Skip to main content
Normal View

Seanad Éireann debate -
Tuesday, 13 Mar 1945

Vol. 29 No. 19

Military Service Pensions (Amendment) Bill, 1945—Second Stage.

Question proposed: "That the Bill be now read a Second Time."

This Military Service Pensions (Amendment) Bill, 1945, has received so much publicity and has been the subject of so much misinformed criticism that it may not be out of place to summarise briefly its main purpose and content. During the past 10 years, as Senators are aware, a Circuit Court judge has been employed as Referee in determining applications for service certificates under the Military Service Pensions Act, 1934. In order to expedite the determination of claims, the Referee delegated, as he considered he had the power to do, certain subordinate and auxiliary functions to the members of the Advisory Committee and to interviewing officers. It was recently decided by the courts that this delegation was not strictly in accordance with the Act. It becomes necessary, therefore, to validate certain acts performed by those members and officers. The Government considers that it is in the public interest that this should be done and, accordingly, this Bill is brought forward to this end. That, briefly, is the subject and object of the Bill—to regularise in the public interest the past procedure of the Referee in dealing with claims for service certificates.

What then is the procedure which the Bill seeks to validate? Under the 1934 Act, the Referee had to be a judge, a justice, or a practising barrister of ten years' standing. Actually, a court judge was asked to leave his circuit to act as Referee, and that was done to ensure that every application was examined and justly determined.

Again, the Act prescribed what it called an Advisory Committee to sit with the Referee and to assist him in the exercise of his functions. That committee was to consist of two officers of high rank in the Forces together with two other persons, one nominated by the Minister for Finance and the other by the Minister for Defence. Actually, there were appointed two officers of conspicuous merit in the I.R.A. with two officials of senior rank in the Civil Service. For administrative work there was also appointed a secretary with a staff of civil servants.

Such was the statutory machinery prescribed by the Act for dealing with claims. As regards the claimants themselves, the Act prescribed that every application should be made within the prescribed time and should be in the prescribed form and contain the prescribed particulars. The Act was passed on 13th September, 1934, and the regulations prescribing the form on 18th October, 1934.

When the Referee and the Advisory Committee began to function on 17th December, 1934, they were faced with three problems: (1) how were claims to be verified? (2) how were claims, even so verified, to be determined internally by the Referee? and (3) how were claimants to be informed of the Referee's decision on their claims?

The first problem in order of time to be tackled was the third, relating to how claimants were to be informed of the Referee's decisions. It was actually dealt with by the Department before the Referee began to operate. On the 18th October, 1934, a regulation prescribed that each claimant would be notified in writing of the grounds of the Referee's decision, but the Referee was only a month in office when he decided that this could not be done in every case, and asked for the Order to be amended so as to make even a verbal notification sufficient. Even that did not work, for at the beginning of February, 1935, another Order was promulgated cancelling both the written and verbal notification. In point of fact from 1st February, 1934, until 21st February, 1936, no procedure was prescribed as to how applicants were to be informed as to the claims, but, on the latter date, an Order prescribed that the Referee should simply inform them whether the Act applied to them or not, and should allow them 21 days in which to appeal. These published statutory documents, therefore, show that even on the relatively simple question of the notification to applicants, the Referee was grappling with a problem of procedure from the very outset.

As regards the second problem of verification, the position under the 1934 Act was far different from that which obtained under the Act of 1924. Under the latter Act, verification of post-Truce service was available from documents existing in the Army, and it was not difficult to verify pre-Truce service, first because most of the witnesses were Army officers, and, secondly, because only three or four years had elapsed between the period and the date of examining the pension, so that memories were fresh on the subject.

Under the 1934 Act, however, an entirely different set of circumstances operated, because for one thing there was no documentary evidence on which the Referee could rely, and, for another, the memories of essential witnesses had not improved with the lapse of time between the passing of the two Acts. The difficulty was, however, solved by asking the various brigades throughout the country to set up committees, to compile brigade records and to choose members who would act as verifying or certifying officers before the Referee when the applications from their particular areas were being dealt with. The verifying officers were members of the Old I.R.A. who had taken a prominent part in the fight in their respective areas. They were drawn from both parties who had opposed each other in the post-Truce period, and they co-operated irrespective of the political and other differences which divided them. Their work was voluntary, and they sacrificed their time, leisure and business in order to do their best for their comrades and to see that the claims of any genuine applicants were not overlooked.

The Referee's third problem was what procedure was he to follow in determining the applications for service certificates. That obviously depended, within the frame-work of the Act, on the number of applications to be dealt with. Now, at the end of December, 1934, only 204 claims had been referred to the Referee, and I have no doubt that for a period the Referee followed the strict procedure laid down by the Act. But the year 1935 was not long in progress when the Department was inundated with applications. They were coming in at the rate of over 4,000 a month and by the final date, 31st December, 1935, the Referee was faced with the colossal task of dealing with 51,880 applications.

We know now that, in accordance with the Supreme Court's decision, the correct procedure was that the Referee should sit with the Advisory Committee to examine the information received before making his report to the Minister, and that he should be present when any person attended for examination as a witness. To deal with each case in that manner would have taken, it is estimated, about 75 years to complete the work, and that, of course, would be farcical as a practical proposition. The Referee could, of course, have come to the Minister at this stage and have pointed out that the strict procedure provided in the Act was impossible to operate, and in that case we would then have asked for the legislation we are asking for now, and I have not the slightest doubt that this House would have implemented our proposals. But the Referee did not do so. Under Rule 7 of the Order published in 1934, "the Referee subject to the provisions of the Act and these Rules, may regulate his own procedure." The Referee was a judge of the Circuit Court, and he considered that, within the provisions of the Act, he could allow the committee to take evidence either as a body or in pairs, and that he could then on the evidence received determine the claim of the applicant.

In the first months of the Act's operation, the Referee sat with the committee, but, at an early date, that procedure was abandoned and the committee alone heard the evidence, making recommendations in each case to the Referee. This procedure continued until 1940, when for about a year or so, the Referee again sat with the committee to hear the evidence. About the middle of 1941, this was again abandoned, and the evidence was taken by the members sitting in pairs, the Referee attending one or other of the sessions according as he deemed fit.

Whatever was the procedure adopted in particular cases, the fact remains that at the end of 1935, the Referee had reported on only 1,065 cases. The same rate of progress obtained during the first eight months of 1936, and in August of that year the Referee was asked if the work could be expedited by the appointment of four interviewing officers. The idea behind the proposal was that if the Advisory Committee, either as a body or as individuals, were relieved of or helped in the work of interviewing applicants, the output of reports could be increased enormously. The Referee saw no objection to the proposal and the officers were engaged in this aspect of the work from October, 1936, until April, 1942. Two of the officers chosen had been active members of the I.R.A., and the others were civil servants with long experience of administration. Where, therefore, the verifying officers were not actually biassed in favour of the applicants, they were men whose experience would enable them to bring out every favourable feature in the applicant's claim. Between the Referee himself, the Advisory Committee and the interviewing officers, no less than 30,245 persons were interviewed regarding their claims between 1934 and 1943.

Before April, 1939, only 64 rejection notices had been issued, but meanwhile the files had been scrutinised and any claim which did not seem on its face likely to succeed was put aside for rejection. Towards the end of 1938, an arrangement was made with the brigade committees whereby before the rejection notices were issued, the committees would be informed of the names of the persons concerned, so that if necessary the committees could make representations to the Referee about any person whose claim they considered to warrant further consideration.

I think this was a wise plan. On the one hand, there was no use putting applicants to the expense of coming to Dublin and encouraging false hopes and, on the other, it prevented the Referee from overlooking any point in the applicant's favour. Between 1939 and 1943 the brigades were notified of 45,416 rejections. This arrangement was, it will be noted, additional to the ordinary statutory notice of rejection in which the persons concerned had at least 20 days in which to appeal.

There were two kinds of appeal. The first was to the Referee after the issue of the 21 days' notice on the grounds of new or additional evidence or representations, and the second was to the Minister both before and after the Referee had reported on the grounds of evidence not available prior to the making of the report. These appeals were not mere meaningless formulae. Up to the end of January, 1943, the Referee had issued 11,329 qualifying and 48,538 non-qualifying reports giving all concerned 21 days in which to show cause why the report should not be made to the Minister. Against the qualifying notices there were 2,158 appeals and against the non-qualifying notices there were 23,238 appeals. In addition to these appeals, there were about another 12,000 appeals made to the Minister. Of that number, 922 were referred to the Referee for review and 508 of these were successful. The House can see for itself the amount of work involved in dealing with all this mass of material.

I have now described at some length the procedure adopted in determining claims for pensions under the 1934 Act, and I have outlined briefly the work of the Referee, the Advisory Committee, the interviewing officers, the verifying officers and the brigade committees. What I should like to stress at this point is that persons chosen to constitute the administrative machine prescribed by the Act were weighted in favour of the applicants. The Referee was a judicial personage whose only purpose was to administer the law irrespective of its consequence; the two civil servants on the Advisory Committee were appointed to strike a balance in carrying out an enabling Act; but the other members were I.R.A. officers, whose function it was to see that credit was given where credit was due. At least two of the four interviewing officers had active, indeed prominent, service with the I.R.A., and all the verifying officers from the 82 Brigade areas were bent on extracting the last ounce of credit for the applicants of their areas. Unless the procedure adopted was manifestly unjust —and there is not one tittle of evidence to that effect—indeed all the evidence points to the contrary—I cannot conceive any administrative machine so heavily weighted in favour of applicants as was that operated under the 1934 Act.

Is the present person a judicial person?

He is a lawyer of more than 10 years' standing, and was appointed by the Government in the same way as was the former person.

But he was not a judicial person himself. He is a barrister.

He is a barrister of not less than 10 years' standing.

The Minister said that he was a judicial person. I think that that is not so either in law or in practice.

May I mention that he acted in a judicial capacity down in Galway?

I am sure the Senator will admit that it is a small point.

I only referred to the fact that the Minister said that he was a judicial person and up to a point he was, but before that he was practically a political barrister.

But he was appointed on the specific grounds laid down in the Act.

I have no doubt he was appointed in accordance with the Act.

Now, let us see the machine just described in action. Its operations have been set out in detail in the White Paper which has already been circulated, and it only remains for me to summarise them. Briefly, it may be said that where the available evidence disclosed possibility of entitlement to a certificate there were five stages:—(1) A preliminary stage of examination; (2) a stage of interview; (3) a stage of verification; (4) a stage of report; (5) a stage of appeal.

The preliminary examination was carried out by individual members of the Advisory Committee and its object was to determine which applications on their face had a reasonable chance of success, and which had no such prospect. In this stage, every application with its relevant documents was carefully scrutinised. If it showed a prima facie case or if in the opinion of the committee it was even doubtful, it was put aside for the second stage of interview, but, if an application seemed to have no prospect of success, then it was put aside to be dealt with by what I shall call the rejection process, which I shall describe later. That every claim was given the benefit of any doubt is shown by the fact that 30,245 applicants were called for interview, and that 11,577 received service certificates.

In the second stage of interview, the applicants whose cases seemed good and those which even appeared doubtful were called for personal interviews. Each was examined by two of the interviewing officers on the basis of his form, the services claimed thereon and the references given therein. Each applicant's evidence was recorded either verbatim or summarily and the evidence as taken was read over to the applicant before he departed. The file with the evidence and supporting statements were then referred to the Advisory Committee. The committee now worked in pairs, one being an I.R.A. and the other a Civil Service member. The file was again carefully scrutinised, and if the sworn evidence came anywhere near the qualifying standard, it was marked "Call verifying officers". If it did not, it was marked "Act does not apply" and was put aside to be dealt with by the rejection process.

In the third stage of verification, the verifying officers from the brigades were called and examined, either before the Referee sitting with all or with two members of the committee. The general service of the applicant was not questioned and the officers were examined on the actual active service claimed—each member of the committee taking careful notes of the evidence tendered.

In the fourth stage of report, each applicant's file was examined in the light of the applicant's own sworn evidence and the testimony of the verifying officers either by the whole committee up to 1941, or by two members thereof after 1941. They made their recommendations and filled up the appropriate form which was sent with the file to the Referee for consideration. These recommendations were either favourable or unfavourable If unfavourable, they were reserved for the rejection process, but, if favourable, the statutory 21 days' notice issued.

In the final stage of appeal, if the applicant appealed against the report as being inadequate—and no less than 2,158 did so—the appeal was examined by two members of the committee. If there was new or additional evidence it was held for a fresh verification session; otherwise it was rejected and the Referee made his report to the Minister. Even then the process of appeal was not finished, because if the applicant appealed to the Minister on grounds of evidence not available prior to the making of the report and if the appeal was sound, it was again investigated by the Referee.

As regards the rejection process, we have seen that in the stage of preliminary examination some cases were rejected by two of the members of the committee: that in the third stage of verification, others were rejected by at least two members of the committee: and that in the fourth and fifth stages others were rejected by the Referee himself. Now, before the statutory 21 days' notice issued in these cases, the brigade committees were given 28 days' notice of the intention to reject. If the committees then made any representations about any particular case or cases, the reports were deferred and the cases were referred back for a verification session and, on the results of that session, depended whether the reports made were ultimately in the qualifying or non-qualifying category. If the brigade committee made no representations, or if their representations did not alter the Referee's decision, then the 21 days' notice issued. Even then, the claimant could appeal to the Referee, or if the latter continued to reject, an appeal still lay to the Minister. In point of fact, there were no less than 23,238 appeals on non-qualifying reports on the 21 days' statutory notice, and there were about 12,000 appeals to the Minister in regard to both qualifying and non-qualifying reports.

I have already made the point that the persons chosen to constitute the administrative machine prescribed by the Act were weighted in favour of the applicants, and I now suggest that its operations dealt carefully with every application, whatever its merits, and that substantial justice was meted out to every claimant. The net result of the processes thus outlined is that of 60,131 applications received before 16th July, 1943, the Referee issued 11,577 qualifying and 48,554 non-qualifying reports. The cost of the administrative machine was about £130,000, and up to 31st December, 1944, pensions on foot of awards made by the Referee totalled £2,561,071.

Now, for eight years after the Referee began to function the procedure he adopted was not challenged by anyone. But, towards the end of 1942, a person who had received a qualifying award, but who was not satisfied with the award, sought and obtained in the High Court a conditional order directing the Referee to bring is the report and to show cause why it should not be quashed. This particular case involved questions both of procedure and interpretation. In 1943, 62 other persons, and, in 1944, 11 other persons sought and obtained similar orders, but in these cases the question at issue was one of procedure. Eventually, two cases were tried, and the High Court refused to make the conditional order absolute. The court held that, although the procedure followed was not strictly in accordance with the provisions of the Act, no injustice had been done to the applicants. The prosecutors appealed to the Supreme Court, and that court decided that the reports should be quashed, mainly because the Referee did not sit with the Advisory Committee to examine the information received in respect of the two cases, and also because he was not present when the persons attended for examination. After this decision the High Court granted the orders sought in the remaining 72 cases.

Now, what is the effect of the court's decision? Here I want to emphasise one point. The courts expressed no opinion whatsoever on the merits of the applications. They simply said that in determining them the Referee had not followed the procedure laid down in the Act, but they did not say that, had the Referee followed the correct procedure, the applicants would have succeeded in obtaining certificates. They did not say that the procedure followed was unjust, or that it was less favourable to applicants, or that better results would have accrued to them had the prescribed procedure been followed. The court reached its decision on the purely legal question that the Referee's procedure was not that prescribed by the Act.

The immediate effect is that the 74 cases must be re-opened by the Referee, and heard anew. In so far as these 74 cases are concerned, we are honouring the decision of the courts, and there is no intention expressed or implied in this Bill of interfering with the judicial decision regarding these cases. What this Bill is concerned with is the implications of the court's decision, and this House must face up to these implications.

In the first place, we are concerned with the pensions already under payment. Of 11,577 favourable reports issued by the Referee, 10,757 pensions are under payment at present, and, as I have said, all awards have cost up to the end of December, 1944, the sum of £2,561,071. There is no doubt that the correct procedure was followed in some of these cases, but we do not know the exact cases in which it was followed, and there is practically no way of determining them with certainty. All such payments are, therefore, voidable. Hence, a serious doubt exists as to the legality of all pensions under payment, and, to remove that doubt, the only alternative to some such Bill as this is to suspend all payments of pensions, and to re-investigate all the cases. Then if we follow the strict procedure, these cases will, it is estimated, take about 16 years to complete. I doubt if any member of this House would choose such an alternative.

Let us now take the non-qualifying reports issued. These number 48,554. Here, the alternative to the Bill is to stand still and to allow the Referee to be inundated with conditional orders, and the State to stand the expense of those that would succeed. Any applicant who could show that he attended for examination, and was not heard by the Referee personally, could obtain an order at the State's expense, and his case would have to be heard anew. The claims of those who had received qualifying reports would naturally get priority, so that those who did not qualify would have to wait their turn. When, therefore, the Referee had spent some 16 years dealing with persons who had qualified, he would have to direct attention to those who had not qualified.

The time which the investigations would take would depend on the number of orders obtained, but if only 20 per cent. of the rejected cases were reopened it would take possibly another ten to 12 years to complete their investigation. Could any Government stand over a proposal to spend at least 26 years, and possibly longer, at an estimated administrative cost of not less than £340,000 in investigating claims which have already taken ten years to determine at a cost of £130,000?

Turning now to the specific provisions of the Bill, Section 2 deals with the problem arising out of the decision of the Supreme Court. On a first and casual reading of the section, its provisions would seem drastic, but that first impression is proved false if we read the Bill in its true context and recollect that all the points of procedure validated do not apply to every case, but that different points apply to variously differing types of cases. The Referee, as I have shown, had very many different types of cases to consider and he had to vary his procedure in dealing with them. Seven sub-sections of Section 2 deal with those different forms of procedure. They declare, in effect, that the Referee was right in varying the procedure adopted, and, as I have already said, he was right, in fact, if not in law, because there was no other practical way of dealing with the problem.

The Supreme Court decided that the procedure of the Referee in the two cases before them was not in accordance with the Act, principally because he did not sit with the Advisory Committee before making his report but, also, because he was not personally present when witnesses attended. Sub-section (1) of Section 2 provides that it was not necessary for the Referee to sit with the committee before making his report and the deletion of the words "before the Referee" by sub-section (2) provides that the applicant may make his case not necessarily before the Referee in person.

There were 60,131 applications under the Act and it is quite obvious that, if the work of dealing with them was to be accomplished within a reasonable period of time, the Referee and the committee could not sit together to consider each case. Only a small proportion of the cases were dealt with in this way. Again, no less than 30,245 applicants were granted interviews and it is equally clear, for the same reason, that no Referee could hear each applicant in person.

The provisions of sub-sections (3), (4), (5), (6), and (7) deal more directly, though not necessarily exclusively, with points made by counsel during the court proceedings. The object of the Bill here is not only to cover the points decided by the Supreme Court but also to cover other points made by the prosecutors in the course of court proceedings. It was pleaded, for instance, that, in dealing with applicants and their witnesses, the Referee did not summon them, or did not hear them, or was not present when they were being heard, or that he allowed either members of the committee or interviewing officers to hear them without being personally present himself. Sub-sections (3), (4), and (7) declare that it is not necessary to follow such a procedure and, in thus validating or removing all doubts about what the Referee actually did, these sub-sections really cover the vast majority of the applications. There were 29,886 rejections without the applicants being summoned or heard in any way, because their files showed that they had no case, and because, on being notified of rejection, they expressed no desire to attend. To hear or to summon such persons or their witnesses would have been a waste of public time and money and would have put the persons themselves to fruitless and unnecessary expense. In rejecting these cases outright, subject to a 21 days' notice for appeal, the Referee had a good precedent in the 1924 Act, where 7,854 applications were rejected departmentally without any reference to even the Board of Assessors, because they were clearly cases to which the Act did not apply. In fact, in this respect, the procedure under the 1934 Act was tighter than that under the 1924 Act, because no case was rejected without the previous knowledge of the verifying officers and the brigade committees.

But sub-sections (3), (4) and (7) cover not only the outright rejection cases but also a large proportion of those actually summoned or heard. These numbered 30,245. The Referee could not personally interview such a number and he delegated the task, as I have already said, to the members of the committee and to the interviewing officers. These officers carried out the vast majority of the interviews and the Bill provides that the Referee was correct in authorising or permitting them to do so. Here, as elsewhere, we must remember that the Referee had the help of the verifying officers in every case, and, obviously, if they were not prepared to verify a claim, then it would be waste of time to make such inquiries. Moreover, as regards witnesses and references generally, it must be noted that the Referee had, by force of circumstances, to rely on the testimony of the verifying officers and that, unless he did so, it would have been almost impossible to reach any finality in the work of investigation. That, however, did not, in cases of doubt or of conflict of evidence, preclude him from calling on other witnesses and references if he deemed it fit to do so.

The purpose of sub-section (5) is really to protect verifying officers. Their testimony was given on the strict understanding that their confidence would be respected by the Referee, and, if there were any breach of that confidence, it is clear that they would refuse to testify further. That confidence would have been destroyed if applicants were informed of the information they had given or if certain applicants were allowed to be present when the verifying officers were being examined, or if, knowing that their claims had not been supported by the verifying officers, they were allowed to tender rebutting evidence. This sub-section does not mean that the Referee never informed applicants of the information received or never allowed them to be present with verifying officers or never allowed them to tender rebutting evidence, but it does mean that, in particular cases, where he had good and sufficient reasons for doing so, it was not necessary for him to inform the applicant of the information obtained or to allow him to be present when the verifying officers were present or to allow him to tender rebutting evidence when he had already made up his mind on the merits of the claim.

Sub-section (6) means that the Referee in deciding a claim could take into account any evidence or information obtained from sources other than that from verifying officers, witnesses or references, provided that he deemed such information or evidence relevant to the particular claim. Sub-section (7) simply amplifies the meaning of sub-sections (3) and (4). Sub-section (8) makes the preceding sub-sections retrospective to the passing of the 1934 Act on 13th September, 1934. For the reasons already given, the necessity for this is obvious.

Sub-section (9) deals with the cases in which absolute orders have been made directing the Referee to bring the reports into court for the purpose of being quashed. Paragraph (a) of this sub-section provides that such cases must be investigated again and that, in doing so, the Referee must follow the strict, literal procedure set out in the 1934 Act. This shows that we are not setting aside the decisions either of the High Court or of the Supreme Court, but that we are respecting such decisions in the cases which have been decided.

Paragraph (b) provides that if a person were in receipt of a pension on foot of a favourable report and, if such report were quashed by an order of the court, then any payments of pension made in respect of the favourable report so quashed shall be treated as payments in respect of a second favourable report, if granted.

Section 3 did not form part of the original Bill, but it was introduced in the Committee Stage in the Dáil, and I should like, therefore, to explain the reasons why it was found necessary to incorporate it. The two cases recently decided in the Supreme Court cost the State in plaintiffs' costs alone, £1,060 11s. 5d., and two others in the High Court cost £240 4s. 3d.—that is a total of £1,300 15s. 8d. We have not yet been billed with the costs of the other 70 cases, but it is estimated that they will cost the taxpayer anything between £3,000 and £4,000. The Supreme Court's judgment was delivered on 19th December, 1944, and two days later, on December 21st, the Government announced that it would introduce legislation at the earliest possible date to legalise the procedure adopted by the Referee. Despite that warning, we have received demands for over 500 copies of reports for the purpose of getting court orders to quash them. This section, therefore, has been introduced in order to save the taxpayers further unwarranted expense.

Section 4 is a corollary to Section 2, and provides that in dealing with appeals the Referee could follow the same procedure as he did when dealing with applications for service certificates. There are two kinds of appeals, according as they are made, under Section 8 before the service certificate has issued, or under Section 13 of the Act after the certificate has issued, and this section merely prescribes that in both cases the Referee may follow the procedure he used in dealing with the original application.

Section 5 of the Bill deals with a subject which is allied to that dealt with in the preceding sections. It refers to the acceptance of appeals by the Minister on grounds of additional evidence. As the 1934 Act stands at present, such appeals could go on indefinitely, and the machinery for dealing with them should be kept in existence. That, obviously, is undesirable, for there should be some finality in the appeals as there is in original applications. I have already pointed out, that there have been about 12,000 such appeals, and that 922 have been referred to the Referee. By this section the Minister now will divest himself of the power to receive appeals after 1st January, 1946. Any appeals received before that date will be considered, but after that date no other appeals can be received. Taking the number of appeals already dealt with, and seeing that applications may be made up to 1st January, 1946, I suggest to the House that the amendment is reasonable and will not deprive any applicant of an opportunity of making good his case, if he has any.

I said at the outset that this Bill was introduced in the public interest. The Supreme Court has pronounced what was the correct procedure prescribed by the 1934 Act, as enacted by the Oireachtas. The Government has respected that decision and has honoured its results in the 74 cases pending at the time of the decision. But the Government also, as the guardian of the public interest, had to look to the wider reactions of that judgment, and, having done so, it has decided that in the common good it is essential that the procedure followed by the Referee should be validated.

It is in the public interest that the purely technical flaws in the Referee's procedure should be validated; it is in the interest of pensioned I.R.A. men that every doubt regarding the void-ability of their pensions should be resolved; it is in the interest of those whose claims, after careful examination, have been rejected, that they should not be subject to exploitation; and it is in the interest of the taxpayer that the money spent during the last ten years in administering the Act should not have been uselessly expended.

At the outset, I should like to say that I was very much amazed to hear the Minister, in the course of the statement he has just read, say that the Bill was introduced in the public interest. If he had said that the Bill was introduced in order to legalise and validate the activities of his Department which, for ten years, completely ignored the legislation of this country, I could understand it, and, particularly, I would have been impressed if he apologised and said that in future the Government would undertake that the legislation passed by the Oireachtas would be followed and that Acts passed here would not be treated as if they were the rules of a football club. That is what is being done. There is no use in saying that men will lose their pensions if this Bill is not passed. That is not the purpose of the Bill. The Bill is introduced as an act of indemnity to the Government and their officials who have ignored the laws and procedure, prescribed by the Oireachtas, in connection with these 60,000 applications.

There are two difficulties. In the first place most of the decisions centre around the expression "active service". The Minister who was in charge of the Bill in 1934 refused to define the term "active service", and it has never been defined so far as the public is concerned. It may have been defined—I do not know—by the Referee or by those who acted for the Referee in his absence. However, I shall come to that matter again. The thing that we have to bear in mind is that the pivot of this whole legislation was the Referee. It is true that little attention was given to that fact when the Bill was originally introduced in the Dáil in 1934. Happily, however, the matter was cleared up in this House, and was cleared up very largely because of the pertinacity with which Mr. Thomas Johnson, who was then a Senator, followed up the clauses of the 1934 Act, when its provisions were being discussed, on that Bill, in connection with the powers of the Referee.

Mr. Johnson, on one occasion, put the point to the Minister who was then in charge of the Bill—I am now quoting from Volume 19, column 571, of the official reports of this House— that every application would have to be referred to the Referee; and the Minister in his reply said: "The Referee frames his report after having heard the case of the applicant in the presence of the board of assessors." There can be no ambiguity about that. It was perfectly clear to the Minister who was introducing and sponsoring the Bill that the Referee would only frame his report after having heard the case of the applicant, and not merely as a result of having been told about it by a civil servant of the Department of Finance. It is prescribed in the Act that the Referee should be present and hear the applicant, and the Minister was under no illusion about that, as he gave a guarantee that the report on the case should only be given after the application had been heard in the presence of the Referee.

Clearly, then, the Government recognise it as their duty, and, equally clearly, the Referee recognised it as his duty that the applicants should appear before him in person, that he should hear their evidence, and that whatever evidence was to be collected would have to be submitted to the Referee, as judge, because there can be no doubt that the Referee acted in a judicial capacity. There can be no doubt that he acted as judge in framing his report to the Minister. In fact, he was borrowed from the bench of the Circuit Court to act as interpreter of the law under the 1931 Act.

That went on for a period but it became convenient later to change the practice. In other words, it became convenient to break the law because there is no shadow of doubt that the Minister, his Department and the people who advised the Government not only broke the law but they did the very opposite in regard to the hearing of these applications to what the Minister said in this House would be the practice. I am not concerned whether 20,000, 2,000 or 20 persons got pensions. I think the issue here is whether or not. when the Oireachtas enacts legislation, the Government are going to be bound by that legislation or whether they will make a scrap of paper of it. There is no other issue involved. This Bill is brought in to indemnify those who ignored the law, to make valid and legal the actions of those who acted in a most irresponsible manner for ten years until it was discovered by the Supreme Court.

The Minister complained that some lawyers discovered a flaw in the Act but the people who suspected the flaw were those who were looking for service certificates. They felt they were not being treated honestly and as the Oireachtas intended. I do not know whether they were right or wrong in that opinion but these people at any rate felt that they were getting a raw deal. They went to counsel, briefed him and took his opinion. The counsel who advised them happened to be right and the people who advised the Government happened to be wrong because the Supreme Court was unanimously of the opinion that the procedure adopted by the Referee was unlawful, and that his awards should be set aside.

In introducing this Bill, the Minister and his associates in the Government took a fair amount of time in order to discover what their critics had to say, but after all the thing is very simple. This Bill was not the only alternative. At least, it is not the only alternative to having all the cases reopened and reheard. There are many other alternatives. I shall suggest one. I suggest that it was open to the Minister to say to everybody who applied to the courts for an order: "Come on, we will hear your case and re-examine it according to law." It might mean, indeed, that he should have recourse to more than one referee. It might have meant coming to the Oireachtas for powers to appoint ten referees if the applications were to be disposed of expeditiously, but I do not accept his figure of 75 years, because I remember that in his statement to the Supreme Court, State counsel said it would take over 43 years. I do not know whether that was right or wrong, but apparently counsel was briefed to tell the Supreme Court that if the order were made absolute it would take 43 years to hear all the cases. That figure now becomes 75 and one figure is probably as correct as the other.

The Minister or his predecessor must have recognised in 1934 that this would be a slow process. I remember reading recently in the Debates of 1934 that the Minister estimated that the number of pensions payable under the 1934 Act would be roughly double the number being paid under the Act of 1924. That means to say, he visualised 7,500 successful applicants. If the number of successful applicants under the 1934 Act were to bear the same relationship to the total number of applicants as was the case under the Act of 1924, he must have visualised 60,000 applicants because in order to secure roughly 3,700 pensions under the 1924 Act there were about 22,000 or 23,000 applicants. The proportions would be roughly the same in each case. So the Minister, in piloting this Act through in 1934, must have expected 60,000 or 70,000 applications and, obviously, should have made arrangements to deal with these applications. That was not done.

Now, as I have said, a smokescreen has been raised around the whole situation with the introduction of this Bill. There was a delay of four or five weeks in its preparation in order that the public would be told that it was done for some high and noble purpose, not merely to validate illegalities and irregularities. We are told by the Minister and by a number of Deputies that it is being introduced in order to safeguard 11,500 pensions already granted. The public are misled by that of course. I think I can prove that by a quotation from a recent statement by a very brilliant and capable man which was published in the newspapers. According to the issue of the Connacht Tribune of March 10th, His Lordship the Bishop of Galway made this statement:—

"It is a strange irony that at the very moment Mr. Lemass was making his charges in the Seanad, the Dáil was engaged in debating the Military Service Pensions (Amendment) Bill, a measure necessitated by the fact that the courts found that even the Government and Parliament, with all their official draftsmen, could not say exactly what they meant in the original Act."

Now, I suggest that his Lordship was sadly misled by the manner in which this Bill was presented to the House and to the public. There was nothing whatever wrong in the draftsmanship or in the preparation of the Act of 1934. What was wrong was the fact that the Government and their officials simply scrapped the Act and did what they liked. Not alone did they set up members of the Advisory Committee as judges and umpires, but they brought in six civil servants whose presence was never contemplated, and made of them interviewing officers to decide whether a man was entitled to a certificate or not.

Let us bear this in mind. This application to the Referee is not an application for a pension. It is an application for a certificate that a man or a woman, as the case may be, had given service in the I.R.A., Cumann na mBan or one of the kindred organisations. That is the purpose of the claim and many hundreds of these people, at least those who have spoken to me in the matter, never mentioned the word pension at all. What they were concerned about was the fact that they wanted to get recognition of their service and to get it in such a way that it could be framed in the kitchen.

Now we are told that this Bill will not interfere with the decision of the Supreme Court. It is true that so far as the 70 to 74 persons are concerned, they will be entitled to a rehearing of their applications in the manner laid down by the Act, but these were test cases. They were brought by people in a particular category to establish for everybody in that category that the applications were not properly dealt with, and that they should be dealt with in accordance with the Act in the whole of the category. Outside those covered by the test cases, the decision of the Supreme Court is set aside.

Thousands of people are entitled to say that if A.B. succeeded before the Supreme Court in obtaining a re-hearing by the Referee, we are entitled to a re-hearing before the Referee. That is gone, except in the isolated cases before the court in which a decision was given. We come now to the point as to whether this Bill is introduced primarily to ensure that those who have got their pensions will not lose them. The Minister emphasised that here, but I notice that it has been running through a number of speeches, particularly the speeches of those in the Dáil who have got pensions themselves. Here is Deputy John S. O'Connor, a solicitor, with all the authority that that status gives him, telling Dáil Eireann—I am quoting from the Official Debates for February 14th, column 192:—

"I am satisfied——"

May I call the attention of the Senator to the rule that it is not in order to comment on speeches made in the other House of the Oireachtas?

I am not proposing to comment at all. I am merely trying to quote statements made by Deputies that the reason they voted for the Bill was that they believed it was introduced to safeguard the pensions of 11,500 people.

A quotation is in order, but there must not be comment.

I am quoting only, and confining myself to brief quotations. Deputy O'Connor said:

"I am satisfied that there is a grave doubt as to whether the Minister is entitled to continue paying these pensions or not."

I am giving these quotations because I am going to show there is no doubt. Deputy Mark Killilea, at columns 193-4, said:

"As a result of that court decision, we have to introduce legislation to do a number of things, legislation, for instance, for the purpose of making sure that 11,554 people who are in receipt of pensions are in receipt of them legally."

Deputy T. Brennan, at column 302, said:

"I rise to support the Bill. I do so in order to ensure in the first instance that the present position under which 11,500 men are receiving pensions will be regularised and continue."

And Deputy Martin Corry said:

"I am voting for this Bill because I am not prepared to throw 11,000 Old I.R.A. men who were getting pensions under the 1934 Act into the wilderness again."

I have a number of other quotations to the same effect, but I do not propose to worry you with them. I propose to answer them, not out of my own mouth, but through the opinion of two senior counsel whom I have consulted with regard to that aspect of the Bill. Those senior counsel have agreed to this statement:

"All the reports made by the Referee either qualifying or disqualifying applicants to a military service certificate, which in turn qualifies the applicant to a pension are valid unless and until they have been quashed by the High Court. Therefore, every report of the Referee with the exception of those which have so far been quashed by the courts, remains as fully valid as it was before the Supreme Court decision in the McCarthy and Cuthbert cases and the Government requires no legislative sanction to pay the pensions awarded on foot of these reports. Indeed, should the Government decline to pay the pensions awarded it could be immediately and peremptorily compelled by the courts to pay. On this there can be no doubt. The only way in which the Government could avoid paying the pensions already awarded would be if the Government itself applied in each case to the High Court for an order of certiorari to quash the Referee's reports in the cases where pensions have been granted.”

That is to say, counsel is of opinion that the only way in which the awards can be quashed is on the application of the Government, so that if there is any doubt in the matter, the doubt arises because of the fact that the Government cannot trust themselves to go on paying the pensions without being tempted to go into court to quash them. The opinion I have been quoting continues:—

"It is not likely the Government would adopt this course, but even if it did decide to adopt this course, it would certainly be defeated in the courts for two very simple reasons: (a) the rule of estoppel would preclude the Government from relying on its own administration of the 1934 Act, and its own failure to comply with the provisions of the Act to repudiate the liabilities it had been a party to incurring, and (b) every recipient of a pension under the 1934 Act was granted his pension by the Minister for Defence with the sanction of the Minister for Finance. The Minister for Defence, having granted the pension, the Minister for Finance having sanctioned the pension and the pensions, having been paid, the Government would be precluded from repudiating liability, just in the same way as an ordinary litigant who has signed an admission of liability is precluded from denying that liability unless it can be established either (a) that the person was not of sound mind, (b) acted under duress, or (c) that a genuine mistake of fact, not of law, took place. None of these three exceptions would be open to the Government.”

Is that all a quotation?

If Senator Hayes is not satisfied with it he can see it.

I only wanted to know if it is a quotation to the end?

Yes, from the time you indicated that you were going to quote.

Are the concluding remarks part of the quotation?

I do not know if the Senator wants any more help from me.

I do not want help at all.

I have come to the end of counsel's opinion. If the Cathaoirleach agrees, it can be set up on the board for everyone to read.

It is not the only counsel's opinion I saw in my time.

It is worth while quoting the opinions of counsel who go into court and turn out to be successful. I think I have shown that the first case made for the Bill, the case that it was introduced for the purpose of saving the pensions of 11,500 people, falls to the ground. The common sense of the thing shows that there is no basis whatever for that aspect of the argument. But it is a very plausible argument. It is an argument that will convince people who had their claims established, that they have no interest in protesting against the introduction of a Bill like this, which will adversely affect 48,000 people. I am not so foolish as to suggest that all these 48,000 people would have got either certificates or pensions if this Bill had not been introduced. I do not make any such case. It is quite possible that if all these 48,000 people had had their cases examined by the Referee, their fate would have been no different. I am not arguing that it would have been different. What I am concerned with is the fact that if Parliament makes laws, it is the function and the duty of Parliament to see that the laws are observed, and that they are not set aside by a Government Department, any more than they can be set aside by a motorist who has run at the rate of 60 miles an hour on the public road to the danger of the community.

When the Minister introduced the Bill in 1934 he calculated that the number of people concerned would be approximately double the number that received pensions under the previous Act. I am concerned with this fact, that under the two Acts 15,469 pensions are being paid already. Therefore I am not making the case that there are 48,000 additional valid applications. I want that to be clearly understood. I was impressed as a matter of fact by an article dealing with the numbers involved published last Sunday by Mr. P.S. O'Hegarty, who obviously should know what he is talking about. He does not always know what he is talking about. He says some things with which I would violently disagree, but he does make a calculation in relation to the possible number of pensions, which is very much less than the number of those to whom pensions have been payable already.

What I would like to consider in that regard is this: No. 1, whether the people who are entitled to get them have been refused pensions; No. 2, are there people who got pensions who should not have got them? When the Bill was in the Dáil, the Labour Party submitted an amendment on the Second Reading asking for a select committee to investigate the whole matter. On publication of that amendment, groups of representatives of the Old I.R.A. in the south and west of Ireland saw a number of people, including myself, and the case they made was this: if they could get an impartial investigation they were going to show there were at least 3,000 people in receipt of pensions who should not have got them; so that it is not a case of looking for more pensions. I want the Minister to understand that clearly. The case made by the representatives of the Old I.R.A. was this: that if they were entitled to come before the committee they could prove, in respect of counties which they named, that there were numbers of people in receipt of substantial pensions who were not entitled to anything. The number they fixed on was 3,000. I do not know how they arrived at these figures. The information was conveyed to me by people who said they were in a position to prove their statements, if given the opportunity to do so. Certain instances were quoted to me, however, as an indication of the manner in which the Pension Acts were administered. In one case in a certain part of Ireland a gentleman was taken to the police barracks in Easter Week, 1916, and kept there for safe custody. I think it is called "preventive arrest" or something like that. I do not know what the exact title is. He was taken to the barracks for fear he would be shot, because the Volunteers had gone out in that particular parish. I do not know whether there were grounds for shooting him. At any rate, he remained in the police barracks. Twelve Volunteers turned out, and not one of the 12 got a pension, but the gentleman who stayed in the police barracks got a pension. This statement was made as an instance of something to be investigated.

A further statement was made by a man who, I think, was a certifying officer. He told me that a certain well-known public man came to him and said: "We can settle these things. The Government are not going to give pensions to every Tom, Dick and Harry." This public man was a member of the Oireachtas, and he said: "You and I can settle this between ourselves, there will be 12 pensions in this area and we can settle it". The man to whom he spoke said he would have nothing to do with a transaction of that kind. The public representative left but, later on, it appeared, he got a form which he asked his friend to sign in verification of claims made by him. The friend refused to sign. He could not certify that the statements were correct; that the claims made in the form were correct, but he discovered later that this public representative had got a pension. He came to town and saw a Minister, and asked him how that person got a pension, the amount of which was stated in reply to a Parliamentary Question. The matter was investigated and, I think, the pension was reduced by half. Numbers of other cases have been mentioned. I do not want to recite them all. I am merely drawing attention to the fact that I am making a case for review, not for the purpose of putting 48,000 additional people on the public payroll, but for considering whether some of those rejected should not go on and some of those who have gone on should not come off. It will be noticed that in the Dáil some Deputies made their votes for the Bill conditional on the Minister reviewing a number of cases for pensions. The Minister, of course, will remember that. Deputy Corry said:

"No doubt there are cases of injustice, cases of wrong decisions by the board and by the Referee".

There is an admission by a member of the Minister's Party, who voted for the Bill.

I do not like to interrupt the Senator but I want to point out that earlier you, Sir, ruled that we should not comment on speeches made in the Dáil. The Senator is very obviously commenting now.

The Senator is quoting from the speech itself.

I submit he is actually doing more; he is commenting on the speech.

The Senator, it appears to me, is commenting not on a particular speech but using it as an illustration in the case he is making as a whole.

With all respect, I am not commenting. I know nothing whatever of the motives that inspired the Deputies concerned. I am merely making this case: first, that people seem to me to have got pensions who were not entitled to get them; and secondly, that people have been denied pensions who were entitled to them. I am drawing attention to the fact that a number of Deputies who voted for the Second Reading of this Bill which is now before us did so under certain conditions. I am endeavouring to prove, by quoting from what they said, what the conditions were, and in this particular instance the condition is that certain cases would be reexamined. One person, I think, put the number of cases as high as 5,000. If I may, I will quote this portion of Deputy Corry's speech, as reported at column 159 of the Official Reports.

I have already said that it is not advisable to comment on the speech of a Deputy who is referred to by name.

I do not propose to make any comment. I merely intend to quote one or two references to show the conditions under which the Bill got a Second Reading in the other House.

It is not advisable to select any particular Deputy and to comment on what he said.

I do not propose to comment.

A Deputy so named is not in a position to rebut any charge made, or to offer any reply here.

I do not propose to make any charge. I am quoting from the Official Records of the other House.

As long as the Senator confines himself to a quotation he is in order, but, unfortunately, there is always a temptation to add one's own interpretation of the Deputy's speech.

I promise that I will refrain entirely from making any observation regarding anything I quote.

I accept that, Senator.

I am quoting from Deputy Corry's speech, as reported at column 159:—

"I should say that there are outstanding roughly from 3,000 to 5,000 cases of men who are entitled to pensions, and it is our duty to see that they get them."

Deputy Allen said:—

"Many Deputies on all sides of the House have pointed out that even under the 1934 Act, there are many persons who have failed to get pensions and who, in the opinion of those competent to know, should have got pensions. I appeal to the Minister to take steps on the Committee Stage of this Bill to see that the 1934 Act is amended, so as to allow an easy re-opening of the 3,000 or 4,000 cases where a pension should have been given under the 1934 Act and where, for one reason or another, it was not given."

That is from column 221 of the Official Reports. Something to the same effect was said by Deputy O Cléirigh, as reported at column 126. I will not quote it. Deputy Furlong, as reported at column 216, said:—

"...but my officers who represent all my comrades have officially decided that they will have to come to a decision some time, and they have asked me formally to vote in favour of this amending Bill, with the proviso that the Minister should seek some way out."

That is the case which has been made by the Deputies who spoke in favour of the Bill. It will be observed that the case which was made was: first, that they were voting for the Bill in order to ensure that 11,500 people who had received pensions would not be deprived of them; and, secondly, that they were voting for the Bill so that the Minister, on the Committee Stage, would amend it in such a way as to ensure that from 3,000 to 5,000 people who are entitled to pensions, but who have been deprived of them, would get them. The Minister has not adverted to these facts at all. His speech here might have been made if there never had been a debate in the other House. He did not advert at all to the feeling of distrust which was expressed in the other House, in a debate which lasted for a very considerable time. We are in this difficulty, however, and we have got to face the fact that whether or not we vote for the Second Reading of this Bill does not matter very much. If we decide not to give a Second Reading to the Bill, we simply hold it up for a period, but we deprive ourselves of any opportunity of amending the Bill. If we vote for the Second Reading, we give ourselves an opportunity to introduce amendments—whether those amendments will be accepted or not is another matter. In the Second Stage debate in the Dáil, Deputies were in vited to make suggestions and to submit amendments. They did submit amendments and made suggestions, but so far as I am aware none of them was accepted.

Strangely enough, the Minister himself brought in an amendment, which now becomes Section 3 of the Bill, and it is a very extraordinary section indeed. The Minister referred to it in his speech. The shortest description of it is to say that it is a section to ensure that nobody will make an application to the courts because they will have to pay their own expenses whether they are successful or not. The defence of the section is that those appeals are putting money into the pockets of lawyers. The people who are making the applications do not make them for the purpose of enriching the legal profession. They make the applications in order to secure justice for themselves. In order that they may secure justice for themselves, they employ solicitors and brief counsel. I assume that we in this House will agree that a solicitor or counsel who does his best on behalf of his client is at least entitled to be paid for his work. I do not want to encourage the idea that everybody should be entitled to rush into court so as to mulct the State—and the taxpayer, of course, in the long run—in large sums of money for costs. Of course, there will be no need to do that unless the Minister foolishly resists applications which he knows are going to be successful. If the Minister is advised that a particular case will succeed in court, why go to all the trouble and expense of contesting it? Why not do what any ordinary citizen does in the conduct of his own business? Why not go to the other fellow and say: "What do you want? Can we not settle with you?" If all that is asked of him is to provide a rehearing before the Referee, then the Minister should agree to that, and if necessary come in here for authority to have two, three, five, or ten referees if necessary. We will be told, of course, that there would not be any uniformity in decisions if there were five or ten referees. But, judging by the complaints to which I have referred, there does not seem to be uniformity even with a single referee, and indeed it is very hard to speak of a single referee when we have had groups of people, who seem to me to have no status whatever under the Act, deciding those cases for themselves without the presence of the Referee at all.

As I have indicated, I do not see any point in voting against this Bill on the Second Reading, but I do feel that there is an obligation on this House to indicate that it resents the manner in which legislation is being thrown about and ignored by Government Departments. There is an obligation upon us to say to the Minister, and through him to the Government, that we expect the Government and all its Departments to carry out the laws enacted by the Legislature, and not to start making statutory rules of their own which will be substituted for law. That, I think, is one thing that we ought to insist on with regard to this Bill.

In the circumstance, I think that the Government have taken the wisest course in rectifying the position which unwittingly arose from the misconception by the Referee, for the time being, of his position under the Act. I do not think that it is fair to blame the Minister or his Department for the results of this misconception by the Referee in the discharge of his functions. The Referee is a person of judicial position or a barrister of more than ten years' standing at the Bar, and he is placed in that position because he is presumed to have a knowledge of law sufficient to enable him to interpret the Acts of the Oireachtas. While the Referee may have been well aware of the interpretation of the Act, a situation arose in this case which, I think, was unforeseen—namely, the enormous number of applications for pensions which reached the Referee and his Advisory Committee in the year 1935. The Referee was, no doubt, pressed by the applicants for hearings. Perhaps, he was pressed by questions in the Oireachtas as to the progress regarding the hearing of applications and, undoubtedly, he took what afterwards was shown by the courts to be a wrong course in law in allowing a number of those cases to be heard by persons other than himself.

Personally, I cannot become as enthusiastic against the Bill as Senator Duffy was. Anybody who knows the history of this country must be well aware that, but for the civil war, the question of pensions for those who fought from 1916 to 1921 would have been disposed of long ago. The 1924 Bill was introduced for the benefit of a limited number of men who took part in the fight from 1916 to 1921. It excluded a great number of others because they had not been members of the National Army after the Truce. When the present Government came into power in 1932, they were, no doubt, pressed by their followers, and they felt it to be their duty, to bring in another Pensions Bill to enable those who were not entitled to pensions under the 1924 Act to receive what they considered to be their due. Now, I do not know exactly what took place in the Dáil in 1934 when the Pensions Bill was introduced, but I assume that there was opposition to it.

So far as I am concerned—it is only a personal view—the 1934 Act was a pact between the present Government and its supporters, for whose benefit it was mainly introduced. I feel that this amending Bill is still a matter between the present Government and its supporters and that, while members of the Oireachtas other than those of the Government Party are entitled, as legislators, to discuss every Bill brought before the Legislature, they are without practical interest in the persons affected by this Bill. In other words, I think that if the members of the Government Party in the Dáil are satisfied to vote for this Bill, it is good enough for me.

Of course, members of the Government Party who supported the Bill may not put forward very sound reasons in law for doing so. We have heard that a number of Deputies supported the Bill on the ground that, if it were not passed into law, a number of men who have received pensions might lose them. This Bill is retrospective in its operation. It goes back to the 13th September, 1934, being the date on which the Military Service Act, 1934, was enacted. It validates the procedure adopted since that date. It validates not only the rejections which have taken place but the pensions that have been granted. It is not only a Bill to validate the pensions granted but it is a Bill to validate the rejection of applications for pensions. Therefore, it is not quite right to say that this Bill is merely a measure to validate existing pensions. I feel that there is no certainty that, if the matter were brought before the courts, the pensions already granted would be invalidated. The most that can be said at the present time is that there is a doubt as to their validity and that this Bill has the effect of removing that doubt.

I feel that if the procedure which has been validated by this Bill were set aside and a new investigation held into every case in which a pension has been refused, it might be necessary, in order to get information as to the applicants for pensions, to resort to hearsay evidence, because a number of the people who would be in a position to give direct evidence would be dead. Some people may say that pensions for fit and able men should not be granted in any State. Some have said that Easter Week, the War of Independence against the British, and the Civil War have long since been liquidated by pensions. Some people say that the system of granting pensions is all wrong.

That may be so but, at all events, let us get rid of this matter of the granting of pensions at as early a date as possible, and let us not be like the people in the United States of America, some of whom, up to a short time ago, were drawing pensions as a result of the Civil War of 1861 to 1865. I say that this question of pensions for military service, which terminated, at most, in 1923 or 1924—over 20 years ago—should be disposed of within the next two or three years. The question as to how the matter is to be disposed of may present certain difficulties, but the only way in which it could be disposed of within a reasonable time is by the doing of substantial justice.

Senator Duffy has stated that a number of people at the present time are anxious to have an investigation into at least 3,000 cases in which pensions have been granted. They are also anxious to have an investigation into a number of cases in which pensions have been refused. Well, if they are anxious to investigate 3,000 pensions, out of 11,000, it means that the entire 11,000 cases, in which pensions have been granted, must be reviewed de novo; and if they are anxious to investigate the number of cases in which pensions ought to have been granted but were refused, then it will be necessary to review the entire 48,000 cases in which certificates of service have been refused. I say that that position would be impossible. Now, while the strict procedure was not carried out by the Referee for the time being—the result of which has been the order made by the Supreme Court—still, I think that it cannot be disputed that substantial justice has been done. In my submission, it would be impossible to satisfy everybody, but I say that, once you admit the principle of granting pensions for services, which have not been adequately or definitely defined by law, there is bound to be a certain amount of elasticity of opinion as to the nature of those services and especially, there may be a certain amount of exaggeration as to the value or benefit of these services. On the whole, however, I think that the Pensions Board and its officers, from the Referee down, have endeavoured to do substantial justice to every applicant for a pension. I think that, as commonsense people who have lived in this country since 1914 up to the present time, it is rather amazing to us to find that something like 60,000 people claimed to have been on active service for the purposes of the 1934 Act and that—I am not quite sure as to the figure—some 20,000 to 30,000 people claimed active service under the 1924 Act.

I think it is quite clear that people who were not entitled to pensions at all took advantage of the legislation passed by the Oireachtas in regard to this matter of military service pensions, and that people who were not genuinely entitled to pensions took a chance on obtaining one by making an application under the Act. I think, therefore, that the sooner we get rid of pensions the better. By that I do not mean that we should get rid of the payment of pensions. What I mean is that the sooner we adjudicate upon the question of these pensions the better, and I think that everybody will feel better afterwards. I think the Minister stated that a sum of £2,500,000 was the amount payable in respect of pensions. I am not quite certain whether he stated that that was the sum payable per annum or that was the total sum.

It is the total sum, since 1934 up to to-day.

Very good; the total sum since 1934 up to to-day. In other words, £2,500,000 has been paid in respect of pensions since the 1934 Act was passed. We do not know how long that payment will continue. It will depend, of course, upon the length of life of each person who gets a pension, but I think that the sooner the country knows what is the amount of the burden it will have to bear in respect of pensions the better. For these reasons, I support this Bill. Like everybody else, I am anxious to clear up the liabilities in connection with 1916, the War of Independence, and the Civil War, and I think that this is the last and final liability which the nation must discharge to the men who fought for Ireland.

I have had considerable experience, since this 1934 Act came into operation, of the Advisory Board and the various referees who were appointed, and I must certainly say that, in my opinion, so far as they possibly could, they have tried to do justice. Before dealing actually with the Bill before us, I should like, as the Minister has given us an opening by mentioning the 1924 Act, to refer to that Act also. Speaking for the women of Ireland, I should like to clear the air of the impression that has been given for some years back, that everybody who gave voluntary service from 1916 to 1921, or afterwards, immediately clamoured for a pension, as soon as a national Government came into being.

We did not. We never thought of it; we never looked for it. Even in 1934, under the Fianna Fáil Government, as far as I am aware, the Cumann na mBan organisation never made any approach with regard to pensions. I am only sorry now, and have been sorry for a great many years back, that the Act of 1934 was ever brought in, because it has caused trouble, dissension, bad feeling, and many other things that we could very well have done without. Even after the latest discussions on this Bill prior to its coming before this House, my colleagues and I decided— that is, those of us who have been granted pensions —that we would prefer to do without them than see an injustice done to anyone who is genuinely entitled to a pension.

The unfortunate thing is that when the Act was first passed the majority of the people whom it affected never had any conception as to what it meant, or what they were entitled to under it. They might possibly have heard something about the 1924 Act, or of certain cases which came under it, in which men who had given the qualifying service, got 6, 7, or 8 years, as the case might be, from a certain date. They thought it was necessary only to prove service of some description, and to prove membership of an active service organisation. They had no idea of what was necessary in the filling in of forms, in making applications, or what was required generally. In a great many cases they were told not to put down too much detail in their applications, that it really did not matter, that it was only a form of application for a certificate, and that when the application came before the Referee or the Advisory Committee an applicant could then tell them all his or her history. When those applicants who did not supply all the details which they were in a position to supply got 21 days to appeal, they were still rather "foggy" as to their rights. Some of them, as a result of nerves, age, or forgetfulness, made a very bad case. I can certainly say that in the majority of cases with which I had any connection which came before the board, the members of the board tried their very best to help out those applicants who did not make a good claim for themselves.

According to the White Paper, from 1941 onwards the question arose of expediting the hearing of claims and perhaps the Minister or the board was justified in the action they took, but I personally thought it was not a very good procedure to have only two members of the board adjudicating upon claims. I felt that we got a great deal more satisfaction on any occasion on which I had given evidence before the whole board. I think that some people who were turned down subsequent to 1941 might have got a better chance had the whole board discussed the matter openly and fairly.

With regard to verifying officers, in the majority of cases the verifying officers are blamed if the applicant does not qualify although they never get any thanks if he does qualify: applicants always say then that it is due to their own merits. If an applicant is turned down he or she blames the verifying officer. Such applicants say that the verifying officer did not give the evidence that should have been given or that the verifying officer did not bother to find out anything about the applicant. They may also say that the verifying officer had some personal feelings against them and for that reason gave evidence which may have done them harm instead of helping them. That is why I would appeal to the Minister to reconsider the provision in sub-section (5) of Section 2 under which the Referee is not obliged to inform the applicant of any evidence or information obtained as a result of inquiry or to afford the applicant an opportunity of tendering rebutting evidence. I should like to have paragraph (c) of sub-section (5) deleted for that reason. I think if an applicant does get an opportunity of hearing all the evidence that has been given, the Referee need not necessarily give the names of the particular people from whom the information was obtained. If an applicant does appeal within the succeeding 12 months, or if he or she feels that somebody gave evidence which did them harm, and if the applicant has other evidence which would help a great deal, I think it would be only fair that the applicant should be allowed to give further evidence on appeal.

With regard to appeals in general which are due to be dealt with in the next two years, I think if a responsible committee composed of represent- atives of either Cumann na mBan, the Citizen Army, Fianna Eireann or the I.R.A., send appeals to the Minister that two members of the board should be asked to look into those appeals. I consider that in many cases the secretary to the Referee is not a person who would be in a very good position to judge as to whether cases should go before the Referee. I understand that is the procedure at the moment. We have had three secretaries in succession and four referees and the procedure has been somewhat different under each of them. In the event of an appeal being sent forward by responsible people, I would appeal to the Minister not to leave it to the secretary to decide whether these appeals should go to the Advisory Committee or not. I think that appeals which are supported by the evidence of responsible officers should be sent at least before two members of the board. That is all I have to say in the matter.

Tá meas mór againn go léir ar na daoine a bhí sna hOglaigh agus ba mhaith linn cothrom na féinne a thabhairt dóibh go léir. Tá fhios againn gur éirigh le daoine áirithe pinsin d'fháil nár thuill siad agus nach bhfuair cuid eile pinsin gidh gur thuilleadar iad. Is féidir, ámh, le héinne nó le haon Bhord dul amú anois is arís. Cuid dóibh san a chuidigh sa troid, táid anois thall in Ameriocá, agus go minic ní féidir faisnéis a fháil uathu ar an bpáirt a ghlacadar féin nó a gcomráidí fé fhuacht, fé ocras agus fé bháistigh sa gcogadh anso. Ní hiongnadh go bhfuil dearmad glan déanta ag cuid acu ar na rudaí a thuit amach sa chogadh anso agus ceapann siad uaireanta nach aon mhaitheas dul thar n-ais ar rudaí atá críochnaithe.

Like Senator Miss Kennedy, I take a great interest in the cause of the men who fought in the Irish Volunteers and the I.R.A. To my certain knowledge, some people slipped through in the 1924 Act, and also in the 1934 Act, who were not deserving of pensions. but those, I agree, were isolated cases and the members of any board, being human, are liable to make mistakes. It is my firm opinion also that a number of people who deserve pensions failed to secure them for one reason or another. In dealing with the 1934 Act, some people were asked to produce evidence after the lapse of a long period of time since the national service was rendered, and many of the officers under whom they served were, unfortunately, in their graves, while a number had emigrated to America or otherwise left the country.

We all know that people who go through a struggle like the Anglo-Irish war and the civil war often lack a very clear recollection when they are asked to give evidence. I know that in my own case I have not as good a memory as I had 20 or 30 years ago, and I made a personal appeal some time ago to the Minister to consider those border-line cases, cases that were turned down by the board owing to the failure of the applicants to do themselves justice, and also where they were knocked out on technicalities.

I think that every member of this House and of the Dáil would be in favour of having something done in those border-line cases, and I would again appeal to the Minister to consider the matter. There is no doubt that there is a good deal of discontent in the country. Some people feel, rightly or wrongly, that they are labouring under a grievance. It is a bad thing to have those festering sores in a country, and every one of us should try to take a broad view of these cases. The amount of money required to meet them would be very small and I believe it would be to the decided advantage of the country to do it.

As time is getting short, I merely wish to associate myself with the speakers who have already given us their views on this very important matter. In common with Senator Kennedy and other Senators, I would like to say something on the principle of this Pensions Bill. There may be other Senators in the House who will have no time to speak, but my regret is that any Pensions Bill is necessary at all, 1934, 1924 or at any other time. The bulk of those who went out in those times did so from idealistic motives. Idealism inspired the movement and not the hope of reward, but I suppose the latter is a facet of human nature we cannot help. I think the introduction of a Pensions Act in 1934 was a great mistake—a laudable mistake perhaps, but still a mistake.

It is very hard to plead in certain cases that people who should have got pensions failed to get them. It is much easier to sympathise than to help them, and it is very hard to formulate any directions for the Minister who has been inundated for the past ten years, as his predecessors have been inundated, with requests for the hearing and rehearing of pension claims. Unquestionably there have been cases where injustice has been done. If people have slipped through the mesh and have got pensions without deserving them, I do not think it is a great crime. It is inevitable in any movement that people can make a raid from behind a smokescreen and get away with certain things, but I do not think they should be deprived of pensions which they may or may not have earned justly. There were cases, I think, in every county, and in my own county,—perhaps half a hundred covered the number—where people came up to give evidence, incoherent, and frightened people, cradled in poverty and verging on decrepitude, some of them in Dublin perhaps only for the second or third time in their lives. If they were shaken in their testimony and their evidence did not conform with that on the paper, it can easily be understood. I know cases where people can claim pensions equally with those of their comrades who were more fortunate in proving their cases, and more serene in answering the questions put to them.

Senator Duffy gave instances of men protesting in another House against existing pensions being looked into and scrutinised with jealous care. He did one thing that I did not like. Without saying it broadly, he hinted that those who were protesting that this measure was necessary to validate pensions were the people who had got pensions themselves. That insinuation, I submit, was not in order and it was not very courteous or tactful in any case. As far as I know, members of this House are not supposed, and there has been such a rule for years, to comment on or to impugn the motives of persons who speak, as the jargon has it, "in another place". That is neither here nor there. I regret that insinuation of Senator Duffy's. Possibly the Senator did not mean it and he only wanted to point a moral, but I think it would have been better if he had left it unsaid.

Senator Ryan, I think, alluded to pensions that were given in the American Civil War. We have got nothing to do with that, of course, but some of these men lived until a couple of years ago. I knew an individual who fought in the American Civil War. The pensions given for the American Civil War seemed long drawn out as the pensioners were alive, hale and hearty up to a few years ago. I ask the Minister—although I know it is easy to make suggestions and very hard to formulate them in a practical way— to look kindly and sympathetically on at least, shall we say, 10 per cent. of the cases which will come before him. Everyone knows about the number of applicants for pensions, as has been evidenced by the Minister in his lucid speech, in which he said that 48,000 had been rejected and 11,000 granted, making about 60,000. Everyone knows that one-half, perhaps only a quarter, were eligible. We must make allowance for human frailty, and for the fact that when the storm is over many people try to cash in on what they think they did, but which nobody else knows anything about. I ask the Minister, if at all possible, to be lenient.

Undoubtedly there are borderline cases. Everybody is conscious of that. I know cases of men who deserve pensions or some small recognition for their services. To arrive at a solution of the problem should not be an insuperable difficulty; it should not be beyond the wit of men or of Ministers to devise a method which would in some way meet it. That this Bill was necessary is apparent to everybody. The efforts to discredit the Bill, and those who framed it, are merely so much kite-flying. We have people advocating the cause of the Old I.R.A., Fianna Eireann and Cumann na mBan for the last two years who ignored them completely ten years ago. Their advocacy of these movements now is so much mere kite flying or, to put it mildly, so much hypocrisy. I wish the Bill every success.

I have always tried to associate Labour with realism, but after the speech I listened to from Senator Duffy I am afraid I can no longer hold to that belief. First of all, the Senator had no regard whatever for the fact that the examination of applications or applicants for pension certificates has ended for some time and, in fact, the only cases which the board is dealing with at present are those referred to them by the Supreme Court, plus whatever appeals are on hand, not a very large number. The Senator did not advert to that fact at all. He appeared to discuss the subject as if we were depriving a large number of applicants of a hearing. I want to impress upon the Seanad that of the 60,000 odd applicants over 30,000 were personally interviewed. They may not have been interviewed by the Referee as that would have been impossible, but they were interviewed by the representatives of the Referee in the persons of one of the Old I.R.A., plus one of the senior civil servants who were appointed to the Advisory Board. These people did not, as someone here seemed to suggest, come to a decision. They merely interviewed the applicants, got from them all the necessary details and, having secured that information reported to the Referee. In due course the Referee sat down with these men or with another group and arrived at his decision.

Senator Duffy was far less a realist than the original Referee who, when he was faced with the colossal task of seeing 60,000 odd cases, asked himself: "In what manner and by what method am I to deal with this mass of applicants in my lifetime?" He must have asked himself if there was the slightest possibility of ever being able to do it. In fact, if he did ask himself that question, which I am sure he did, he must have very quickly realised the impossibility of being able to complete such a colossal task. The Minister for Defence was entitled to, and did make regulations to govern the actions of the Referee and the Advisory Board. One of the regulations that he made, I presume at the request of the Referee, was that the Referee would be entitled to make his own procedure, and, I presume arising out of the Statutory Rules and Regulations Order, the procedure adopted by the Referee was that which he continued to carry out until it was challenged by the legal people and brought to the High Court and to the Supreme Court. There again I want to point out to Senator Duffy that the High Court when dealing with the question whether the law was, in fact, properly administered or not, took the practical view, the realistic man-in-the-street point of view, that the law was not strictly adhered to inasmuch as cases were not heard before the Referee, but they did say that no injustice was committed in respect of any applicant, and because of that belief they refused to grant the conditional order. That decision was appealed against, and we know what the Supreme Court did. The Supreme Court, apparently, took the more rigid legal view. They asked: "What are we asked to interpret?" They said the question is whether these applicants are entitled to be heard before the Referee, or could they have been heard in the manner in which they have been heard? Their decision, of course, was based on the strictly literal interpretation of the words "before the Referee". They must have said: "The cases were not heard before the Referee. Therefore, in our opinion, they are not in accordance with the Act." They gave the decision on what I regard as a purely technical point, without any regard to the practical effect of it whatever. That is another of the points which Senator Duffy apparently failed to realise.

He talked about people being in receipt of pensions who were not entitled to them. He talked as if he has some special knowledge in that respect. Other Senators have made similar references, and all I can say in respect of that is that there is machinery to deal with any such cases which are brought to my attention. In fact, some cases have already been dealt with on that basis. If it can be proved before the Referee that a person is in receipt of a pension as a result of false information, or as a result of evidence which was not true evidence, the pension will be taken from that individual, just as pensions will be awarded to such people as we have been told about here to-day—people who are entitled to pensions but who did not secure them. I say here and now that any person who can prove that he is entitled to a pension will receive it. There is no way by which he can be prevented from receiving a pension if he is entitled to it and if he can prove that he comes within the standards required by the Referee. That is the simple question with which the Referee is confronted when he is examining an applicant. He must ask himself: "Is the evidence submitted in respect of this individual the type of evidence which I require? Does it come within the standards which I have set?" It is not a very rigid standard.

Reference has been made here to the fact that no interpretation has been given to "active service". That is quite true. No interpretation was over given by anyone. The Referee, as a judicial personage, was left free to put his own interpretation on those words. It was deliberately, I understand, left in that vague form so that there would be no question of having rigidly to deal with some strictly specified form of words.

Senator Duffy also talked about the Minister and the Department and the Department's officials ignoring the laws. The Referee and his board is a statutory body set up with all the powers of a statutory body, entitled to carry out their own procedure without any interference from me or from anybody else, just as any judge of the High Court or of any other court is entitled to carry out his own procedure. What Senator Duffy has suggested is that I or someone else should go in and tell him what he should do —tell him to whom he should give pensions or from whom he should withhold them.

On a point of correction, I did not make any such suggestion. What I did suggest was that the Minister's Department made regulations which were contrary to law.

He also suggested—I do not know why he brought in such a trivial thing—that people were looking not for pensions, but for certificates, the suggestion being that the question of pensions did not arise in fact. Of course, that can be proved very easily by seeing the number of persons who applied for certificates, and the number of persons who received pensions. The Senator could very easily find that out. He could find it out just as easily as I could, instead of making that vague statement, for what particular purpose, I am not quite sure.

I do not see how the procedure which has been carried out for the last ten years in respect to pensions could possibly have been fairer. Every individual, whether he had a good case, or whether he had a bad case, whether he was the poor, frightened, nervous individual that Senator Kehoe mentioned, or whether he was some person well versed in the law, was called before the court of the Referee, and the I.R.A. men who were put on there were put there deliberately for the purpose of looking after the interests of that poor, nervous, illiterate individual, whoever he may have been. They were put on there deliberately for the purpose of seeing that that type of individual would have his case dealt with as fairly and as justly as the person who was well versed in the law.

What happened? The applicant went before an interviewing officer. We had four interviewing officers, in addition to the four persons on the Advisory Board. Of the four interviewing officers, again two were prominent old I.R.A. men. Their purpose was to examine the forms of the individuals who did not appear to have proved a prima facie case. It can hardly be suggested that those men did not take a sympathetic view of the forms which came before them. They had a specific type of job to do, and they did it, and did it fairly. If the form contained nothing in the nature of prima facie evidence, they simply referred it to the board. They did not turn it down. They referred it to the board, and the board—the I.R.A. men and civil servants—examined it from the same point of view. If they decided that the form did not contain the necessary evidence, it was sent to the Referee, who, after examining it, endorsed their viewpoint, and the case was turned down. But it was only rejected in this respect, that the individual was given 21 days in which to make a further case, if he had a further case to make.

If, for instance, as Senator Kehoe suggested, the form was not properly filled in, then within 21 days the applicant could consult his old colleagues or anyone else he wished to consult, and produce the necessary additional evidence. There was another form of appeal in respect to cases which in fact qualified or did not qualify, and in which the various brigade units were interested. In those cases, after a decision was taken by the Advisory Board, if it was a rejection or a qualification of the application, then the brigade was given 28 days to state whether or not they were satisfied in respect to the decision. If it was a non-qualifying case, they, no doubt, would express their views. They might say that they did not approve of the turning down of the application, and if that happened the case was held for further hearing. In other words, it was held until the verifying officers appeared again before the Referee. It was then permissible to give additional evidence if additional evidence could be provided. If, having heard the additional evidence, the Referee was still satisfied that a man had not a case, then the applicant got 21 days' notice. If he could procure additional evidence during these 21 days, his case was re-examined. When all that procedure had been gone through, there was still an appeal to the Minister if the application had been turned down. It might happen that the evidence of some individual who had left the country and had not been previously available would now be available because of his return to this country. If that additional evidence was procurable, then, on appeal to the Minister, that evidence could be heard and, if it was satisfactory, the application would be successful. More than 500 such cases are on record. In other words, more than 500 persons whose applications were originally turned down because they were not persons to whom the Act applied qualified later as a result, of being able to produce necessary additional evidence which had not been previously available. I do not think that, within the wit of man, any fairer procedure could be conceived.

As some Senators mentioned, applicants who had themselves buoyed up with the hope of receiving pensions must have been grievously disappointed when they failed to establish their claims. That does not necessarily mean that the law was wrong. It merely means that their hopes were blasted and that they felt aggrieved because of that. We all know that, when two litigants go to court, only one of them can succeed. One of them will go away happy and will be prepared to throw bouquets at the judge. But what will the other party say? I do not think that it would have been possible to frame a fairer method of examination, with a view to granting or withholding certificates, than the method incorporated in the 1934 Act. For the information of Senator Duffy, I may say that the Board of Assessors under the 1924 Act acted similarly. They, too, had to be realists and they broke up into three groups and heard cases as the Advisory Committee heard them under the 1934 Act. The Advisory Committee so acted with a view to bringing the matter to a conclusion in ten years. Had not the Referee adopted that procedure, the hearing of claims would have gone on for 60 or 70 years. That cannot be disputed. We have examined the matter meticulously and we are satisfied that, if the Referee had adhered to the strict letter of the law, those entitled to pensions would never have received them. That is the fact of the matter.

Question put and agreed to.

An Leas-Chathaoirleach

When is it proposed to take the Committee Stage?

Would the House be kind enough to take the other stages now?

We ought to get an opportunity to amend the Bill.

Committee Stage fixed for first sitting day of next week.

An Leas-Chathaoirleach

Owing to the holiday on Saturday, St. Patrick's Day, the printers will not be at work on that day, and amendments should reach the Clerk on Friday, at latest.

Business suspended at 5.45 p.m. and resumed at 7 p.m.

Top
Share