Military Service Pensions Bill, 1934—Committee.
SECTION 1.
I move amendment 1:—
Section 1. After line 24 to insert the following "(f) Cumann na mBan".
Judging by the discussion that took place on the last occasion that this Bill was before the House, everyone admits that it was very well received by all parties. It was received unanimously by the Opposition Party. I hope the Minister will accept this amendment in the same spirit. If he does, it will promote what we want most in this country, unity, concord, and peace. It will do away with the bitterness of the Civil War. The sooner that bitterness disappears the better. Most of the amendments standing in my name are, so to speak, levelling up amendments, to give the same rights to people who fought for Ireland before the Civil War, and who took no active part in that conflict, as are given to those who took part in the Civil War. As I stated on the Second Reading, Cumann na mBan were just as useful and did as much solid work for Ireland in the Insurrection and in the Black and Tan War as the five other bodies mentioned in the Bill. All are justly included. In order to be fair to all I am asking that Cumann na mBan should be included.
The Government has decided to accept this amendment. I want to point out, however, that the same test of service will be applied to women as was applied to men and that that will result, in my opinion, in very few being granted an active service certificate. If the Seanad inserts this amendment, I propose on the Report Stage, to move a further amendment to the Bill which will have the effect of ensuring that while members of Cumann na mBan are treated equally with men, they will not be treated better. If the officers of Cumann na mBan of nominal high rank were treated in the same way as officers of the Volunteers there would be a very big discrepancy, because their responsibilities were not as great. I propose to introduce an amendment to make it clear that if a member of Cumann na mBan was in charge of 100 other members, or was senior in rank to a person in charge of 100 members, or members of the executive, that person will be treated as Rank D; that is a £10 a year scale, and below that in seniority will be treated in Rank E. It means that no member of Cumann na mBan will be graded higher than Rank D. I think it is only fair to say that while Cumann na mBan had a national organisation, they acted as auxiliaries to the local units of the Volunteers or I.R.A. I think that will meet the case.
Cathaoirleach
Amendment agreed to.
Section 1, as amended, and Section 2 agreed to.
SECTION 3.
This Act applies to every male person—
(a) who served in the forces at any time during the week commencing on the 23rd day of April, 1916, or who served in the forces continuously during either of the following periods, that is to say, the period commencing on the 1st day of April, 1920, and ending on the 31st day of March, 1921, and the period commencing on the 1st day of April, 1921, and ending on the 11th day of July, 1921, and
(b) who served in the forces at any time during the period commencing on the 1st day of July, 1922, and ending on the 30th day of September, 1923, and
(c) who is not a person to whom the Act of 1924 applies.
I move amendment 2:
Section 3. To delete in line 14 the word "male."
Amendment agreed to.
I move amendment 3:
Section 3. To delete in line 19 the figures and words "1st day of April, 1920" and to substitute therefor the figures and words "1st day of January, 1919."
There was a printer's error in the date. I want the date to be the first day Dáil Eireann sat.
This period of service is exactly similar to the date in the 1924 Act. In that Act there were three periods—1916; 1st April, 1920, to the 1st April, 1921, and the last four months from the 1st April to the 11th July, 1921.
Amendment, by leave, withdrawn.
Amendment 4 not moved.
I move amendment No. 5:—
Section 3. To delete in line 26 the words and figures "to whom the Act of 1924 applies" and to substitute therefor the words and figures "in receipt of a military service pension under the Acts of 1924 to 1930."
The Act applies to some persons who are not drawing pensions because they were late in applying. As there are only a few concerned it is only fair to put them in. If the word "applies" remains in the section it will prevent them applying.
As a matter of fact, the Bill, as a whole, is not drafted in such a way that it applies to anyone to whom the 1924 Act applies. That Act is still there. This section is worded in this way in order that we might not now have to re-try the 25,000 cases that applied under the Act of 1924. We do not want to have to re-try all these cases again, and to put these people to the trouble and expense of applying again. They would apply if they thought there was any hope. The Act of 1924 still covers people governed by it.
These were late in applying.
I know they were late. The last Government had seven years to deal with the matter from 1924, and under the terms of the Act they had power to prescribe the time within which applicants could apply. They extended it for one or two periods, and, I take it, that they would have extended it still further, as there was power to do, if they thought there was any particular reason for doing so. The Bill is still there, and if a case was put up to the Government, and proved home, they could extend it if they so wished. That Act is still there and covers late applicants, if there are such, but no representation has been made to the Government. I have been in the Department of Defence for 2½ years, and no case was put to me, beyond a passing reference by Deputy Cosgrave in the Dáil.
I make representation now. As a matter of fact, I have some letters here, but as I have only the use of one hand to-night it is not easy for me to turn them up. There are only a few cases as far as I know. Some men went to Canada and were away two years, and when they were eligible to apply they neglected to do so. Probably some did not know about it. There is very definite hardship in these cases. One man was away on a vessel. That particular man happened to be blown up in an ambush before the time of the civil war. I suppose he would be eligible for a wound pension but he does not seem to have applied for that either. He writes to me now to see if I can get him a pension.
Even if this amendment were carried it would not cover the cases.
If the Minister accepts amendment No. 6 I will be satisfied.
That would not meet the case either.
Amendment No. 6 would allow them to make application before the 1st day of November, 1935, provided they were qualified for a pension under the Acts of 1924 to 1930.
That man is qualified for a pension under the Act of 1924.
If he wants to get his full rights under the 1924 Act the only way it can be done is by an extension of the time under the 1924 Act.
Will the Minister extend the time?
That is a thing I am not prepared to promise. No case has been submitted to me, with the exception of a passing reference in the Dáil by Deputy Cosgrave. I pointed out to him at the time that no case had been made to me, that I had no pressure put upon me for it, and that he had six years to do it if he had been pressed.
There are a whole lot of things that should have been done in the six years and even in the ten years that were not done. We want to progress a little bit. As I said before, we have met the Government generously on this Bill and when we ask for a small thing like this for our people we should be met in the same spirit.
I am not in a position to promise it.
Then I am afraid I shall have to put it to a division. I withdraw amendment 5.
Amendment, by leave, withdrawn.
I move amendment 6:
Section 3. To add at the end of the section the following:—
(d) who makes application before the 1st day of November, 1935 and is otherwise qualified for a pension under the Acts of 1924 to 1930.
I have dealt with that already and if the Minister cannot accept it I must put it to a division.
As I understand, the number of people involved in this are very few. The Minister says that he has never had an application from anyone up to this.
I am sure they came into the Department—as a matter of fact, I know a few cases did. I was informed yesterday of that. There was, however, no pressure in the ordinary way brought to bear upon me. They wrote to the Department in the normal way. I understand there are not very many.
If there were many I think the Minister would have found that there was a great deal of pressure brought to bear on him. That argues, I think, that the number who will apply for this will be very small. May I suggest, therefore, that between this and the Report Stage the Minister will look into it and see if he will not agree to accept the amendment?
Even if we accepted the principle that the 1924 Act should be extended it would not be done in this way, but by an ordinary regulation made extending the time.
It would suit me if you did that.
That would not require new legislation?
I think the Minister is throwing out broad hints to Senator Staines and others to bring something like a prima facie case before him for the extension by regulation of the Act of 1924. The Minister has the power at present, and all he is asking for now is information upon which he can act.
I will send him the information.
Cathaoirleach
Is the amendment withdrawn?
Amendment, by leave, withdrawn.
The following amendments appeared on the Order Paper:—
7. Section 3. To add at the end of the section a new sub-section as follows:—
(2) Where a male person who is not a person to whom the Act of 1924 applies and who is not a person to whom, by virtue of the preceding sub-section of this section, this Act applies, has either—
(a) served in the Forces at any time during the week commencing on the 23rd day of April, 1916, or
(b) served in the Forces continuously during the period commencing on the 1st day of April, 1921, and ending on the 11th day of July, 1921, this Act shall, notwithstanding anything contained in the foregoing sub-section of this section, apply to such person, but with and subject to the modification that, in respect of such person, the expression "the first critical date" shall be construed as meaning the date during the said week or, if he did not serve during the said week, during the said period, on which he first served in the Forces in such week or such period (as the case may be) and the expression "the second critical date" shall be construed as meaning the earliest date in the period between the first critical date in respect of such person and the 12th day of July, 1921, on which such person held his highest rank in such last-mentioned period in the Forces.— (Senator Séumas Robinson.)
8. Section 3. To add at the end of the section a new sub-section as follows:—
(2) Where a person who is not a person to whom the Act of 1924 applies and who is not a person to whom, by virtue of the preceding sub-section of this section, this Act applies, has either:—
(a) served in the Forces at any time during the week commencing on the 23rd day of April, 1916, or
(b) served in the Forces and was engaged in or gave assistance in military activities during the period commencing on the 23rd day of April, 1916 and ending on the 1st day of April, 1920, or
(c) served in the Forces continuously during the period commencing on the 1st day of April, 1921, and ending on the 11th day of July, 1921,
this Act shall, notwithstanding anything contained in the foregoing sub-section of this section, apply to such person but with and subject to the modification that, in respect of such person, the expression "the first critical date" shall be construed as meaning the date during the said week or, if he did not serve during the said week, during the said period, on which he first served in the Forces in such a week or such period (as the case may be) and the expression "the second critical date" shall be construed as meaning the earliest date in the period between the first critical date in respect of such person, and the 12th day of July, 1921, on which such person held his highest rank in such last-mentioned period in the Force.—(Senator Staines.)
Cathaoirleach
Amendments Nos. 7 and 8 are competing amendments and I shall allow them to be argued together. Then I shall put No. 7, and if that is carried No. 8 will not be moved. The word "male" must be deleted from amendment No. 7 now that we have passed amendment No. 2.
I was introducing an amendment on the Report Stage to delete the word "male," but it can be deleted now.
Cathaoirleach
Yes, it had better be taken out now.
Agreed.
I move amendment No. 7, as amended by the deletion of the word "male" in line 1.
The amendment was drafted to meet the case that was put up for granting pensions to men who took part in the Easter Week rising only or men who took part in that and continued through the Black-and-Tan war and whose service ended then. The second part is to meet the case of men who had continuous service during the last four months of the Black-and-Tan war from 1st April to 11th July, 1921. If a man had active service during that period then that can be counted as service during the Black-and-Tan war.
With regard to Senator Staines' amendment, I think the Senator who is sitting on his left can give him some information as to the breach that that amendment would open. The Senator wants a pension to be given to anybody who "served in the Forces and was engaged in or gave assistance in military activities during the period commencing on the 23rd day of April, 1916, and ending on the 1st day of April, 1920." The first thing is that they gave assistance. That is a pretty wide term. Everybody gave assistance; the whole population gave assistance. The second point is that the Bill, with Senator Robinson's amendment, is providing for people who took part in the Easter Week rising or who served continuously during the last four months from 1st April, 1921, to 11th July, 1921. Then if they had any additional service it will count for pensionable purposes. I do not think that the Senator ought to press his amendment in these circumstances.
There is a year more in the Bill than in Senator Robinson's amendment. If the dates are made the same as in the Bill, I shall accept the amendment.
Under this there are two qualifying periods. One is Easter Week 1916 and the other is the last four months of the Black and Tan war. There was a third qualifying period under the 1924 Act—that was from 1st April, 1920, to 1st April, 1921, but in addition to service during the Black and Tan war the men had to have a civil war service. I think that a man who had that year's service during the Black and Tan war and who did not continue should not get a pension.
If his active service was interrupted by imprisonment, or breakdown in health, it counts for pension purposes; it does not count as an interruption of his services. But if he gave up before the truce I do not think he is entitled to pension because of his service solely during the Black-and-Tan years. The critical periods are contained in the amendment moved by Senator Robinson, namely, the period of 1916 or the period commencing 1st April, 1921, and ending 11th July, 1921. If a person did not serve continuously between one of those periods I do not think he is entitled to a pension.
I want to ask a question with regard to Easter Week. There were a number of women who acted as nurses during that week. Would they be members of Cumann na mBan or would they be acting by themselves? I remember seeing two women lined up outside the Gresham Hotel with the men on the occasion of the surrender. These women acted as nurses, and a number of other women acted as nurses in other places as well. I do not know whether they would be members of Cumann na mBan.
I think the Cumann na mBan were out during Easter Week and did nursing and other duties.
I accept Senator Robinson's amendment.
Cathaoirleach
I now put amendment 7, moved by Senator Robinson, with the omission of the word "male".
Amendment, as amended, agreed to.
Amendment No. 8 not moved.
Section 4 agreed to.
Question proposed: "That Section 5 stand part of the Bill."
On Section 5, I think it is desirable that the Seanad should realise at this stage the position of the referee. He has tremendous powers. Under the old Act there was a board of assessors, consisting of one person who had had either judicial experience or was a barrister, assisted by other persons who, as it happened, were members of the Government at the time. Under this Bill, a referee is to be appointed, and not a board, and he is to be assisted by an advisory committee. I think it is desirable the Seanad should realise the position of the referee. He will be asked to examine claims that are referred to him and the Minister may make rules regulating his procedure. He may deal with matters almost privately, certainly in camera, and there will be no publicity. He will be awarding £400,000 a year for a period of 30 years, or £12,000,000 roughly. When the referee has made his report the Minister is bound to issue a certificate. According to a recent judgement, if I understand the position rightly, wherever a certificate is issued there will be no alternative but to grant the pension. I am calling attention to this because I want to lead up to an amendment of mine later, to make the House realise how great the powers of this referee will be. He will have to decide an expenditure of, perhaps, £12,000,000 over the next 30 or 40 years. If the period be 40 years the amount will be more. The power of this referee will be greater financially than almost any other person in the State. He will, as things are, be the sole custodian of the material upon which he bases his report to the Minister. The Minister will then have to issue a certificate and the Minister for Finance will have to pay the pension. I am calling attention to this matter as a preliminary to an amendment which I will move later.
If Deputy Johnson is basing his amendment on the interpretation of Section 10, he will find he will have to change his view. The Minister is not bound to issue a certificate. The recent court decision was that if a certificate is granted a pension cannot be refused, even though to the ordinary person the section of the 1924 Act would seem to imply the Minister had that power even though the certificate was granted. But under the section here the certificate is issued by the Minister, not by the referee, or the board of assessors under the 1924 Act. "Where it appears from a report under this Act that the person to whom such report relates is not a person to whom the Act applies, the Minister shall refuse to grant to such person a service certificate." It is in the Minister's discretion.
Will the Minister read sub-section (2)?
Yes. "Where it appears from a report under this Act that the person to whom such report relates is a person to whom this Act applies, the Minister shall, subject to the provisions of this section, grant to such person a service certificate." That is, if it appears to the Minister. If it is a fact that the man had the necessary service the Minister will give him a certificate. The referee frames his report after having heard the case of the applicant in the presence of the board of assessors. The board will contain two members appointed by the Government, one appointed by the Minister for Finance, and one by the Minister for Defence; so that the full facts of the case are known to two Government Departments whose nominees are on the Board.
Question put and agreed to.
Sections 6 and 7 agreed to.
SECTION 8.
(1) The Minister shall refer every application for a service certificate to the Referee and thereupon the Referee shall investigate such application and make a report to the Minister thereon in accordance with this section.
(2) Every report by the Referee on an application for the grant of a service certificate referred to him shall contain findings on the following matters, that is to say:—
(a) whether the applicant is or is not a person to whom this Act applies;
(b) if the Referee finds that the applicant is a person to whom this Act applies—
(i) the service period during which the applicant served in the forces, the particular military body or bodies (being part of the forces) in which he served during each such service period, and the duration within each such period of his service in each such body, and
(ii) the grade of rank in the forces held by him on the second critical date, and, if he was serving in the forces on the first critical date, the grade of rank held by him on that date.
(iii) such other matters as may be prescribed.
I move amendment No. 9:—
Sub-section (2). To delete line 29.
This is a matter I am not so sure about. The section is to the effect that the Minister shall refer the application to the referee, and the reports of the referee shall contain findings on certain matters—that is to say, whether the applicant is or is not a person to whom the Act shall apply, and if the referee finds he is a person to whom the Act applies, then the report shall find certain material, such as the period of service and the grade of rank. These would appear to be important matters, upon which the referee would have to report. Then comes the question whether under paragraph (3) the Minister would prescribe other matters under any of the issues. It may be said that inasmuch as this paragraph (3) follows paragraphs (1) and (2) in the manner implied, it is ancillary to the previous paragraphs, but I am doubtful about that, and I am wondering whether this does not give the Minister power to prescribe matters upon which the referee shall report, quite apart from what is in the section. Does it give him a free hand, or must those things which he shall prescribe be supplemental to and illustrative of the service and grade?
That sub-section was put in so that when the referee's report would come up, the person reading it would have a fair indication of the things upon which the referee bases his report, favourable or unfavourable, and from that point of view there are certain other things to be considered, even apart altogether from the administrative point of view of checking up upon the referee's work—there are other reasons, and I should like to see other reports in detail; that is, from the historical point of view. There are things that would be very costly to repeat, and it would be a good thing to have a list of these things throughout the country. That would be a good thing upon which the referee could report. It does not take away in any way from the applicant's rights. The referee reports on the service periods and the grade of rank in the forces. Those are the vital things from the point of view of granting a pension, but then, in addition to that, from the point of view of administration and of history, I think it is only right that other things should be prescribed.
I had no thought of disabling the applicants, but rather to inform the referee. However, I am not laying too much stress upon it, and I am not pressing the amendment.
Amendment, by leave, withdrawn.
Section 8 agreed to.
SECTION 9.
I move amendment No. 10:—
Section 9. To add at the end of the section the words: "provided that nothing in this section or any other section of this Act or of the Act of 1924 or the Act of 1925 or the Act of 1930 shall be construed as limiting in any way the duties and powers of the Comptroller and Auditor-General as defined by the Constitution of the Irish Free State (Saorstát Eireann) Act, 1922 (No. 1 of 1922) and the Comptroller and Auditor-General Act, 1923 (No. 1 of 1923)."
I think that in coming to the amendment to Section 9 I must refer to Section 10 and the Minister's statement just made. Whatever may be the position of the Pensions Act of 1924, Section 10 provides that when the referee has reported that an applicant is a person to whom the Act does not apply, then the Minister shall refuse a service certificate—which is obvious. But when it appears from the report of the referee that the person to whom such report refers is a person to whom the Act applies, then he shall grant a certificate, subject to the provision in the next sub-section which gives him power to refuse to grant such a certificate if a court of competent jurisdiction has sentenced the person to imprisonment and so on. So that, once the referee has reported in favour of the person, the Minister has no option but to grant a service certificate, and then, as I understood the recent judgment, once the service certificate is granted, the pension must follow.
Section 9, which I seek to amend by an addendum, provides that the findings of the referee shall be final and conclusive and binding on all persons and tribunals whatsoever. That is taken out of the previous Military Service Acts, but there has been read into that a meaning which debars the Comptroller and Auditor-General from fulfilling his functions as the Auditor-General as appointed in accordance with the Constitution. The Constitution provides for the appointment of the Comptroller and Auditor-General and requires that he shall examine every Appropriation Account on behalf of the Dáil. It lays down that he shall be appointed and shall audit all moneys administered by or under the authority of the Oireachtas. That is a Constitutional provision and the Comptroller and Auditor-General Act follows it up by indicating and requiring that in the examination of such expenditure he shall ascertain whether it is for the purpose of such accounts that it has been intended to provide. The findings of the referee under this section, as under the previous Act, are stated to be final and conclusive and binding on all persons and tribunals whatsoever. The question arises whether this is an amendment of the Constitution regarding the Comptroller and Auditor-General; whether it can be effective as against the constitutional provision, or whether the Minister or the Ministry—this or any future or past Ministry—has power to deprive the Comptroller and Auditor-General of the material on which he can conduct his audit. This matter, of course, was discussed pretty fully before, and a provision of this kind was inserted in a previous Bill, but I do not think it closed the matter completely, and I am seeking to make it clear that, notwithstanding this reference to finality against any tribunal, that does not and should not debar the officer of the Dáil, who has to audit on behalf of the public the accounts of the administration, from examining the accounts and reporting upon them to the Dáil. Therefore, I am asking to put in the proviso that nothing in this section or in any other section of the Bill or in previous Acts shall be construed as limiting in any way the powers and duties of the Comptroller and Auditor-General as defined by the Constitution Act or the Comptroller and Auditor-General Act. If he had not those powers under these Acts then there is nothing of any importance in this. If he had those powers that I maintain he had by constitutional authority and by practice, then these provisions could not be held to override the provisions of the Constitution.
I pointed out earlier how great is the power that is being conferred on the referee. This means the expenditure over the next 30 or 40 years of anything from £10,000,000 to £12,000,000. Nobody, I think, is in a position to give the exact figure, but at any rate it is going to mean the expenditure of a very large sum of money over a very long period, and, as I have said, even the Minister is deprived of power as against the referee. The Minister said that he will have the assistance of the members of the committee to be appointed by the Ministries. That is true, but they have no power as against the referee. They cannot override the referee even by a majority. The referee is the decider in this case. Further, one has to bear in mind that the tendency, the inevitable tendency, I think, of such a tribunal would be to be favourably disposed towards the pensioner or applicant. I am not objecting to that, but I am concerned about the danger of this kind of provision coming into our legislation depriving the audit authority of the power to audit thoroughly the expenditures of the State.
My amendment would apply not only to the pensions under this Bill—I make that frank avowal—but to the pensions granted under the other Acts, and if it were ever thought necessary it is intended to reinstate the Comptroller and Auditor-General in the position that he was placed in by the Constitution and by the Comptroller and Auditor-General Act. When the departure from those Acts was made there was a certain tension, perhaps a feeling of a partisan kind, that may have caused the Ministry of the time to take the action they did. I think that is past, and consequently it is very desirable that these reassurances should be inserted in this Bill to the effect that this provision shall not be taken as over-riding either the Constitution or the Comptroller and Auditor-General Act.
I would again point out that there are numerous Superannuation and Pension Acts which provide that the decision—in our case it would be that of the Minister for Finance, and in the period before the Free State was established it was that of the Chancellor of the Exchequer—on these matters shall be final, but notwithstanding the finality of the decision of these authorities it has always been recognised, and recognised up to date, that the Comptroller and Auditor-General in these pension and superannuation cases has the right, and is clearly allowed, to examine into the basis of the grant. It is on that precedent, as well as the Acts, that I seek that this amendment should be inserted in the Bill.
I have no objection to this amendment being accepted, and I certainly have no desire to restrict or circumscribe in any way the powers of the Comptroller and Auditor-General. There is this point that I would like to put to Senator Johnson. Within the past few years we have had civil servants of various grades going before the High Court seeking authority to get a larger pension than that which the Minister for Finance wished to give them. In one case that I know of the court upheld the contention of the applicant. Does Senator Johnson wish to contend that the Comptroller and Auditor-General can reverse the opinion of the High Court on such a matter?
If he does not, I do not see what objection he can have to the decision of the referee in this matter.
Senator Johnson is anxious that nothing in this Bill or in any previous Act should debar the Comptroller and Auditor-General from fulfilling his functions as auditor. As a matter of fact this section does not debar him from doing that. What it does is this: it prevents him from assuming, or from having imposed upon him, functions which do not properly belong to an auditor. Nothing in this Bill debars the Comptroller and Auditor-General from seeing the certificate and satisfying himself that the referee had, in fact, reported, first of all, in favour of the applicant, secondly, that his rank was so and so, and thirdly, that his years of service were so and so. In my opinion the function of the auditor would be to satisfy himself on these three points: (1) that the referee had decided that the man was entitled to a pension; (2) the rank of the applicant, and (3) what was his period of service. With the information under these three heads before him the Comptroller and Auditor-General will be able to calculate the amount of pension that the man is entitled to. He can see that he was paid that sum and no more. If we were to put on the Comptroller and Auditor-General the function of retrying a case that had already been tried by the referee and the Board of Assessors, then I am afraid he will want a very much increased staff. It would mean that he would have to sit in court, as it were, and re-try every case.
As Senator Dowdall has very properly pointed out, Senator Johnson would not dream of conferring on the Comptroller and Auditor-General the power to rehear a case that had been tried by the High Court. I am afraid that, taking into account the nature of the circumstances, we will have to trust to the discretion of the referee; we will have to trust him to see that he will give a favourable award in a good case and turn down a bad one. Certain powers are being conferred on the referee to enable him to do that. He is not an absolute dictator. He is appointed by the Executive Council, and in order to see that everything goes well certain other men will be appointed. A board of assessors will be appointed with him and you will have a representative of the Department of Defence there. You will have two members appointed by the Government who will be supposed to see that every applicant gets a fair crack of the whip. The representative of the Department of Defence will be supposed to see that the Act is carried out fairly all round and you will have a representative of the Department of Finance.
All persons whose accounts are being audited.
The Department of Finance accounts are not being audited, neither are the two members appointed by the Government or the referee himself. They have nothing to do with the money. They have to do with the granting or refusing of a certificate. That is not altogether correct either, because they have to do with the making of the report and it is the Minister who grants the certificate. If it appears to the Minister, under Section 10, that the person to whom such report relates is a person to whom the Act applies, the Minister shall grant him a certificate; and if it appears that he is not such a person, the Minister shall refuse to grant such person a certificate. The Minister will have plenty of information as to whether the referee is acting fairly or unfairly, and once the referee makes a favourable report and that report is sanctioned by the Minister, if it is unfavourably reported on by any of the representatives of the Government, the Minister will have to go into the matter and satisfy himself that the report is carrying out the Act. If all that is done, I think it would be imposing on the Comptroller and Auditor-General to put on him the function of retrying that whole case, and I do not think it is taking in the slightest way from his constitutional powers to prevent him even, if he so desired, from retrying the whole case. He will have everything presented to him that will enable him to carry out his functions as auditor, but I think it would be unwise to put him in the position of an appeal judge.
If the Minister will look up the debates in 1930 and the speeches of his predecessor he will see how closely they are in harmony with the speeches he has made to-night. If he will read further in those debates and refer to the reports of the proceedings of the Committee of Public Accounts, he will see that the case I am making here to-night is the case I have made since 1926 and in making that case I was backed up by the Minister and several of his colleagues. I think there is a complete misconception in the Minister's statement as there was in his predecessor's statement. The function of the Auditor-General is to audit the accounts on behalf of the Dáil, that is to say, the accounts of the administration, and to find out whether the administration, which means the Minister and his colleagues, through their staffs, have been carrying out the law and the requirements of the taxpayers' representatives. It is the Auditor-General, acting on behalf of the taxpayer and auditing the accounts of those people, whom the taxpayers appointed to administer their financial affairs.
Senator Dowdall referred to the High Court case, and there again there was a departure from the principle which I am trying to advocate. It was done as a result of an international agreement and there was a provision made that the decision of the High Court shall not be reviewable. It was stated during the debates on that occasion, I believe, that the provision in that particular Act was intended to debar the Comptroller and Auditor-General from examining into the basis of the awards, but faulty as that decision was, there is this difference, that the High Court proceedings in these matters are public. In this case the referee's proceedings will not be public.
That is not so stated in the Bill.
It is not so stated in the Bill, but it will be the fact as it was under the previous Act, but public or not, the only point there is that there is a certain possibility of publicity and a slight bar against possible faulty decisions. The Minister's only defence in this matter is that he has an official of his Department or other Departments who could report to him that the referee was acting unjustifiably and he could recall the referee or dismiss him at a particular point, but in so far as the referee has acted up to a certain date, once he has reported in favour of an applicant, everything else follows and the tax-payers, unless they refuse to vote the sums in the following session of Parliament, have no redress whatever. I think the Minister is ill-advised, and I think he should accept this as a matter of general public policy, as a matter of precedent, because this kind of thing is gradually being introduced into one Bill after another—limiting the powers of the Comptroller and Auditor-General, which are very important powers indeed in regard to financial administration, and should not be lessened at all. I am only asking that that should be understood. These powers are not lessened by the adoption of this section.
I agree altogether with Senator Johnson that the Comptroller and Auditor-General, in carrying out his duties, fulfils a very important function. In ordinary democratic Government, he is an absolute essential if the people want to have an independent check on the Administration, but we do not call it limiting the powers of the Comptroller and Auditor-General when we take from him the right to retry any case upon which the court has given a decision and ordered the Minister or the Government to pay certain sums, whether by way of pension or otherwise. If the court gives a decision, the Minister has to carry it out. In this Bill, we are setting up, owing to the difficulty or assessing rank and years of service, a referee, assisted by a board of assessors, to find on those two points. In the ordinary way, when a Bill has passed through the Oireachtas, if there are certain sums to be issued, they are issued by ordinary civil servants and the Comptroller and Auditor-General checks up on them, but we are not doing that in this Bill. Instead of giving the complete administration of this Bill to the Minister for Defence, who will assign certain officials to look after all applications and to say: "This man was a captain and this man a commandant, and they had five years and ten years' service, and we can grant them a pension on that," we are setting up a tribunal. The principal man in that tribunal is a person with the status of a judge. I think most people will agree that that makes it a very different case from an Act that is administered by the Department. We are not preventing the Comptroller and Auditor-General from satisfying himself that an award has been made by this tribunal or satisfying himself of the exact terms of the award. We are putting him in a position to see that that award and no other is carried out by the Department of Defence, or by the other Department concerned.
It would illustrate my point if I took a suppositious case. I will not say more than that. A person applies for a pension and he states that the rank he held was (c). The referee reports that the rank of the applicant was rank (a). The difference between the pension payable to (c) and that payable to (a) rank is paid, say, for a period of 40 years. As things stand, and as the practice of the Ministry has been, there is no power even to examine the claim made by the applicant as to whether the referee has gone far beyond what the applicant himself stated was his rank. The position in the case of old-age pensioners is examined by the Comptroller and Auditor-General when he wishes. The position of a superannuated policeman——
Is that so with regard to the old-age pensioners?
Yes. From the very beginning. He can examine the records if he wishes. The position of the superannuated policeman is just the same and so is the position with regard to any other pensioner. But we are now doing away with all that. We are putting into the hands of an independent person, a judge, if you like, a barrister if you like, powers which are almost absolute up to the point where the Minister is prepared to withdraw him from his appointment. I say if we are doing that without any safeguard raised against the possibility of defection, we are committing a mistake and one that may fall very grievously upon the State in the future.
I want to make one point in connection with that. In the case of the old-age pensioner the pensions officer can go down and see in five minutes the exact circumstances of the applicant. In the case of an application under this Bill, if the applicant claims, first of all, to have been, say, a battalion commandant with 300 men and more, he has to prove that he had these 300 men under his command. Can the Comptroller and Auditor-General go down through the country, examine those 300 men, and say whether they were or were not under the command of the applicant?
He would not try; but you must not deprive him of the power to do so if he wishes.
Amendment put and negatived.
Section 9 put and agreed to.
Sections 10 to 22, inclusive, put and agreed to.
FIRST SCHEDULE.
1.—(1) Any person who at any date was either Chief of Staff, Deputy Chief of Staff, Adjutant-General, or Quartermaster-General shall be deemed to have held at that date Rank A.
(2) Any person who at any date was either—
(a) a Divisional Officer Commanding, or
I move amendments 11 and 12:—
11. First Schedule. After the words "Adjutant-General" in line 48, page 9, to insert the words "a Divisional Officer Commanding."
12. First Schedule. To delete line 51, page 9.
I am accepting both amendments.
Cathaoirleach
Amendment 12 is consequential.
Amendments 11 and 12 agreed to.
First Schedule as amended agreed to.
Second Schedule, Third Schedule and the Title agreed to.
Bill ordered to be reported.
There is one other point. There is an amendment to Section 3 which I have drafted and it will be circulated for the Report Stage. I will not delay the House by reading it now. It will be moved on Report Stage.
Report Stage fixed for Wednesday, the 5th September, 1934.
