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Seanad Éireann debate -
Wednesday, 21 Mar 1945

Vol. 29 No. 22

Public Business. - Military Service Pensions (Amendment) Bill, 1945—Committee.

Section 1 agreed to.
SECTION 2.

I move:—

In sub-section (3), paragraph (b), line 33, page 2, after the word "person" to insert the words "being a member of the committee".

This amendment is related to sub-section (3) of Section 2. I would like to draw attention to what is provided in the sub-section which reads:—

"Nothing in the Act of 1934 or in any regulations or rules made thereunder shall be construed as...

(b) prohibiting the Referee, in investigating an application for a service certificate, from authorising or permitting a person to hear the applicant".

That section is retrospective and its purpose is to validate investigations carried out by members of the committee and persons appointed by members of the committee, in other words, civil servants appointed to carry out these investigations. The Minister complained, when we were discussing this Bill on Second Reading, that I was not a realist. He deeply regretted that I should have fallen from grace in respect of this matter. I suggest that he entirely missed the case I endeavoured to make. I did not make a case, in the circumstances in which we are now situate, against accepting the broad principles of the Bill. The main case I made was that the Bill was brought in to validate irregularities which had been going on, with the connivance of the Minister, for a period of ten years. The only question at issue now is as to how far we are to go in validating those irregularities.

I am willing to go this distance— that wherever an investigation was conducted by members of the committee set up in pursuance of the Act of 1924, that investigation should be accepted as if it were an investigation by the Referee. I want to stop short at the point at which interviewing officers, who were not members of the committee, were authorised or permitted, under rules or regulations, or without rules or regulations, to conduct these investigations. In other words, if there were some thousands of cases in which applicants for certificates were interviewed solely by those interviewing officers, who had no status whatever under the Act of 1924, I am endeavouring to ensure that, if the persons concerned are dissatisfied with the result of the investigation, they should have the right to a new hearing by members of the committee or the Referee, or by members of the committee and the Referee acting jointly. That is what I am endeavouring to meet by this amendment.

It is going very far, indeed, to ask the House to say that people who have no status whatever under the law can be appointed by the Department of Finance or the Department of Defence and told to go in and usurp the functions of the Referee and the Advisory Committee. I want to lock the door against that and to secure that, if people desire a rehearing in cases in which the original investigation was conducted by interviewing officers, they shall be entitled to that rehearing. It is quite possible that many of the applicants whose cases were investigated by interviewing officers are satisfied, as a result of their discussions with these officers, that there would be no use in proceeding further. I am not making the case that they should automatically get a rehearing. All I am doing is asking the House to alter the sub-section in such a fashion as to enable applicants, if they so desire, to get a rehearing in cases in which the investigation was solely and entirely conducted by interviewing officers. The Minister should have serious regard to that position. If what is proposed here is written into our laws, it will be cited to us again and again by other Departments and other Ministers in relation to other types of legislation and we shall be asked to accept the principle that, when a Government Department goes off the rails, it has nothing to do but come in here and have its irregularities validated.

I am afraid that Senator Duffy still fails to grasp the fundamental principles at stake here. I should like to remind him that, between the two Acts of 1924 and 1934, over 80,000 persons applied for pensions. It must be obvious, even to Senator Duffy, that a large number of those persons could not possibly have had genuine claims. When the Referee, under the 1934 Act, found himself facing an almost impossible task, it was quite reasonable for him to say: "This task with which I am faced can not be completed in my lifetime unless I take some special measures to deal with it." The special measures he took for the handling of the 60,000 cases with which he was faced, were to divide the personnel of his Advisory Committee into groups, and to use those groups to speed up, so far as possible, the hearing of the applications. After some time, the Referee found that that would not be sufficient. He then suggested that he should be given—this was based on his experience—a certain number of individuals who would examine the forms to see if, in fact, they revealed what he would regard as prima facie evidence of service. That was the work on which the interviewing officers were engaged while the Referee and his advisory body were dealing with prima facie cases.

The interviewing officer, having examined a form, might say that there was no evidence whatsoever of the applicant's title to a service certificate. But he did not take a decision on that question. The interviewing officer had no function other than to refer those forms to the Advisory Board, with an endorsement stating that the Act did not apply to the particular case. These forms were then examined by the Advisory Committee. If the Advisory Committee were in agreement with the interviewing officer, that the form did not show a prima facie case, they endorsed the form, stating that the case was one to which the Act did not apply, and passed it to the Referee. The Referee himself examined the form and signed the rejection notice, so that there could be no question of persons having taken upon themselves powers to which they were not entitled. Their function throughout was to eliminate, so far as possible, waste of time by the Advisory Committee and the Referee in examining forms in which there was no evidence good, bad or indifferent, that the applicant had a case. The only function the interviewing officers had was the saving of time.

I strongly recommend the House to reject this amendment. Already, every case has been heard and every case has been given the investigation to which it was entitled. This amendment, and the following amendment, which is practically of the same type, are designed to invalidate everything that has taken place up to the present. It would mean that the 60,000 cases would be entitled to a rehearing. I submit that that would be a quite impossible task at this stage. I have not heard of any charge at any time of gross injustice against the Referee. No cases were brought to the courts charging the Referee or the Advisory Committee with failure to hand out justice. The only cases that were brought were those dealt with by the High Court and the Supreme Court, and in none of these was there any suggestion of anything being wrong, other than that the wording of the Act had not been carried out in the literal sense that the Supreme Court thought it should be.

I am not alleging, and I hope the Minister does not imagine, that there was any charge of injustice so far as the Referee is concerned. I made my case from the beginning on this basis: Both Houses of the Oireachtas agreed to the enactment of legislation making provision for the determination of claims for service certificates. The law passed by both Houses was quite plainly ignored, set aside, or scrapped by whomever was responsible; whether it was the Department, the Minister or the Referee. They completely ignored the provisions of the Statute, and did something which was never contemplated by either House of the Oireachtas. I agree that the Minister is perfectly right in saying that 50,000 cases were dealt with according to a particular procedure that was wrong. We have tried to give these decisions a lawful validity. What I am endeavouring to point out is that, at some stage, the Minister or the Department must have become aware of the fact that the Referee was overwhelmed with applications, which could not be disposed of within two, three, five or ten years by the procedure contemplated in the Act, and that it was mandatory on the Minister to come back to the Oireachtas with new proposals. I do not care what these proposals were. If you like they might be these proposals or some other set of proposals, to enable the Referee to dispose of applications in a reasonable time. The duty is clearly placed on the Minister, if he finds legislation unworkable, to come back to both Houses with proposals to amend the legislation. There is no use in telling us that the Referee was overwhelmed with claims which could not be disposed of in his lifetime, and leave it at that, or in saying that like a sensible man he did the next best thing, adopted totally illegal procedure to dispose of the cases. I do not think we should give our imprimatur to that conduct on the part of the Referee or on the part of anybody else.

I do not want to multiply difficulties for the Minister. I see his difficulty in regard to the large number of cases dealt with by the Advisory Committee, which apparently was divided into two groups to dispose more expeditiously of the applications. I am trying to distinguish between the proceedings of the Advisory Committee, a body set up by statute, and the proceedings of people of whom we know nothing; who were brought in without any lawful authority to dispose of these cases. The Minister tells us that the cases were not decided by interview. Everyone knows quite well that the manner in which the interviewing officers perform their functions might very well decide the fate of an application when it came for signature to the Referee. An interviewing officer who has made up his mind that A.B. should not get a certificate will be so biased, in spite of himself, in preparing his file that the appearance of the file when it reaches the Referee prejudges a case. I want to avoid that. I am not asking that people who were interviewed by the interviewing officers should get a rehearing. I am only asking that if they think fit to apply for rehearing they will get it. I want to make it perfectly clear that this amendment is not designed merely to make difficulties, but to insist on the authority of the Oireachtas, having framed legislation and made regulations, being enforced. I think it is the duty of every Senator to insist when legislation is enacted here that it will be carried out in the spirit in which it was enacted. On a previous occasion I quoted in this House statements made by the Minister's predecessor when introducing the Act of 1924, in which he assured the House that every application would be considered by the Referee, and that the applicant would be examined by the committee and the Referee. All I complain of is that when the Minister found that that could not be carried out he did not come back here and get the law altered.

Senator Duffy's statement bears out the saying that courts might find a flaw in every law that is passed. I think the Senator's attitude is unreasonable in this matter. As the Minister explained, if the Referee found the burden becoming too heavy, the obvious procedure for dealing with it within a reasonable number of years was to divide the committee into two sections.

Why did not the Minister come back to the Oireachtas?

He has come back now.

He has come back to get the imprimatur to what was illegal for 10 years.

I understand that the Referee at the time stated that it was not necessary to have new legislation. I know as much about the procedure as most people. I was with the Referee when he dealt with cases. I was before two separate committees when additional people were put on. I have given evidence in connection with some extraordinary cases. Now, even if the Referee himself, individually, were to sit down there in state, if you like to put it that way, in order to deal with the 60,000 cases, and deal with them thoroughly, as they have a right to be dealt with, I believe that the Angel Gabriel would not be able to catch up on them before we would be through with them. For instance, there were numerous cases of people who went up there, who were not what you would call normal; in fact, some of them were abnormal. When people like that come before the board, and the Referee starts asking them questions, these people, in all seriousness, make statements which are completely ridiculous. The only way we could possibly get over that was to divide the committee, as was done at first, and then put on extra people to segregate those cases, and the Referee accepted responsibility, as the Minister has pointed out, in these cases, because the responsibility in these as in other cases had eventually to be taken by the Referee. If, as Senator Duffy suggests, provision should be made to have reopened as many of those cases as the applicants so desired, has Senator Duffy any doubt in his mind that the number would be very large?

It would only apply to the number of cases dealt with by the interviewing officers, and to nobody else.

Even in the matter of the number of cases dealt with by the extra officers, I do not know what the figure would be, but I can well imagine. I have stood up there in thoroughly uncomfortable circumstances in Coláiste Caoimhin, where the wind would cut the nose off you, waiting while queues and queues of people passed through, and I think I know the mind of the Old I.R.A. men as well as most people, and I certainly have their interests at heart; and I believe that the overwhelming majority of those people would not want those 60,000 cases gone into again, even if it were possible to do so. I do not think it would be necessary at all, and I suggest that Senator Duffy should withdraw his amendment.

I think Senator Quirke realises—his speech indicates that he realises—that there is a much bigger issue at stake here than merely a review of a number of applications. The principle at stake here is this: whether a Government Department shall simply scrap legislation and, by regulations made by themselves, do the very opposite to what is in the law and the very opposite to what the Minister assured the House would be done. That is the issue at stake.

I should like to quote for the information of the House the fact that under the Statutory Rules and Orders, No. 354 of 1934, there were issued rules for the guidance of the Referee, and Rule No. 7 of these Regulations stated that: "Subject to the provisions of the Act and these rules, the Referee may regulate his own procedure." Now the Referee, I should remind the House, was a Circuit Court judge who was taken from the bench where he was actively operating and put in charge of this board, and it had to be presumed that he at least knew the law. He presumed, I take it, that he was working within the Act when he found that he was covered by these regulations. I do not think I am making an extravagant statement when I say that the High Court upheld that viewpoint, because the High Court did not grant the conditional orders asked for. It was when the appellants went to the Supreme Court that the Supreme Court, as I mentioned on the Second Stage of the Bill, taking a purely legal point of view, decided that the Referee was not acting strictly in accordance with the Act. In other words, the applicants were not appearing "before the Referee", and it was these three words——

To face the issue, in other words, he was acting illegally.

Well, if the Senator wants to have that, we will grant it to him, but that is not a reason why this Bill should be invalidated, just to gratify the Senator's point on that matter. As I have said, I feel, and I am sure the House feels with me, that there has been no case, certainly, of gross injustice against any individual.

I have never alleged that.

I am not suggesting that the Senator has. I am only saying that there has been no case of gross injustice inflicted on any individual. In fact, there has been no case of even a minor form of injustice. Of course, there have been complaints by applicants who have been refused pensions that they were as much entitled to a pension as Tom, Dick or Harry, but the fact is that the Referee must be the judge, and not this House or the other House.

There must be some finality to these cases that have been decided, and the only finality there can be must be based on the Referee's decision. We cannot come to this House or the other House and rediscuss or rehear these cases. We cannot do that. The decision of the Referee, in accordance with the Act, is final, conclusive, and binding, and I think that we, here, ought to accept that in the spirit in which it is framed and not attempt to rehear or rejudge and give our views on decisions which have been reached by a Circuit Court judge in practically every case, with the exception of the present occupant of the position who, I should say, was, for a period of, roughly, about six months, acting as a Circuit Court judge, but who is not now.

Perhaps I might mention this very important fact: that since the decision of the Supreme Court these cases are being heard strictly in accordance with the Act, and what is the result? The result of that is that the maximum number of cases which have been heard in a week has been 16, and if you make a calculation on that, you will see that if we were to continue at that rate to rehear all these cases it would take, not the 70 years which I estimated, but 85 years, and I am sure no one would suggest that we should get back to that. There have been suggestions that we could easily get over that by appointing a number of referees. Possibly, we could, but the cost would be so exorbitant that it would not be worth the candle, and, as well as that, we would have varying decisions, varying degrees of service, and so on, which would simply add to the discontent and dissatisfaction that exist already.

I do not know what Senator Duffy is going to do about this amendment. Unlike most, I can examine this situation very objectively, since I have had really no contacts at all with any applicants for pensions under any of the Acts. I may say that I know one individual whose claim was turned down under this last Act and who, in my opinion, is entitled to a pension. I believe that he has been telling me the truth, and yet he was refused a pension.

Now, what strikes me about the position is this. I frankly admit that I have not the same interest in the matter as people such as Senator Quirke and others have, and who may have a good deal on their conscience in connection with this matter. Really the Minister is in the position in which he finds himself because the Party promised legislation and convinced a lot of people that they were going to get pensions. That may have been very unfortunate, but it is the impression that was created in the minds of a great many people. Your legislation took the form that it stipulated that the Referee was to give a decision. The Referee was to be the final judge. It was then discovered apparently that the Referee was not in fact the judge, that he did not, in fact, examine the applicants. Anybody who has ever been in a court of justice— and some of us have been in a court of justice in varying capacities—know quite well that it is of the greatest importance for the judge himself to examine the applicants. I think it was equally important in this, as in every other court where an individual was putting his case, to get justice. The position as I see it is that the Referee was no doubt very well served by the people to whom he delegated the work, but anyway the final responsibility was his to pass judgment on each applicant and he did not see the applicants. He did not examine them himself. I confess that I think the reaction of every judge in every case, as reflected in his decision, is to a considerable extent determined by the attitude of the person examined before him. That, as it seems to me, is the position which the Minister is up against.

I do not know what I should do if Senator Duffy proposes to push this amendment to a division. I do not know that I could have an awful lot of sympathy with people who preached pensions to such an extent that they had 80,000 applying for them, apparently including thousands whom they regarded as not being qualified for pensions at all. I do not know that there is any great obligation on me to take them out of that difficulty. As far as the Minister is concerned, a very peculiar situation exists, but in the last analysis the Minister is charged with the responsibility of doing justice to the most humble. If he is satisfied in his mind that it is not absolutely essential to the administration of justice in this case for the judge to be present when an applicant is being, as it were, tried, then he is propounding a new principle in my opinion in the administration of justice. Frankly, I do not know that it is a principle to which I would be prepared to subscribe. I should not like to go into any court in any capacity whatsoever to have judgment passed upon me by a judge who was not present. That is how the thing looks to me. I do not know what Senator Duffy will do, but if I have to commit myself to a principle I should like to be satisfied that inherent in it was some conception of justice.

I should like to refer briefly to one statement made by Senator Baxter that certain people might feel it on their conscience to oppose these amendments because of the fact that they had preached pensions all over the country. The suggestion obviously is that the Fianna Fáil Party went round the country soliciting support on the basis of granting pensions to members of the Old I.R.A. It is not necessary for me to assure Senator Baxter, notwithstanding his political affiliations, that the most surprised people in this country when they found that they were going to be granted pensions were members of the Old I.R.A. They did not go out to fight for pensions, they did not expect pensions and, as I say, they were the most surprised people when they found that a Bill was to be introduced to grant them pensions. When that Bill was introduced, I do not think that even the members of Senator Baxter's Party offered any serious opposition to it.

As I stated previously, I think I know as much of the procedure up there as most other people with the possible exception of the Minister and some civil servants in his Department who are present. I feel that certain grievances exist and if I may say so, in a few cases, genuine grievances, not so much that people were turned down who should have qualified but because in the case of A and B, who had exactly the same service, A goes up and makes what we call a good case, while B who goes forward with exactly the same service but with possibly not the same amount of experience and possibly not the same amount of education, makes not so good a case. I am not suggesting that either man departed from the actual truth. It is not necessary at all that they should depart from the actual truth, but one man could tell the truth in a different way from the other man. A gets a pension and B is turned down. B's grievance is not that he has not got a pension but that A who lived across the road from him, and who had exactly the same service, got through. Now people in B's category are, I think, entitled to pensions but I cannot see any way by which the matter can be covered. I, as I have said before, have given evidence in these cases. I know that a certain man down the country has had a certain type of service, but he goes before the Referee and if he is asked certain questions and he answers them in the negative, nobody can remedy that for him. He can come along either to Senator Baxter or to me or to anybody else and say: "I was excited; I had a few drinks taken" or something of that kind, but no legislation can be drafted to deal with cases of that kind.

Surprise has been expressed at the number of people who applied for pensions. Possibly we were all surprised at the number of people who applied, but I certainly am not surprised at the number of people who got pensions, and if it were possible to bring in other people, there are still hundreds of people in this country who have not been catered for in this or any other Act. Again, I say there is no legislation which could cover these cases. I am thinking particularly of the case of a man who had a dug-out, for instance, on his farm, a dug-out, perhaps, in his own house. Armed men were kept in these dug-outs, arms were dumped there, and explosives were being kept there. If these dug-outs had been found, these men with their families would have been blown sky-high, but just because they were not members of the forces on either of the critical dates, they did not qualify for pensions. Does Senator Baxter, or anybody else, suggest that they are not entitled to consideration of some kind? Again, however, I do not see how legislation could be drafted to deal with such cases. I think we ought to deal with this matter in a sensible way, and not try to score petty political points over it. The situation must be regularised, and there is no better way to regularise it than by the Bill before the House.

I am afraid that Senator Baxter and Senator Quirke have now got into their stride.

I have finished.

When I proposed this amendment, I was very careful and very desirous to keep strictly to one aspect of the matter under discussion. I put down the amendment, first and foremost, to narrow as much as I could the omnibus provisions of this Bill in so far as it proposes to validate irregularities. My suggestions to the House were that it is our function, so far as lies in our power, to uphold the supremacy of the law that is enacted by the House. I was not discussing the merits or the demerits of any application for a certificate for a pension. I did not criticise the manner in which decisions were reached. I did not allege injustice—I repudiated the suggestion that injustice has been done. Therefore, I dislike that there should be a political discussion now about the merits or demerits of the Pensions Acts, because, if that avenue is to be opened up, it will obscure for us what seems to be the essential point in this discussion.

The central point for me is that if legislation is passed by both Houses of the Oireachtas, we must do what we can to prevent anybody driving a coach-and-four through that legislation. No doubt, in giving a Second Reading to this Bill, we have confirmed the principle, the principle being that a cloak of validity will be drawn over gross irregularities. All I am endeavouring to do in the amendment is to limit its field of operation so as to give validity to the decisions reached by any member or members of the Advisory Committee, but to stop there, and to refuse to give validity, that is to say, to give binding force, to decisions based on investigations by particular officers given the task of making these inquiries without any statutory authority. That is the only point I am concerned with.

The Minister, in his last statement, proceeded to read the regulation, a very proper regulation, made for the guidance of the Referee and when he quoted Section 7, do not let us forget that the opening words were very properly "Subject to the provisions of this Act and to the regulations made thereunder". That was a perfectly proper regulation, but the Referee did not make any regulation for his own conduct subject to the provisions of the Act. His regulation was contrary to the provisions of the Act.

What is very important, although it is not legally binding, is the undertaking given by the Minister who introduced the Bill in the House in 1934. The undertaking given by the Minister was that every applicant would have an opportunity of appearing before the Referee and the committee and making his case. I am not saying that that was a practical proposition in view of the large number of applications subsequently received, but I am suggesting that the Minister who was in charge in 1935 and 1936, when confronted with this shoal of applications, should have come back to the Oireachtas and said: "This Act of 1934 is utterly unworkable unless we change the method of making the application." If any Minister came back to the House and made that case, I am perfectly certain that members of both Houses would be most anxious to facilitate him.

Having made the legislation, they would see that the Act could not be operated in the manner in which it was intended to operate. But that was not done, and would not be done now if certain applicants had not a grievance —I am not discussing those grievances —and had not gone to the High Court. The High Court refused by a majority to make the conditional order absolute. The High Court happened to be wrong. The Supreme Court held that the High Court was wrong and that the Referee was wrong and that the law was ignored. All these cases accordingly were held to be entitled to review.

I am not discussing what would happen on review—I do not know. I am not proposing to prophesy. I adhere strictly to the point with which I commenced, that it is the duty of the House to tell the Minister and the Government, and every other citizen, that when legislation is enacted they are going to see it is carried out according to the letter of the law and not otherwise.

Mr. Patrick O'Reilly

There is no great point in making it possible for those seeking pensions to send in their applications, as provided by Senator Duffy's amendment. I think that claims have been dealt with in the light of the details given on the application forms of the applicants. When it became obvious that there was no possibility of the applicants qualifying on the basis of their forms, or on any supplementary evidence submitted, I do not think it would be fair to those who have been turned down, according to law, assuming that they have been heard by the Referee, to give an opportunity of applying again and undergoing the expense of travelling to and staying in Dublin, which would only prolong the disappointment. It is quite obvious, as the Minister stated, that all the applicants could not qualify. Good as the effort was against the British forces, it would have been much greater if all those who applied were entitled to pensions.

As regards the method of hearing claims, Senator Quirke stated that the Angel Gabriel would have been caught in the procedure laid down by the Act. I agree with the Senator that it was considered to be an expedient to give effect to the desire of the majority of the applicants and other interested parties who wished to speed up the administration of the Act. In doing that, a number of cases were decided, having regard to the claims on the applicants' forms, which showed clearly that they could not possibly qualify.

I agree that there might be cases such as those cited by Senator Quirke, where people gave very valuable service at the time, but failed to qualify because they were not members of the I.R.A., even though they had given greater service than members of the I.R.A. But if you were to give evenhanded justice under that Act, you would have to take case after case and go over them one by one, providing for every particular case. I think it will be agreed that it is impossible to do that sort of thing, that legislation can only be made to apply in a general way, even though there may be cases of hardship. That is unfortunate.

I am of opinion that it would not be possible to take case after case and, if you like, legislate for every one. Senator Baxter referred to the importance of the applicant being heard by the judge in any court. There is quite a lot in that, I agree, provided that there is a question at issue. But if it becomes clear to any person administering the Act, as the Referee was administering it, that the applicant had no case—in other words, that there was nothing at issue—then I suggest it would not be contrary to reason for the applicant not to be heard by the Referee. It is only when there is a question at issue that it is important for the judge to hear the applicant.

I am inclined to think that there is dissatisfaction because of the administration of the Act; in other words, all the people that applied did not get pensions. Assuming it were made much easier and that more people would get pensions, there would still be a number of people disappointed. We have got to face up to the question whether this House will subscribe to giving pensions to every applicant. We must make up our minds about that. If we agree that every person that filled in a form is entitled to a pension, well and good. I am inclined to think that all the people who applied are not entitled to pensions. Many may be, but there may be cases of hardship. It is very hard to legislate for individual cases. The trouble is that the onus of proof was on the individual. That is the reason there is so much dissatisfaction with the administration of the Act.

For instance, if an applicant was prepared to state that I fought in the General Post Office in Easter Week and that I got evidence to that effect, if people qualified to do so certified that that was correct, then the judge would have no option but to award me a certificate of service, even though it would have been physically impossible for me to have given it. That was the position. If there is dissatisfaction much of it was caused by one man trying to get a pension at the expense of his fellows. Because that position arose and because they were trying to get through all cases within a reasonable time the procedure referred to was adopted. It has been found by the courts not to be strictly in accordance with the Act even though it may have been the intention of the Legislature at the time. If the Legislature finds that what it intended to do was not, in fact, done and if a court held that no matter what it may have intended to do, it actually did something else, surely it is the right of the Legislature to go back and amend the legislation. That, in my opinion, is all that is being done here.

That is what I have to say with regard to the Act. I do not think it is quite fair that people who would have no case should be allowed to apply for a rehearing under the amendment proposed by Senator Duffy. I see no useful purpose in doing so. If we had evidence of grievances it would be possible by way of legislation, or by some other means, to get over difficulties that have been suggested by Senators, and to take, as suggested by Senator Quirke, a broader interpretation of the definition of "active service" as well as having some authority to inquire into cases that were turned down. That would be a far better plan than an amendment of legislation at this stage.

Question put.
The Committee divided:—Ta: 9; Nil: 25.

  • Baxter, Patrick F.
  • Duffy, Luke J.
  • Hayden, Thomas.
  • Horan, Edmund.
  • Keane, Sir John.
  • Kyle, Sam.
  • Madden, David J.
  • Smyth, Michael.
  • Tunney, James.

Níl

  • Clarkin, Andrew S.
  • Concannon, Helena.
  • Counihan, John J.
  • Crowley, Tadhg.
  • Hearne, Michael.
  • Hogan, Daniel.
  • Honan, Thomas V.
  • Johnston, Séamus.
  • Keane, John Thomas.
  • Kehoe, Patrick.
  • Kelly, Peter T.
  • Kennedy, Margaret L.
  • Lynch, Peter T.
  • Magennis, William.
  • O'Buachalla, Liam.
  • O'Dea, Louis E.
  • O'Donovan, Seán.
  • O'Máille, Pádraic.
  • O'Reilly, Patrick.
  • Nic Phiarais, Maighréad M.
  • Quirke, William.
  • Ruane, Thomas.
  • Stafford, Matthew.
  • Summerfield, Frederick M.
  • Sweetman, Gerard.
Tellers:—Tá: Senators Duffy and Smyth; Níl: Senators Hearne and S. O'Donovan.
Amendment declared lost.

I presume that covers amendment No. 2.

Yes. I do not think there is any point in moving amendment No. 2 because it is exactly the same idea in relation to another aspect of the Bill.

Amendment No. 2 not moved.

I move amendment No. 3:—

In sub-section (5), line 14, page 3, to delete the words "shall not be obliged" and substitute the words "may, if requested to do so by the applicant, consent".

My reason for moving this amendment, which I mentioned on the Second Reading of the Bill, was that on the earlier occasions and on a later occasion when claims were being dealt with, owing to the lapse of time, certain people were not available, many being in America and a great many having gone from us, and, in the preparation of lists and accounts of activities, it was not always certain that the statements were absolutely correct. When the verifying officers went before the Referee and the Advisory Committee to give evidence on behalf of applicants they were generally supplied with evidence by brigade committees or by committees acting on behalf of applicants. They might in perfectly good faith have given evidence which was contrary to what applicants actually claimed. In the majority of cases the verifying officer was not in a position to know what an applicant had claimed.

Some of the referees did not give any indication of the evidence of which they were in possession. Verifying officers went up and made a statement. If, at a later period—even up to the present year—an applicant was able to ascertain that evidence was given which did not, by any means, help his claim, that applicant should, at least, have a right to give rebutting evidence. I earnestly appeal to the Minister to consider the alteration of the clause so that referees may, if so requested, consent to inform applicants of evidence given against their interest and allow them to tender rebutting evidence.

I could not accept this amendment because the object of Section 2 (5) is to protect the verifying officer. It will be easily understood that, if a verifying officer had to give evidence in presence of the applicants, it might create a situation in which he might have to go on the "run." It would be most undesirable that we should reach a stage where the procedure of the referees who have operated up to this would be invalidated by acceptance of this amendment. For the reasons I have mentioned, I do not propose to accept the amendment. It would be most undesirable to have a situation in which the evidence of a man in respect of what might be an exorbitant claim would be refuted by the verifying officer in his presence.

It would not be necessary to have the name of the verifying officer or of any other person who might have given evidence or written to the board revealed. The present Referee actually does have the verifying officer, the applicant and other witnesses present and they give their evidence on oath. If a mistake has been made—I genuinely think that some mistakes have been made—surely, it is only fair and just to the applicant to allow him to tender rebutting evidence. It would not be necessary for the Referee to give the names of the persons who supplied the evidence which was to be rebutted. The applicant would not be in a position to know whether it was the verifying officer or anybody else.

I am in agreement with the Minister that it would be unwise to place a legal obligation on the Referee to do the things requested.

The word used is "may."

"If requested by the applicant."

The word is not "shall."

I suggest that, in this case, the word "may" will have a very different meaning from that which would ordinarily attach to it, and that the Referee would find himself in a very difficult position if he were to refuse the request. The word "may," in this case is, I think, almost mandatory.

Surely, you are either out to do justice or you are not. I fail completely to understand what we are after in passing this legislation. The majority of the members of the House are more intimately concerned with this question than I am. In the ordinary court the parties are entitled to know what case has been made against them. I know of no sphere in which there is greater possibility of bitterness over what is believed to be an injustice than in the case of this Bill. If the individual concerned cannot find out where he stands, I do not think you are doing justice. I cannot see any objection to the amendment.

I can see no difference whatever between the section, as it stands, and Senator Miss Kennedy's amendment. From the points made by Senator Miss Kennedy, it seems to me that the amendment should read "shall, if requested." As the section stands, there is nothing to prevent the Referee giving the information, if he wants to do so. Under the amendment, the Referee can also do so, if he wants to do so. It appears to me that the wordings are two ways of saying the same thing.

The Referee does, in the majority of cases, concede these points but the fact remains that there may be cases in which the verifying officer would regard it as unwise that he should be compelled to give evidence in the presence of people who may be making exorbitant claims which he will have to refute. He may have to go back and live in a small community with individuals by whom he will, probably, be charged with having deprived them of the pensions which they might otherwise have got. The evidence given by the verifying officers is given on oath. We have got to presume that these men, when before the Referee, are telling the truth and are not just ventilating spleen against some individual. If they do what they conceive to be their duty, they do not want to be advertised as having victimised some person who made a claim.

Amendment, by leave, withdrawn.

I move amendment No. 4:—

In sub-section (9), line 48, page 3, to delete the words and figures "1st day of February, 1945", and substitute the words "passing of this Act".

This amendment is not of fundamental importance but it has some importance in relation to the manner in which this House views procedure in the courts when framing its legislation. It should be observed that in sub-section (9) of Section 2 provision is made relating to what will happen in the case of a conditional order directing the Minister to send a report of the Referee to the court appointed. It was stated there what will happen where a conditional order of that kind has been made absolute by order of the Supreme Court or the High Court made before the 1st day of February, 1945. I find some difficulty in understanding the reason for that date, 1st February, 1945, because, actually, I think the Bill was introduced in the Dáil on the 1st March. I could understand a provision of this kind being inserted to prevent access to the courts after the Bill was introduced, but I do not understand the provision prohibiting access to the courts in respect of applications made in February, before the Bill was introduced. What I am endeavouring to do in this amendment is to substitute the date on which the Act is passed instead of the 1st February. It may mean a delay of six or seven weeks, but there is a principle involved, and that is, whether litigants who go into court are to be prevented from getting the benefit of their application at that time or, at least, at the time when their application reaches the court.

I do not know how the members of the Seanad feel on this matter, but I feel very strongly that we should be very slow to impose an impediment of this kind on applicants who genuinely believe that they are entitled to redress in the court and who, as has been proved in other cases, were entitled to the redress they sought. On those grounds I ask the Seanad to substitute the words "passing of this Act" for the words "1st day of February, 1945", which now appear in the section.

I am not accepting this amendment. The amendment is in direct conflict with Section 3, which we brought in specially to deal with this particular type of case. I think it was on the 21st December that we issued a warning to all persons, likely to engage in this type of case, that they would do so at their own risk. I think that that was a fair warning-from 21st December to the 1st February—and we accepted practically every case because, after issuing the warning, we made the latest date for the acceptance of these cases the 1st February. Between 21st December and 1st February we accepted every case that was brought before the court. When this Bill was being introduced we specified the 1st February as the latest date up to which we would accept these cases. I think that that was reasonable, and we are not going to go beyond that particular date. If any cases should be taken into court, where an individual may think it is worth the risk, well, then, we are going to make him pay for that risk which he may be inclined to take, after that, and I do not think anyone can grumble very much in that connection.

I do not think that argument arises out of this amendment.

Personally, I do not like the wording of the sub-section, which it is sought to repeal, but I do understand that the warning referred to by the Minister was issued. I should like to know, however, whether there were any cases of conditional orders being made absolute after the 1st February, because, if not, I do not see any force in proceeding with the amendment.

No. No orders have been made absolute since.

Amendment, by leave, withdrawn.
Section 2 put and agreed to.
SECTION 3.

I move amendment No. 5:—

In page 4 to delete sub-paragraph (ii), lines 31-38, inclusive.

This amendment, as a matter of fact, relates to the point to which the Minister addressed himself on the last amendment; that is, the second sub-paragraph in Section 3. It seems to me that this is a most outrageous proposal. The section was not in the Bill when it was originally introduced. It was introduced on the Committee Stage in the Dáil, and its purpose is that in certain circumstances a litigant will be made liable for his own costs and for the Minister's costs, irrespective of what the court may think of the matter at all. Now, as far as I know, it has been regarded as the regular practice of law in this country that the awarding of costs is in the discretion of the court. I have heard that argued over and over again. I was interested in a case some years ago in which a very large sum of money was involved. The peculiar situation arose in which it was impossible to give the relief sought for, but the court allowed costs to the petitioners. I remember an appeal being taken against that award, and the defence argued in the High Court, or the Supreme Court, I think it was, that the awarding of costs was entirely in the discretion of the court, and I think that that was generally accepted. The proposal contained here takes away that discretion entirely. It says that "if the Minister appeals and the appeal is allowed, no costs in the High Court or the Supreme Court shall be awarded to, or be recoverable from the Minister by the prosecutor, but the Supreme Court may make such order as it thinks fit for the payment to the Minister by the prosecutor of the costs of the Minister in the High Court or the Supreme Court or in both.

Now, I read the defence of this sub-section that was made by the Minister in the Dáil, and it seems to me that he has got hold of the wrong end of the stick. He argued that his purpose was to prevent grasping lawyers getting hold of discontented I.R.A. men and inducing them to make applications to the court which would involve them in a substantial sum in law costs. In that connection, the essential thing to bear in mind is that the solicitor or counsel cannot move in these cases unless there is an applicant who has a bona fide application and a right to go to the court.

The solicitor or the counsel is merely the instrument used by the applicant, and what is being proposed in this sub-section is the preventing of a poor applicant going into court because, if the applicant has plenty of money and can afford to take the risk, he can go into court anyway; but if he is poor, unless the solicitor is very generous, he will be unable to find a solicitor who will take his case to court, as there is no assurance that the solicitor will be able to secure his costs. I think that this is a most hateful way to approach a problem of this kind and I do not think that, on reflection, the Minister will feel any pride in this kind of legislation. I would urge very strongly that even at this stage he would eliminate this provision and leave it to the discretion of the court to say whether or not costs would be awarded against an applicant.

I wonder whether the Minister would clear up a difficulty in my mind. I understood him to say a moment ago that no conditional order has been made absolute since the 1st February last. Is that correct?

Is that the position?

If that is the position what is the point of this section?

This section is to provide against the possibility of that matter developing, as it was developing.

But in fact it has not developed.

No, it has not developed as the result of the introduction of the amendment.

And, in fact, if the Minister is given all the stages of this Bill to-day, and the Bill is signed within the next five days, that situation could not eventuate?

No, by reason of the fact that we had this to cover it.

If you take it out now, it could not develop.

I should not like to argue that.

That is the fact. I am interested in this only from the point of view of the general principle. It appears to me that if you take that out now and get the Bill signed, the Minister cannot be damnified in any way. I am accepting, of course, his assurance that there has been no conditional order since the 1st February.

No conditional order made absolute?

But supposing an application is made to the court to have a conditional order made absolute?

You could not do that without four days' notice.

If the section is not any use, it embodies a bad principle. Why should it be there if it is of no value? The Minister's position is that he had this section in terrorum. He had prevented people from taking certain action by having it in the Bill. He does not need it in the Bill now.

He does not need it, if it is signed within five days.

I understand that there is no conditional order at all. Was any conditional order obtained since the 1st?

There were sixteen, or round that number, obtained.

From Galway?

Not from any one particular county.

Sixteen is a very small number to be the cause of a sub-section of this nature going in. I must say that I do not like this sub-section at all. It does seem to cut across the general principles governing legislation because I know that, when cases are brought on and when sometimes a Bill is introduced to deprive the plaintiffs of their supposed remedy, they always got their costs from the court up to the date of the passing of the Act. I do not like the word "High Court" in the section, and I think it should be omitted. If the Minister could see his way on Report Stage to delete the sub-section, if he is satisfied that it is not necessary, I would sugget that he might do so.

This Section was only inserted after consultation with the Attorney-General. It was deemed so necessary that we decided to bring it forward as a Government amendment. I am satisfied, even though no conditional order has been made absolute, that the position might very well be that visualised by the Attorney-General, when it was deemed necessary to have it inserted in the Bill. For that reason I shall have to insist that it shall continue in the Bill.

I do not want to divide the House, but I wish to be put on record as being opposed to the section.

Amendment negatived, Senators Sweetman, Kyle and Duffy dissenting.

Question proposed "That Section 3 stand part of the Bill."

We have left the amendment now and the only thing I desire to say about the section as a whole is that I am not accepting, and I do not want to be taken as accepting, the Minister's point of view about the section when he originally obtained the opinion of the Attorney-General as to whether it was desirable or not. That is the Minister's business, but I do want to suggest to him that, the position having been reached in which the facts are that no conditional order has been introduced or has been made absolute, he would between now and the Report Stage ask the Attorney-General whether it is still necessary to have the section included. If the Attorney-General should be of opinion that it is still necessary, I can see the Minister's point of view, but I do not think the Attorney-General will take that point of view. It is for that reason I would ask the Minister to remove the section now.

Question put.
The Committee divided:—Tá: 20; Níl: 13.

  • Clarkin, Andrew S.
  • Concannon, Helena.
  • Crowley, Tadhg.
  • Healy, Denis D.
  • Hearne, Michael.
  • Hogan, Daniel.
  • Honan, Thomas V.
  • Johnston, Séamus.
  • Keane, John Thomas.
  • Keogh, Patrick.
  • Kelly, Peter T.
  • Lynch, Peter T.
  • Magennis, William.
  • O Buachalla, Liam.
  • O'Donovan, Seán.
  • O Máille, Pádraic.
  • Nic Phiarais, Maighréad M.
  • Ruane, Thomas.
  • Stafford, Matthew.
  • Summerfield, Frederick M.

Níl

  • Baxter, Patrick F.
  • Coumhan, John J.
  • Doyle, Patrick.
  • Duffy, Luke J.
  • Hayden, Thomas.
  • Horan, Edumund.
  • Kyle, Sam.
  • Madden, David J.
  • O'Dea, Louis E.
  • O'Reilly, Patrick.
  • Smyth, Michael.
  • Sweetman, Gerard.
  • Tunney, James.
Tellers:—Tá: Senators Hearne and O'Donovan; Níl: Senators Duffy and Smyth.
Question declared carried.
Sections 4, 5, 6, and the Title, put and agreed to.

I would be grateful if the House would consider taking the final stages now.

Is the Minister prepared to ascertain the opinion of the Attorney-General on the point in question?

I certainly will.

The difficulty I see is that, if we take the next stage now, nothing can be done. Is not that the situation?

We can take it to-morrow.

As a matter of fact, one of my officials is doing his best to get in contact with the Attorney-General now.

At any rate, the next stage will take only a few seconds.

Acting Chairman

We could take it after the tea interval.

If it would meet Senator Sweetman's difficulty, we could leave it over until to-morrow, because the Attorney-General's opinion may not be available this evening.

Acting Chairman

Very well, it can go on to-morrow's Order Paper.

I have no objection.

I would not wish to interfere with the arrangements for to-morrow's business.

It can be taken as the first item.

Acting Chairman

Very well, it can be put down as first item if the House so desires.

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