by the present Minister or other Ministers who may succeed him, because, in my opinion, it is a very serious and vital matter. It is from that point of view that I have raised this matter and not for the purpose of any party manoeuvring or any attempt to indulge in captious criticism of the Minister.
Inasmuch as Senator Milroy and Senator Jameson have raised the issue of high principle in regard to retrospective legislation— this, of course, deals with financial matters—I would remind them of another vote they gave and, in doing so, I am going to risk your displeasure, sir:
"Any offence (whether committed before or after this article was inserted in this Constitution or before or after Sections 4 to 34 of this article came into force) which is declared by the Treasonable Offences Act, 1925 (No. 18 of 1925), to be treason or a felony or a misdemeanour.
"Any offence under the Juries (Protection) Act, 1929 (No. 33 of 1929), whether committed before or after this Article was inserted in this Constitution or before or after Sections 4 to 34 of this Article came into force."
And the gentlemen protest against retrospective legislation!
That was the gentle reminder I was giving you. It happened a few years ago.
Amendment withdrawn.
Cathaoirleach
Amendment No. 2 and amendment No. 11 are more or less consequential on this amendment. I take it they are not moved.
There are nine amendments in all.
Cathaoirleach
Amendments Nos. 2 and 11 are certainly consequential and will not be moved, I take it.
Amendments 2 and 11 not moved.
Amendments 16 and 17 not moved.
Section 7 agreed to.
SECTION 8.
Every doubt, question, and dispute which shall arise as to whether a person is or is not a person to whom this Part of this Act applies, or as to the amount of the salary for the purposes of this Part of this Act of any person or the amount of the deduction to be made under this Part of this Act from any such salary shall be determined by the Minister whose determination thereof shall be final.
I move amendment 18:—
Section 8. To delete in lines 50-51 the words "whose determination thereof shall be final" and to substitute therefor the words "but nothing in this Act shall operate to restrict the right of appeal by any person affected to a court of competent jurisdiction."
The section gives the Minister power to decide every question that may arise with regard to the right to make deductions and, under it, the Minister constitutes himself judge and jury and, I think, executioner. In view of the fact that, apart from the civil servant and people actually in whole-time State occupations, this Bill will apply to several other people in respect of whom questions as to the right to make the deductions may arise, I think there ought to be some right of appeal to somebody other than the Minister. I can understand the Minister taking up this attitude with regard to the whole-time civil servant but, in view of the fact that this covers other people who are not full-time State employees, there ought to be some appeal against a decision.
It would be quite impossible to carry out what the Senator suggests. If a civil servant in a particular department is to have litigation in the courts or elsewhere with the head of his Department, it would be absolutely impossible to carry on public business. The head of a Department must have the final say in matters of salary and such things.
I think I explained that if it applied only to civil servants I would not have moved the amendment.
Whom else does it apply to?
Several other people who are not actually civil servants.
I think that an amendment of mine which follows and which deals with a similar principle will save time. I will not run the risk of incurring the displeasure of Senator Comyn by asking the Minister whether he agrees with him or not, but I will ask whether he agrees with the principle that this particular section does apply to anyone other than civil servants, because I think they are the only persons to whom this part of the Act applies. It really deals with civil servants and police and all the various people who come under Section 2 of the Bill. Since I put down the amendment I have read the report of the debate in the Dáil, from which I gather that the attitude of the Government towards it would be entirely non possumus. For my part I do not think there is the slightest use in either Senator Farren or myself taking up the time of the House at present with it. When I put down the amendment I had not read the debate in the Dáil. It is not a matter on which we should delay the House further and I therefore withdraw my amendment.
Amendments Nos. 18 and 19, by leave, withdrawn.
Section 8 ordered to stand part of the Bill.
I move amendment No. 20:—
New section. Before Section 9, and in Part II, to insert a new section as follows:—
9. Nothing in this Act shall take away, prejudice or in any way affect any right of any transferred officer, as defined by the Civil Service (Transferred Officers) Compensation Act, 1929 (No. 36 of 1929), under Article 78 of the Constitution or under the said Civil Service (Transferred Officers) Compensation Act, 1929, or any powers or jurisdiction conferred by the said Act upon the Civil Service (Compensation) Board established in accordance with the said Act.
I would suggest to the Seanad, in view of the fact that the officers referred to in this amendment are already covered by statute, we ought to ensure by this Bill that whatever rights they possess should be secured. They were transferred officers who had the right to opt out of the service if they wished and to get pensions. When we took them over in 1921 and 1922 we were faced with the position that we had to establish a Civil Service here. We had to create a Civil Service somehow or other. The civil servants already established had the right of opting out of the service and getting their pensions. Those of them who went out have since been enjoying pensions. We had to appoint others in their places and pay them in addition to paying these pensions. I think those servants who were patriotic enough to take service under our Government are entitled to consideration, and that whatever rights they have should be preserved. When I first took up duty in a native Government I was in a different position from that in which the Minister now finds himself. I had to sit down in an office in the City Hall and I had no civil servants. I and those who were with me had to establish a Civil Service. When the Minister came into office he found a Civil Service and a very efficient one already established. Civil servants are not obtained by putting advertisements in a newspaper, or in the casual way that one fills other positions. As I say, when the Minister came into office all he had to do was to hang up his hat. He had the Civil Service already created for him. We established that Civil Service and I think the Minister appreciates that as well as I do. I think these people are entitled to their rights, whatever rights they hitherto possessed. The object of the amendment is to preserve these rights, and I think the Minister should accept it without putting the matter to a division.
On a previous amendment moved by Senator Duggan, which was either withdrawn or defeated—I forget which—the Minister argued in favour of the principle of this particular amendment. At the end he expressed doubt as to whether he would accept it, though in favour of it, but otherwise he expressed the belief that this Bill did not, in effect, take away the rights granted under Article 10.
I think members of the House want to be quite clear as to the distinction between the two amendments. The last amendment took these particular persons out of the Bill, which meant that any cut would not be imposed on them. I think that would be grossly unfair to other civil servants, and it was a thing over which we could not stand. In this particular case there is a doubt expressed by responsible lawyers outside the House as to whether the Bill may not give rise to certain complicated matters under Article 10 of the Treaty. If you insert this amendment you will remove that doubt, and the result will be that you will have no trouble at all. If the cut is a temporary cut for one year, persons who have remained in the Service are not going to raise any trouble, unless they had previously intended to raise them before the tribunal, as to their rights for one year, but if you get uneasiness created as to how it affects them, you are almost certain to have a number of cases raised before the tribunal. I would suggest to the Minister that if his own statement in the Dáil is correct, that nothing in this Bill does affect their rights, there should be no objection to inserting the amendment. If there is doubt in the matter, and that he agrees it should not affect them, then equally there should be no objection to putting this amendment in. Certain doubts have been expressed, and the last thing that the Minister or anyone of us wants is to have uneasiness amongst these people. The last thing we want is to have them going before the tribunal. As the Minister does not think that the Bill affects them in any way, I think in the general interests that it would be far better to insert this section. I am not supporting the amendment for any ulterior motive. It is quite different from the other amendment, which I could not have supported.
There is one strong objection I have to accepting the amendment in its present form. That is that I am not quite certain what the effect of the words "under Article 78 of the Constitution" would be. I should also like to examine more carefully the general implications of the amendment. I have already had it examined, and I have been advised that it is unnecessary from the point of view of the preservation of the rights which transferred officers have already. There is, in the words of my advisers, a strong objection to putting a section into a Bill "merely out of a superabundance of caution." That is not my phrase. I am not prepared to ask the Seanad to reject the amendment as it stands, but if the Senator would withdraw it until Report Stage I would have an opportunity of thinking over it. I shall have the matter considered to see if there is any real danger to be created. If there is, I am prepared to consider some method of preserving their rights.
If the Minister is prepared to bring in something on the Report Stage that would meet my point I shall be glad to postpone the amendment until the Report Stage.
Amendment deferred to Report Stage.
Amendment 21 not moved.
I move amendment No. 22:—
Section 9. To add at the end of the section a new sub-section as follows:—
(6) Notwithstanding anything contained in the foregoing sub-sections of this section, this Part of this Act shall not apply to medical officers in the employment of any board, commission, company or other body such as is specified in sub-section (1) of this section.
The intention of this amendment is to exclude all medical officers, who are engaged in local services, from the operations of this Bill. I should like to put before the Minister a few instances of the medical officers who would be affected. There is, first, the county medical officer of health, who has a very important post. These posts have been created quite recently, and, therefore, any contracts that have been made are quite recent contracts. In order to become a county medical officer of health it is necessary for a medical man to have a Diploma of Public Health. He cannot take out that diploma until he has been qualified for two years—that is practically eight years from the time he starts his medical studies. There is no service that I know of that requires such a long and such an expensive training as the post of medical officer of health. Furthermore, such a medical officer has to obtain experience. He gets this experience, perhaps, in England or Scotland, acting as assistant under a medical officer of health there for two or three years, or, perhaps, he becomes a school medical officer or something of that sort. He, therefore, spends a long time in studying and in gaining experience before he starts on his life work. That is a very serious matter for a young person starting in a profession. When he does enter on his duties he has very responsible work. He has to safeguard the health of his district. He is continually engaged in work of supervision, to see that there is no unsound food or no contaminated food. He is responsible for the prevention of infectious diseases. He has to supervise child welfare work. He has to supervise the medical inspection of schoolchildren and the maternity work of midwives in his district or in his county. That is very important work, and I think there is clear evidence already that it is tending to reduce the maternal death rate.
For these reasons I think it is quite wrong to reduce the salary of a medical officer of health who has given up some post in England or elsewhere to come over here on the understanding that his salary should be so much. Such a reduction would make very material inroads on his income. Then if we take the medical officer, say of a county infirmary, he is a man who requires to have a long training in all kinds of operations. He must have a specialised training in many of the different branches of surgery—internal operations, operations to the ear, eye and so on. Although these medical officers have to be very skilled, they have not the opportunities of men who are practising surgery in a large city such as Dublin. If there are well-off people in their districts, these people come to Dublin to receive surgical treatment. Their fees consequently are very small. The next service, to which I will refer is the dispensary medical officer of health. Dispensary medical officers of health start at a salary of £175 rising to £350. It takes a considerable time before he can reach his maximum. Out of a salary of £175 he has to pay for a conveyance.
Cathaoirleach
The Minister informs me that none of these gentlemen come within the scope of the Bill.
I am very pleased to hear it. I understood from the discussion that took place in the Dáil that they did. There was very considerable discussion there on the matter.
They did at the outset, but there has been an amendment to Section 11 which excluded them.
Amendment, by leave, withdrawn.
Question—"That Section 9 stand part of the Bill"—put and agreed to.
SECTION 10.
Where a grant is made annually, under statute or otherwise, out of the Central Fund or moneys provided by the Oireachtas to any educational institution (not being a university, a university college or a secondary school) or to a board, commission, company, association, or other body (whether corporate or unincorporated) and such grant is wholly or partly available in the hands of such institution or body for the payment of the salaries of persons employed by such institution or body, there shall be deducted from the amount of such grant which falls to be made in the current financial year such sum as the Minister, after such consultation with the governing authority of such institution or body as he shall think proper, shall determine having regard to the proportion of such grant ordinarily applied to the payment of such salaries, to the deductions from salaries to be made under Part II of this Act, and to the other circumstances of the case.
Amendment 23 not moved.
I move amendment 24:—
Section 10. To add at the end of the section a new sub-section as follows:—
(2) Notwithstanding anything therein contained, the foregoing sub-section shall not apply to any university or university college.
Speaking recently the Minister stated that there was a disposition on the part of his advisers to set themselves out against the insertion of any section or sub-section which would make for superintendence of the universities. When the Bill came before the other House it was felt that under the section there might be interference with the autonomy of the universities, particularly the National University and its Colleges, and the Bill was amended by the Government, giving clear indication that it had not in mind to interfere in any way with the autonomy of the universities. The wording of the section appears to rule out the idea of any interference with the autonomy of the universities on the part of the Minister, but the words "or to a board, commission, company, association, or other body (whether corporate or unincorporated)" create a difficulty because they certainly cover the university. The Government having denied any intention of interfering with university autonomy in the Public Services (Temporary Economies) Bill, and having amended Section 10 have allowed this difficulty to remain, I want to know what exactly is in the Minister's mind in that respect. I would like him to be more explicit and to interpret this section not in the light of any Ministerial assurances but in the light of legal clarity.
I am almost sorry that I have not the advice of some legal Senator in this matter. We have not heard an expression of opinion from some of the legal Senators on it. I am again advised that there cannot be any inconsistency in the construction of the section, that, as the first part clearly excludes a university, university college or a secondary school from its operations they could not possibly be brought in.
"Where a grant is made ... by the Oireachtas to any educational institution (not being a university, a university college or a secondary school)".
It excludes them as educational institutions.
If it excludes them as educational institutions it cannot bring them in as "a board, commission, company, association or other body (whether corporate or unincorporated)." I had that specific point looked into, and I am assured that is the position. It seems clear to me, from the fact that we have to take special power in Section 13 to deal with grants to universities, that the sections must be consistent with each other. I am advised that the insertion of the amendment now proposed is unnecessary.
I think there is more in this than the Minister sees. Senator O'Hanlon was not present when I heard two lawyers debating this section, and they convinced me that the section was not clear; that it laid itself open to doubt. That also applied to Section 12. I think the Minister's point in regard to having to insert Section 13 is not a good one. Without Section 13 and without these exemptions power would have been given to the Minister, or to the Government, to dictate to the universities the exact way they were to apply the particular cuts that were to be made. I understand now that under Section 13 the Minister may deduct up to but not exceeding 5 per cent. from the grants. What we are anxious to achieve, as far as the universities are concerned, is that while they may suffer a deduction from grants, it is up to the governing bodies to decide how to deal with them, and that the Minister should have no authority. In Section 10 the Minister has power, in the case of an educational institution (not being a university, a university college or a secondary school) or a board, commission, company, association or other body (whether corporate or unincorporated). It was intended to take out universities. I think the words "not being a university, a university college or a secondary school" are in the wrong place. They might be held to apply to other bodies. There is something there requiring attention. I have great sympathy with Senator O'Hanlon's point of view. This is not a Party matter at all. The people in the universities are extremely anxious to have it beyond doubt that, as far as the control of their body is concerned, they are not under Ministerial influence. I should like to say that the Minister has not been attending this House very long, and has not had the pleasure of knowing what happened under the previous Government. If he did he would know that amendments were inserted where there was any doubt. If the Minister looks up the debates he will be amazed at the number of amendments inserted in this House which, on further consideration, never came back.
The University made no representation to me that the section was ineffective. I met representatives of the University and of the constituent colleges and had very long and frank discussions regarding our attitude towards the University, and what we had in mind when the Bill was drafted. I indicated the manner in which I proposed to proceed and, on that basis, reached an understanding which I believe was satisfactory to them and satisfactory to me. On the basis of that we put in an amendment to the Bill in the way I have described by inserting the words "(not being a university, a university college or a secondary school)" and I inserted a new Section 13. I have not heard from the university since.
Perhaps it will help the Minister if I state that one of the persons I heard discussing it was a representative of the university.
The universities have not approached me saying that in their opinion the section does not safeguard them. If they had taken legal advice on the matter and came to me I would certainly have felt possibly less confident than I do in the matter.
I think they are trusting the Oireachtas to see that it is put right.
Might the position be that these representatives would be in a worse position if they had not accepted what might be regarded as the Minister's concession?
The Minister might have "stood pat," parallel with the case of a traveller going along the road who has his money taken by a highway man, and being afraid that his life might be taken he says: "There is more money in such a place." That might hold good and might be the reason that no representations were made since by the University representatives.
I do not think that is how we discussed the matter.
Amendment, by leave, withdrawn.
Section 10 ordered to stand part of the Bill.
SECTION 11.
(1) Where a grant is made annually, under statute or otherwise, out of the Central Fund or a fund under the control of a Minister or out of moneys provided by the Oireachtas to any local authority or to any committee or other body the members of which are appointed wholly or partly by a local authority and such grant is wholly or partly available for the payment of salaries there shall (save as is otherwise provided by this section) be deducted from the amount of such grant which falls to be made in the current financial year such sum as the Minister, after consultation with every other Minister who appears to him to be concerned, shall determine having regard to the proportion of such grant ordinarily applied towards the payment of salaries, to the deductions from salaries to be made under Part II of this Act, and to the other circumstances of the case.
(2) No deduction shall be made under this section from a grant to a local authority, committee, or other body for or in respect of services administered by or under the control of the Minister for Local Government and Public Health where the Minister is satisfied, after consultation with the Minister for Local Government and Public Health, that such body has made, from the salaries earned and payable in the current financial year by and to persons in the employment of such body, deductions approved of by the Minister after such consultation as aforesaid.
Amendments 25, 26 and 27 not moved.
I would like to ask the Minister to explain the meaning of sub-section (2) of this section. (Sub-section read.)
The sub-section is complementary to the provisions of a Bill which was introduced in the Dáil to-day, and which will give the Minister for Local Government and Public Health power to prescribe that deductions shall be made from the salaries of certain officers employed by local authorities. The purpose of the section is to give the Minister for Finance power, in the event of the local authorities not acting in accordance with the regulations of the Minister for Local Government and Public Health, to make deductions from grants which normally would be payable to them.
Deductions approved by the Minister?
Cathaoirleach
If the Senator thinks an amendment is desirable perhaps he would bring one in on the Report Stage.
Does this Bill give power to make deductions from the salaries of county council officials? I understood it did. It is quite clear that under Section 11 deductions may be made from grants to local authorities. It is clear that the Bill applies to officials of county councils.
No. The deductions can only be made in cases where the local authorities refuse to make the deductions prescribed by the Minister for Local Government and Public Health from salaries paid to their officers.
That will come under a subsequent Bill. Any deductions that this Bill brings about will go back to the Central Government and not to the county councils.
That is the meaning I take out of it.
Only in the event of local authorities refusing to make the deductions prescribed by the Minister are they going to be further penalised. This is gentle coercion.
Section 11 agreed to.
SECTION 12.
Amendment 28 (Senator O'Rourke), amendment 29 (Senator Milroy), amendment 30 (Senator O'Hanlon) not moved.
Section agreed to.
SECTION 13.
This Bill empowers the Minister to cut the statutory grants to the universities. Otherwise, the Bill deals with the question of salaries. I wonder why this provision is reserved in a Bill dealing with salaries. Would the Minister be good enough to explain that? The proper way to deal with statutory grants to universities would be in a Bill for that purpose on which the merits of the matter could be fully debated. The Minister is empowered in this Bill to cut the statutory grant to the universities to the extent of 5 per cent.
That provides the Minister with a weapon which he can hold over the universities. It gives him power to interfere with their autonomy. It is the thin end of the wedge in introducing interference and I should like to know why that provision is there. The Bill deals with the cutting of salaries. This section deals with the statutory grants to universities. It may have no reference to the salaries of the professors; it may be spread over many other things. I feel inclined to introduce an amendment on Report Stage, but I should like to hear what the Minister has to say on the matter.
I think that the Senator is in error in stating that this Bill deals only with salaries. The title of the Bill recites that it is an Act to make or provide for the "making of deductions from remuneration ... and also to make or provide for the making of deductions from certain classes of grants ... and to provide for other matters connected with the matters aforesaid."
Sections 10 and 11 deal with deductions from grants to certain classes of bodies and grants to local authorities. Section 13 deals with the specific case of universities. As its short title indicates, this is a Bill to make temporary economies in the public services, including the service of the universities. There is nothing in this Bill which gives the Minister power to dictate in any way to the universities as to how they will carry out the retrenchment which reduction of their grants necessarily involves. I do not see that there is any point in the statement by Senator O'Hanlon—that we are interfering with the autonomy of the universities. The university authorities themselves, after a fairly frank and full discussion; are satisfied that we are no longer interfering with them—that, in fact, we never had in mind interference with the autonomy of the universities.
The universities are of that opinion?
Does not the Minister think that the whole question of university education is sufficiently important to warrant a Bill in itself? That question has already been referred to in connection with the Gárda. Surely, the question of university education is one that should be debated on its merits. The Minister should not interfere with a statutory grant to the universities except by means of a specific Bill.
What would be the advantage? We should have to make the deduction in any event. This Bill has had a fairly stormy passage through both Houses. It was fully discussed. A large part of the discussion on Committee Stage and on the Fourth and Fifth Stages in the other House related to the universities. From the point of view of the universities the Bill was adequately discussed. If we had decided to deal with the universities in a separate Bill we should have had the same discussion. There would be no advantage. There would, in fact, be a great disadvantage, because we should have wasted twice as much Parliamentary time, and other and more important measures would, consequently, have been held up.
Section agreed to.
Section 14 agreed to.
SCHEDULE.
Amendments 31 (Senators Farren and O'Farrell) and 32 (Senator Milroy) not moved.
Part I of Schedule agreed to.
PART II.
Rates of deduction from salaries of members of the Gárda Síochána.
I move amendment 33:—
Part II. To delete Part II.
This amendment is consequential.
Amendment agreed to.
Amendments 34 and 35 (Senators Farren and O'Farrell) not moved.
PART III.
Amendments 35 to 40 (Senators Farren and O'Farrell) not moved.
Part III of Schedule agreed to.
PART IV.
Amendments 41, 42 and 43 (Senators Farren and O'Farrell) not moved.
I move amendment 44:—
Part IV. Before the word "artizans" in paragraph (b) to insert the words "scale payment sub-postmasters and sub-postmistresses."
This amendment deals with sub-postmasters and sub-postmistresses. As everybody knows, the allowance made to these people is ridiculously low and inadequate, and I suggest to the Minister he should exempt them altogether from the operations of the Bill. I do not know whether this economy will mean much money. I do not think it can, because the allowances are very small. It was demonstrated in the Dáil that in many cases the allowances these people get can hardly cover expenses, allowing for rent. They have even to supply paper and ink and accommodation for the public. Except to the extent that this office gives the holders a little standing in the locality, it is of no consequence at all. I am sorry I have not the rates here showing what the allowances are. They are astonishingly low, and I suggest that the Minister should consider this amendment favourably.
It may be true to say that the amount of money involved in this amendment is small, but the question of principle arises. I do not see how we could exclude these people from the Bill and not exclude other part-time officers who may be receiving payment from the State on a considerable scale. In some cases, the scales for these sub-postmasters and sub-postmistresses reach as high as £400. At the other end of the scale, payment is conparatively small—down to about £18. We are only regarding one-third of the payment made to them as salary: we are taking it that the other two-thirds covers expenses—rent and other things. While the practical effect of accepting the amendment would not be very great, the question of principle involved would be great.
If I accepted this amendment, I should find it difficult to exclude part-time employees such as medical men, lawyers—I see that I am getting support for the amendment now—architects, engineers and others who receive considerable part-time payment and who, consequently, should suffer a "cut." On the question of the smallness of the remuneration, I ask the Seanad to remember that the smaller amounts are paid as a sort of rental for counter-space. That is really what it amounts to. The fact that the post office is situate in a certain shop and that the occupier gives portion of the window and counter space to the post office is a decided attraction to the premises. It is a good advertisement. If we were to put these places up to tender, I am certain that instead of having to pay people for keeping them, people would pay us for the privilege of having them. On its merits, there is very little to be said for this amendment.
I do not wish to press the amendment at this stage. I may raise a similar question later.
Amendment, by leave, withdrawn.
Part IV of Schedule agreed to.
Title agreed to.
Bill reported with amendments.
Report Stage fixed for Wednesday, July 26.
The Seanad adjourned at 10.45 p.m. until Wednesday, 19th July, at 3 p.m.
