Allegations Against Parliamentary Secretary—Motion for Tribunal.

Mr. Quirke

I formally move the motion standing on the Order Paper in my name:

That it is expedient that a tribunal be established for inquiring into the following definite matters of urgent public importance, that is to say:—

To investigate and report upon the allegations contained in a letter bearing date the 22nd May, 1946, addressed to the Taoiseach and the members of the Government by Dr. Patrick MacCarvill and an accompanying copy letter dated the 17th May, 1946, referred to in the first mentioned letter as a report to Dr. Patrick MacCarvill from Mr. Darach Connolly, solicitor.

The Taoiseach

I have given a considerable amount of thought to this motion and the manner in which I should present it so as to convince the two Houses of the Oireachtas that it was expedient to set up the tribunal in question. I came to the conclusion that the least unsatisfactory—I put it that way—method that I could adopt would be to read the letters referred to in that motion. I say the least unsatisfactory because from whatever angle you approach it it is difficult to get a really satisfactory method. I shall, therefore, read the letters. The first letter is from "8, Fitzwilliam Square, Dublin." It is dated the 22nd May, 1946, and was received in my office on the 28th May. It is addressed to: "An Taoiseach and each Member of Government." It is from Dr. MacCarvill and reads:

"A Chara,

My brother, Johnny MacCarvill, has been dismissed from his position as manager and secretary of the Monaghan Curing Company by Dr. F.C. Ward, managing director of the company, by powers that, I am now instructed, were self-arrogated. The manner and circumstances of his dismissal were such as to give the impression that he must have been guilty of serious misconduct, and accordingly, there has been much local rumour and comment.

For the benefit of those who do not know my brother, I should say that he is a well-known man— perhaps one of the best known men —in County Monaghan. He has an excellent record in both Irish wars; is an office-holder in the principal Fianna Fáil organisations in Monaghan, being vice-president of the North Monaghan Comhairle Ceanntair and joint treasurer of the Comhairle Dáil Ceanntair; has acted as Fianna Fáil election agent at all elections in Monaghan since 1932, including the Presidential Election in 1945.

So as to discover, without prejudice, all the facts, I have submitted to Mr. Darach Connolly, solicitor, the company's accounts, balance sheets, much correspondence, and memoranda, etc., for report and legal opinion. I attach herewith a copy of his report, and the astonishing disclosures therein require no comment, though I would like to draw the attention of the Minister for Agriculture and the Minister for Finance to paragraphs 4, 5 and 6 of the report.

It is reasonable for anyone to ask why my brother was dismissed, if it is true that he managed the company well. I have gone very closely into the question myself, and the reason appears to me as follows:—

Last January, when Dr. Ward took the first steps in this unwarrantable action, he was hoping in a very short time to be promoted to a Ministry in which case, I understand, he would have been compelled to resign his managing directorship of the company. From Mr. Connolly's report it is obvious that Dr. Ward would thus have been at a serious financial loss, so he had to find some means of recouping himself. His son, an undergraduate in the Commerce Faculty in U.C.D., has already some experience of the business, acquired during the holiday periods at Clover Meats, Ltd., Bacon Curers, Waterford. This young man, before there was any question of dismissal, stated to a reliable witness that he would be going to Monaghan to take my brother's position, and this was later confirmed by Mr. Corr, deputy managing director of the company. The managing directorship and the managership would have been merged, and a new plan adopted for profit-sharing, as the old one would no longer suit. My brother was an obstacle, so he must go, the only reason given being that it was "in the interests of the shareholders"— a genuine enough reason when one remembers that 5/8 of the shares are held by Dr. Ward, and how better could the "interests" of at least the majority of "the shareholders" be served than by installing one of his own family.

This explanation seems more than reasonable, for it corresponds very closely with Dr. Ward's action some three or four years ago in ordering the dismissal of Mr. Matt Fitzsimons, an excellent agent of the company. The only reason in that case was to make room for Mrs. K. Ward, the lady mentioned in Mr. Connolly's report, as chief agent in the carrying out of undisclosed cash sales.

On a parallel with the system of conducting undisclosed cash sales in the curing company, is the method adopted by Dr. Ward for drawing by another hidden system, some 50 per cent. of the salary and emoluments attaching to the position of medical officer of the Monaghan Dispensary District. The system is as follows:—

A temporary medical officer is appointed by the Monaghan Board of Health to discharge Dr. Ward's duties, at the same salary to which Dr. Ward would be entitled if he were still dispensary officer there. (This rate is important from Dr. Ward's point of view, not only because of what he draws yearly from it, as shown hereafter, but also, by keeping up over the past 14 years, the higher rate of salary with the periodic increments, he has now reached his maximum salary, and therefore, as the pensionable officer, gets the benefit of it.) The temporary medical officer appointed by the board of health is recommended for the appointment by Dr. Ward, who then lays down his conditions, namely: that all cheques for salary and emoluments paid to the temporary medical officer must be endorsed by the medical officer and delivered uncashed to Dr. Ward, who then pays the temporary medical officer at a rate which has varied thus:—

First temporary medical officer who acted from March, 1932, to Septemper, 1935, at £4 4s. per week.

Second temporary medical officer who has acted from 1935 to the present date, at £5 5s. per week from 1935 to 1943, but increasing since 1943 to the present figure of £29 per month.

As the salaries and emoluments have varied from, roughly, £450 per annum to £575 per annum, it means that Dr. Ward has drawn and continues to draw an annual sum of not less than £200-£250, while to all appearances the temporary medical officer is getting the entire amount. He is not ungenerous, however, for in return for the payment of this enforced tribute, he allows the temporary medical officer, after the first year, to keep the private fees earned in the district—where Dr. Ward himself has not practised for 15 years. During the first year he exacted half the private fees as well.

Dr. J.F. McGeough, Monaghan Street, Newry, filled the position for the first three and a half years. He was dispossessed in September, 1935, for lodging, in June of that year, the cheques for the April-June quarter to his own account, and informing Dr. Ward that he expected the terms of his appointment as temporary medical officer by the board of health to be fulfilled. Dr. Ward dispossessed him by the simple expedient of himself asking permission from the board of health to take up duty again. The permission was granted, and he did, nominally, take up duty (although he was then whole-time Parliamentary Secretary), until he found another doctor to consent to his conditions.

At least one doctor, named Murray, at the time refused the conditions, and this man I am trying to trace so that he may testify to the conditions submitted to him.

Dr. McGeough, who is now beyond Dr. Ward's ex-officio reprisals, is quite willing to prove, on oath if necessary, the facts governing the period 1932 to 1935. I could invite Dr. M.P. O'Gorman, the occupant of the position since 1935, to submit confirmatory evidence only if the Minister for Local Government and Public Health will guarantee him immunity against Dr. Ward's vengeance, for, in addition to acting as Dr. Ward's deputy, he has recently been appointed to a neighbouring rural dispensary district, and feels that if Dr. Ward had still official power over him, it would not be safe to disclose the position.

I hope that some means will be devised to ensure that restitution will be made to these two doctors. Until my brother sought my advice regarding his summary dismissal, I was unaware that the Monaghan Curing Company had been conducted in the manner disclosed.

Since 1932, there had been persistent rumours, widespread among the medical profession, that Dr. Ward was continuing to draw part of the salary of the Monaghan Dispensary District. I was aware that Deputies Dillon and O'Higgins had tried to get evidence of this, but it is only now that I fully understand why they did not succeed.

When the curing company affair came to my notice, I decided to make a thorough and impartial investigation, for the reason that I felt that I was in a particularly favourable position to get reliable information. Having got it, supported by documentary and personal evidence, I now feel that it is my duty, before advising or taking any other steps, to submit it to the Government in the interests of the Government itself, and the country generally, especially my native county.

Amongst other matters which might profitably form the subject of inquiry, but about which I would find it difficult to get conclusive evidence, is the taking of funds—it is said some hundreds of pounds—from the Monaghan Public Utility Building Society to erect a Fianna Fáil Hall at Carrickroe, on land rented by Dr. Ward himself. I am told that it is known locally as the Ward Hall, and that he exercises the authority of a landlord over it. The funds were not returned to the society, nor any offer made to do so. This is my unconfirmed information.

I have dissuaded my brother from taking any action until the matters disclosed herein have been considered by the Government. Mr. Darach Connolly, solicitor, has custody of all the available documents concerning the curing company, and is authorised to submit them for inspection, if required. Dr. McGeough is prepared to submit evidence by way of affidavit or in person, if deemed necessary, and Dr. O'Gorman's supporting proof will be forthcoming, immediately he is assured of protection. Mise, le meas, P. MacCarvill."

The next letter is addressed from 21 Parliament Street, Dublin, and is from Mr. Darach Connolly, solicitor, to Dr. Patrick MacCarvill, 8 Fitzwilliam Square, Dublin:—

"Dear Dr. MacCarvill—In accordance with your instructions, I have carefully examined the audited accounts and balance sheets, correspondence and memoranda relating to the Monaghan Curing Company, Limited, placed at my disposal.

Since 1938, the company has had a share capital of £8,000, divided between the three directors, who are also officials of the company, as follows:—Managing director, Dr. F.C. Ward, £5,000; deputy managing director, Mr. Joseph Corr, £2,250; manager and secretary, Mr. J. MacCarvill, £750; total, £8,000.

The audited accounts for the years 1938 to 1944 show that the company, on the average, has made extremely good profits, especially when considered in relation to the amount of the capital invested. I should, perhaps, point out that the company has never paid any dividends as such, but the directors drew from the company, by way of salary and otherwise, in exact ratio to the amount of capital held by each. Since you expressly ask for a statement of the amounts drawn by Dr. Ward, the following is a summary of the amounts drawn by him in salaries during the periods stated:—

During ten months of 1938, £916 13s. 4d.; during the year 1939, £1,000 0s. 0d.; during the year 1940, £1,750 0s. 0d.; during the year 1941, £2,000 0s. 0d.; during the year 1942, £2,000 0s. 0d.; during the year 1943, £1,000 0s. 0d.; during three months of 1944, £250 0s. 0d.; total salaries during six years and one month, £8,916 13s. 4d.

In addition to the profits shown by the properly audited accounts, it is quite clear from the documents furnished, that a well organised system of undisclosed cash sales was in operation during most of the period under review. It does not appear how the bacon was made available for these ‘unofficial' sales, while the company was working on a quota basis, but it is obvious that some method must have been adopted whereby the extraction of bacon and offal from the pigs killed was not disclosed in full to the Pigs and Bacon Commission. If you should require specific details in respect of this practice, I could furnish dates and names of consignees in respect of some of these undisclosed cash sales, from the records to hand.

It is quite obvious that the proceeds of these sales were not passed through the accounts of the company, nor included in the audited accounts. From this you will understand that moneys derived from this source were not returned for taxation purposes by the company to the Revenue Commissioners.

It must be assumed from this, that the directors profiting by these undisclosed cash sales have not included them in their personal income-tax returns, since by doing so they would have to disclose to the Revenue Commissioners the source of this income, thereby involving the company of which they were the directors and officials. As requested, I have summarised—I think accurately—the total amounts drawn by Dr. Ward out of these undisclosed cash sales during the period under review, as follows:—

During the year 1939, £106 14s. 4d.; during the year 1940, £12 19s. 5d.; during the year 1941, £173 0s. 1d.; during the year 1942, £368 10s. 9d.; during the year 1943, £522 19s. 0d.; during the year 1944, £1,027 9s. 9d.; during the year 1945, £753 3s. 5d.; total during the seven years, £2,964 16s. 9d.

During the period 1938 to 1945, inclusive, therefore, Dr. Ward appears to have drawn from the company almost £12,000, exclusive of any salary which he may have drawn for the year 1945 and the nine months of the year 1944.

It is abundantly clear from the records to hand that Dr. Ward directed and ordered the carrying out of these cash sales. One of the letters sent by him to the deputy managing director, and apparently handed over to the manager and secretary for attention, reads as follows:—

‘Morven',

Nashville Park,

Howth.

13th December, 1943.

Dear Joe—You might have two tons of Wiltshire sides dispatched to Mrs. K. Ward at Amiens Street. The consignment need not be entered up, but send her a note that you are sending her a certain quantity on a certain day. If you have more on hands than can conveniently be disposed of, you could send three tons. In calculating the quantity available you may assume that Pidgeon will not require any from us this month. I shall explain in detail when I go down. Please have these matters dealt with without delay.

I hope the stocktaking as on the 11th instant has been carried out.

—Sincerely yours, Conn Ward.

Mr. Joe Corr,

Church Square,

Monaghan.

P.S. The commission on this transaction can be paid in cash.— C.W.

(The underlining is not mine, but is in the letter and the P.S. is written, not typed).

It would appear that the Mrs. K. Ward (Dr. Ward's sister-in-law) mentioned in this letter was one of the principal, if not the principal agents here, outside the local area, for carrying out these undisclosed cash sales.

An original memorandum, written by your brother as manager and secretary and dated the 7th September, 1942, shows that he raised objections to this practice of undisclosed cash sales. In spite of the views expressed by him, however, he was at fault in allowing himself to be overruled, and in carrying out the policy adopted, in this matter. I have discussed with your brother this matter, and its significance from his point of view, and he has intimated to me his intention of paying to the Revenue Commissioners such amount as may be due to them by him in respect of moneys thus received (which amount cannot be too great in view of his small share therein).

In this connection I would draw your attention to the fact that, in spite of the very large profits which the company paid, relative to the amount of capital therein, your brother received, as manager and secretary, a wage of £5 per week, reduced to £4 per week in October, 1945. The nature and extent of his work, and the moneys involved therein make this figure appear unusually low, though his co-directors may have considered it adequate when his small proportionate share in the profit-salaries and out of the undisclosed cash sales was added thereto. Although I am not perhaps the best judge thereof, his management of the affairs of the company seems to have been efficient and successful, if the returns obtained by the directors and the completeness of the complicated records kept by him are any indication. With reference to one of your queries, there is, in fact, no suggestion in any of these records, even in the somewhat offensive letters written to him by Dr. Ward subsequent to his purported dismissal, that he misapplied or misappropriated any moneys whatsoever belonging to the company.

With regard to his purported dismissal, the circumstances seem to be as follows: On January 12th last Dr. Ward telegraphed to Mr. Corr instructing him to give the manager four weeks' leave of absence with pay (your brother was then in hospital). On January 26th Dr. Ward wrote to your brother purporting to terminate his employment as manager and secretary as from the 9th February, ‘in the best interests of the shareholders,' no other reason being stated. In this letter Dr. Ward offered your brother alternative employment as an account-collecting agent for the Counties Cavan and Monaghan, on the basis of a 2½ per cent. commission on all accounts collected within 14 days, a 1½ per cent. commission on all accounts collected within 28 days of the issue of invoice. Accounts not collected within 28 days were to be collected in any event, but no commission was to be paid thereon. He was also to ensure a steady supply of pigs to the factory. Remuneration was to be on the basis of this commission alone.

From the legal point of view, I am of the opinion that the articles and memorandum of the company do not confer on the managing director, Dr. Ward, power or authority to remove from office a person in the position your brother held. In my view, a decision of the board of directors would be necessary to dismiss the manager and secretary. This view is supported by the counsel's opinion which I have obtained from Mr. Cecil Lavery, S.C., and I would therefore advise that your brother has grounds for legal action on foot of a claim that his employment has not been properly terminated. Arrears of salary would be due to him from the company.

With regard to the reasons later given by Dr. Ward for the purported dismissal, apparently under pressure from your brother, his allegations of ‘culpable negligence and lack of sense of responsibility,' etc., in the discharge of his duties, would, perhaps in the usual way, be clear and sufficient ground for an action for libel. In this case, however, the obvious difficulty of proving any ‘publication' and the probability that these communications and the occasions thereof would be held to be ‘privileged' rule out any such proceedings. The fact that there appears to be no evidence in the records to hand that such statements were warranted, would not be sufficient grounds to sustain an action for defamation in the circumstances.

In conclusion, I should point out that nothing that has occurred affects in any way your brother's position as a director of the company He is still entitled to notice of meetings, and in this connection, any deliberate omission to notify him of such meetings would, in my opinion, render the proceedings thereat invalid. He is entitled to arrears of salary up to such time as his employment as manager and secretary is properly terminated, which could be done by his co-directors at any board meeting.

I have dealt at some length with the matters upon which you have asked for my opinion and advice. If there should be any further points upon which you desire advice, or any matters in the foregoing which you would like to have clarified, I will be glad to be of any assistance.— Yours very truly, Darach Connolly."

As I told the House I got this on the 28th May. With the consent of Dr. MacCarvill I furnished copies to Dr. Ward and received from Dr. Ward the following reply:—

Further to my letter of even date-and following the most careful consideration of Dr. MacCarvill's allegations, I would urge that the whole matter be made the subject of a judicial inquiry with the least possible delay. The charges as to my conduct as Parliamentary Secretary in relation to the appointment of deputy medical officer of Monaghan Dispensary District are of a most serious nature and the fullest investigation becomes in the circumstances a matter of great urgency.

Pending the setting up of the tribunal and consideration of the report, I should be glad if the Government would permit me to abstain from the exercise of my functions as Parliamentary Secretary.—Yours sincerely (Signed) F.C. Ward.

Eamon Uas. de Valera,

An Taoiseach,

Baile Atha Cliath."

These are the matters and I do not think it would be right for me to make any comment of any kind. Having considered them, I felt the best thing in the public interest was to ask, as by this resolution I have asked, that a tribunal of inquiry should be set up under the Tribunal of Inquiry (Evidence) Act, 1921. I think that I should not say any more at this stage.

Mr. Douglas

I was present in the gallery of the other House when these letters were read and I imagine the feelings I had at the time are the feelings of probably every member of the House here, and that is that we are bound to recognise the extreme gravity of the letters which the Taoiseach has seen fit to read to Parliament. In fact I might say that as far as the internal political life of the country is concerned I cannot remember anything in the last 20 years or so during which I have been a member which I would regard as very much more serious.

It is extremely difficult to decide, and must have been extremely difficult for the Taoiseach to decide, what would have been the correct action. It would be equally difficult for us if we had individual responsibility—and of course in a sense we have individual responsibility—to decide what is the proper action when charges of this kind are made by a person who in the opinion of the Government is of such a responsible character that those charges must be read to Parliament.

I think it is extremely important for every member of this House and of the public to remember that we must not under any circumstances allow our minds to assume that the Deputy concerned is guilty of any one of the charges which have been made. It is extremely common when a case first comes before a lower court for the public to assume that many of the charges are being more or less proved, and sometimes the public do not read any more about it. It would seem to me that it is only right, especially coming from this side of the House, that one should emphasise, and I hope the newspapers in the interests not only of Deputy Dr. Ward, but in the interests of the good faith of all members to both Houses will emphasise, that the reading of these letters by the Taoiseach or the acceptance of the motion by either House does not assume that we even consider any single point has been proved.

Everyone, particularly those who have been in public life for some time, knows how ready a certain section of the public is to believe whispers and to accept doubts on the integrity of members. Whatever our Party affiliations or sympathies may be, and whether we have no Party affiliations, every single member is concerned with the good faith and integrity of public life and that is just as much the concern of any one Deputy as it is of anyone else. I think I may say it is as much the concern of an individual member as it is for the Taoiseach or the Government and that in anything we may say that must be borne in mind.

I understand that a vote was taken in the Dáil and that this motion was passed. That being the case, even if we have some doubts as to this being the best method, it would be a mistake for the Seanad to disagree, particularly as it concerns a Deputy. Therefore, I would recommend to the Seanad to agree to this motion. However, I would be glad if the Taoiseach, in replying, would answer one or two questions I would put to him, if it is possible to do so. They are questions which have been put to me since the debate took place in the Dáil to-day and questions on which the public would like some information which would add to confidence. Once this tribunal is set up, will the Attorney-General have any specific function in relation to it, in the interest of justice and in getting the true facts? We will assume that the Deputy will be represented by counsel or in whatever way he thinks fit and will be given every possible facility to defend himself; but in order that public confidence should be maintained, this being a matter of a public personage, I think the public would like to feel certain that there will be something to take the place of a prosecutor, so that the case for both sides will be before the court. I am not asking that in any critical way. I have assumed that, as it is Dr. MacCarvill who made the charges and as it is his letters and the letters of Mr. Connolly that are to be investigated, he will have full legal rights to appear before the tribunal.

I would also like to ask if it is intended that the judges appointed will be asked to leave their present duties, so that this matter may be dealt with immediately, or will it have to take its place in between the other legal matters they have to deal with? If I understood him correctly the Taoiseach said the desire was that it should be carried through as promptly as possible. In general, I would agree, but I would suggest that, if there is any appearance of haste or any suggestion at all of haste preventing any possible witnesses, the effect might be rather unfortunate. We all want the public to have the most absolute confidence in the tribunal. I do not think it is possible, by any method, to deal with a situation of this kind, in which somebody in the public will not say it is being manoeuvred. I am certainly making no such charge. I am speaking in this matter entirely for myself and not on behalf of any group, as this is a matter which concerns the honour of an individual and should not be a Party matter. I have some misgivings about the method adopted by the Government. At the same time, I do not think we should oppose it, since it has gone so far, since the letters have been made public and on account of the very serious nature of the subject matter of the letters.

Some of the charges, if proved—and I hope they will not be proved—would be of a criminal character. Others probably are not so, but would suggest matters which, to put it mildly, would leave an extremely bad taste, from a political point of view. To my mind, some of them are clearly related to the duties of the Deputy, either as a Deputy or as a Parliamentary Secretary; others are almost entirely coming within his private capacity, that is, if it is ever possible for a Deputy or a Senator completely to segregate his private capacity from his public duties—which, frankly, I doubt. On the whole, I think I would have preferred that, when a charge of this kind was made to the Executive of the day, they would consider it and, if they decided it was a criminal charge which must be taken seriously, they would hand it to the Attorney-General for investigation or, if they did not think it would be treated seriously, they would leave it to the Deputy with full power to have all the legal redress he was in a position to have. They would bring it before Parliament only after that action had been taken, or if the Deputy said that, for financial or other reasons, he was unable to take that action.

Until we have seen what happens in this case and until the matter can be considered without relation to a particular case, I think this should not be regarded as a precedent. I hope the Government, having decided on this tribunal, and both Houses, I expect, having agreed to it, special care will be taken that it is not regarded as a precedent. In other words, if a prominent member of a Party were to make serious charges against other members, whether Deputies or Parliamentary Secretaries, it should not be assumed that that would lead immediately to a public inquiry. I respectfully suggest to the Taoiseach to endorse that, in his opinion, it was not to be regarded as a precedent, until, perhaps through a joint committee of both Houses, at a later date and after this case has been dealt with and is no longer a personal matter, the question can be considered and agreement reached as to the normal procedure in somewhat similar circumstances. On the whole, the right course would be for the House to agree to the motion, without necessarily endorsing it, since it had to be and is the responsibility of the Government in the action they have decided to take.

Mr. Duffy

I regret to say that the proceedings suggested here are somewhat unusual. It occurs to me that the whole incident is very regrettable and is presented to us in a particularly distasteful fashion. We have a very prominent man, who occupied a very conspicuous place in public life, writing a letter, in May, 1946, dealing with incidents, some of them ten and 12 years old, and a letter carrying a kind of suspicion that they would have not been dealt with at all if it were not that his brother was involved. That does not reflect a lot of credit on the public responsibility of the writer of the letter. Next, there are very serious charges contained in these letters and I do not know if there is any element of privilege attaching to them. I do not profess to have any legal knowledge, but if there is no element of privilege, obviously Deputy Dr. Ward was presented with an opportunity to take an action in the manner he himself suggested.

The first letter he wrote on the 1st June indicated his own mind that this was a matter which should be tried in the ordinary courts, and I assume what he meant was that the action would be an action for libel against the writer of these letters, Dr. MacCarvill. He changed that attitude during the day, and he asked for a tribunal. I have grave doubts, and I do not take the same line as Senator Douglas for a variety of reasons, as to the setting up of a tribunal such as suggested, because we have had one experience in recent years of a tribunal set up to inquire into charges of a somewhat similar character.

If I remember rightly, that tribunal was hamstrung by the fact that there was no prosecutor to sift the evidence and to put questions on the evidence coming before the tribunal. I am referring now to the inquiry into the transfer of shares the property of the Great Southern Railways. Nobody appeared before that tribunal to represent the State or to collect the information to which the State had access, and submit it for the information and guidance of the tribunal.

I am very anxious to know whether if this House is to acquiesce in the setting up of this tribunal the tribunal will be in the same situation, having to seek evidence, having to set machinery in motion to find out if any of these allegations are true, or to unearth facts which may not easily be unearthed. When I heard the Taoiseach reading the first part of the correspondence in which there are allegations of serious criminal acts, it occurred to me that the Government in any other case would simply have handed over the documents to the Attorney-General who, in turn, would go to the superintendent of the Guards in Monaghan, Dublin or where the case arose, or to the Commissioner of the Guards and say: "Here are the allegations of defrauding the revenue, allegations of other kinds"—I am not speaking of breaches of professional etiquette—"the suggestion of criminal conduct." The ordinary course to follow would be for the Gárda authorities to take the action they are competent to take, and which normally they do take when allegations are brought to their notice. I think that was the most satisfactory method.

I do not think that the first method of taking a libel action would be a satisfactory method, although I think the proceedings should be taken by the Government, and I cannot understand why the Government has adopted this course of setting up a tribunal and asking the House to agree to its setting up without telling the House what are its functions, who is to assist in the production of evidence, who is to present it, does the Attorney-General come in, do the police come in, or is it a question of Dr. Ward going before the tribunal and saying there is no word of truth in it and it would be nobody's business to get the charges, get the proofs or examine witnesses.

As I said already, the Dáil having approved of the motion, it would be very unwise for us to take a contrary view. I think that is the sensible thing to do, while at the moment I say I do not feel happy about the method of what is being done, and I would like to get some assurance that this will be a bona fide investigation in the same way as a trial in a criminal court.

Mr. Sweetman

I want, first of all, to echo the statement of Senator Douglas that this is a matter of the utmost gravity and should be so treated, but it should be treated in an objective way in which there cannot be any suggestion by anyone that any person dealing with it is assuming that either one party or the other is correct in the denials made and the allegations made. But I do not think that the House, as a whole, appreciates and understands the exact procedure that is envisaged in the terms of the motion. I do not think the House appreciates and understands the methods that are adopted when a tribunal is set up in this fashion; and, in order, perhaps, that the House may exactly appreciate what is proposed, I would like to put to the Taoiseach certain definite questions. I would like, first, to inquire the number of persons that must form a tribunal under this Act. I would like, second, to inquire whether all those persons are necessarily judges, and if so, whether they are of the Supreme Court, the High Court, the Circuit Court or justices of the District Court, or what? I want, thirdly, to inquire as Senator Duffy inquired, whether the Attorney-General appears at such tribunal and puts a case before it? I would ask the Taoiseach also to make it clear whether the person, Dr. MacCarvill, who has laid the charge contained in the correspondence, has of right, the right to attend, and put such evidence as he wishes before the tribunal. I would like the Taoiseach, further, to lay it down, or to inform us rather, whether the tribunal, at the end of its deliberations will have the right, or will not have the right, to say that one side or the other was correct or incorrect and that, therefore, the State or one or other of the party should pay the substantial costs that will be incurred by appearing before such tribunal, and, in respect of that aspect, I do think it is unreasonable that the tribunal has not that right that an individual concerned would have to incur legal liabilities without being able to recoup himself. Apart from that, I think the Taoiseach should inform the House whether the Attorney-General has been consulted in regard to these matters and whether he has directed that in his opinion there is or is not any criminal offence charged.

If there is a criminal offence charged, then it appears to me that it is unfair on a person to have to appear before a tribunal and, possibly, to have to appear later before a criminal court when his second appearance will be prejudiced by what has transpired before the tribunal. Equally on the other side, I want to be quite clear whether anything that this tribunal may find, does or does not prejudice any action that may be taken subsequently in a civil court for libel which I presume also is the means suggested by Dr. Ward in his first letter. If the report of this tribunal does not interfere with the law of the land, would it not appear to be wrong that the functions of the ordinary courts would, so to speak, be prejudiced by what might be read and might be seen of the proceedings before the tribunal?

I suggest to the House that these are matters on which, even before there is any further discussion on the motion, it would be better if the Taoiseach were to make the procedure clear to the House so that the House as a whole may understand. Apart from members of the House who happen to have legal experience as barristers—because this is not a matter in which solicitors would be experienced —we have lay members of the House, and I would suggest it would be well that the House as a whole would be put in the position of knowing exactly what it was being asked to discuss in the terms of this motion. I make that suggestion to the Taoiseach through the Chair, that before we proceed further with the discussion that the procedure of the tribunal with which, I think, the Taoiseach assumes we are all completely familiar would be outlined by him in an authoritative way before we digress further in any shape or form.

Senator Ryan and Senator O'Dea rose.

The intention is to have three judges. I would like to say, in answer to some of the questions that were put, that the tribunal will have full powers of investigation. It will be composed of competent persons who will be able to weigh the evidence. The tribunal will have full power to compel the attendance of witnesses and the production of records. It will have all the powers of the High Court, so that I do not think there need be any question of misgivings about the matter.

I think I have dealt with the question as to why we are not proceeding by the ordinary court, and with the question of a libel action. I have also told Senator Sweetman that the tribunal will consist of three judges. I also mentioned that the Attorney-General will not be appearing as such as prosecutor. That, obviously, would not be right either. We are not taking action in the way of a prosecution. These are charges which are to be investigated. These charges have been made, and there can be an impartial investigation of them without any prima facie case being accepted by the State. If, of course, it should appear that there was any reason why action should be taken in the ordinary way it would be taken as a matter of course. It is one of the difficulties, undoubtedly, that the findings of this tribunal will have a certain prejudicing effect on any subsequent action. I cannot avoid that, and I do not see any way out of it.

As regards the question of libel, there may be some prejudice but, after all, those who will have conducted the investigation, in the first instance, will be regarded as a competent court. It was suggested in the Dáil to-day that, if this matter did come to be considered by a jury in a libel action, the jurors would be prejudiced by the findings of this investigating tribunal. I am afraid that I cannot help that. So far as the allegations are concerned which might be regarded as coming within the code which would be pursued by the Attorney-General, there is no doubt that there would be a certain prejudicing to the extent to which weight would be attached to the findings of this tribunal. Again, I am afraid that that is inevitable and I cannot help it. As regards the question of those who will have the right to appear before the tribunal, I cannot imagine an investigating tribunal of competent judges conducting this investigation without giving Dr. MacCarvill and Dr. Ward the right to appear. I imagine that they would summon them before them. I was asked a difficult question as regards costs, a question of tremendous importance from the point of view of the individuals. I should like to see law much cheaper in this country but I think the present position under the Act is that the State bears the expenses of the tribunal, as such, but that individuals who are represented before the tribunal bear the cost of that representation.

Mr. Baxter

Chair.

An Cathaoirleach

Senator Sweetman.

Mr. Sweetman

I am afraid that Senator Ryan did not understand what I said. I want to thank the Taoiseach for having answered the questions I put to him. In the few questions I put, I tried to treat this matter in an entirely objective way, apart altogether from politics. I am not as familiar with the procedure, and I do not think that other members are as familiar with the procedure, as Senator Ryan or a few other members who had an opportunity of looking into it. The Taoiseach said, in reply to the last question I put, that the tribunal had no power to direct that the costs of any party should be paid by another party. I think something should be done to meet that situation. I think that the Taoiseach would agree that this is an investigation which might take a considerable time. The cost of it to any party might be very substantial. I think that it should be agreed that, if the tribunal is satisfied that any party by appearing before it has been of assistance to it, that party should have his costs met. If they cannot be met in the way I indicated, they should be met by the State. So that it will be in that way clear that a person going before that tribunal, from any point of view will not be incurring a liability by so doing and will not be at the end of the investigation out of pocket in a way that I suggest would be unfair to him. I would suggest that it should be left to the tribunal to decide whether the submission of the person concerned had been of assistance or had not and, if the tribunal decided that the submission was of assistance, I think the man concerned should not be out of pocket in regard to it.

I am afraid that I do not subscribe to the Taoiseach's point of view that this is the best method of dealing with the matter. I would have preferred that that matter would have been dealt with by the courts in the ordinary way but I take the view indicated by Senator Douglas that, as a decision has been taken in the other House, it would be wrong for this House to try in any way to vary that decision. Therefore I am concerned purely to ensure that the method that it has been decided to adopt shall be adopted in the best manner possible and with all the facilities necessary for that method. I assume of course that the tribunal considering this matter will deal with it in public. I assume that the tribunal, under the powers the Taoiseach indicated, will have the right to call any person or any Government Department. I take it he meant the word "person" to cover also all Government Departments, including the Guards, if the tribunal so determine. Finally, having regard particularly to the very great gravity of the whole question, having regard to the fact that a tribunal, not a court, is being set up, I would urge very strongly on the Taoiseach that the tribunal should consist of three persons who are not below the rank of Supreme Court judge or a High Court judge— in other words, that they should be taken from the Supreme Court and the High Court, even if it does mean that there is going to be delay and inconvenience for ordinary litigants. The matter is of such gravity that it should be dealt with by judges of that seniority.

Mr. Ryan

A great deal of time would have been saved if Senator Sweetman and other speakers had read the Act of Parliament under which this tribunal is being set up. That Act of Parliament is the Tribunal of Inquiry (Evidence) Act, 1921, 11 George V., Chapter VII. as adapted by two Orders, one made in 1930, and the other made in 1936 and also as adapted by Section 4 of the Constitution (Consequential Provisions) Act, 1937.

The Act under which the tribunal is set up consists of two sections, and Senator Sweetman would find in that Act answers to at least three-fourths of the questions he asked the Taoiseach. The Taoiseach is here as the Minister who, under that Act, will appoint a tribunal, but he cannot appoint a tribunal unless resolutions have been passed by both Houses of the Oireachtas. It is not in every case that the two Houses of the Oireachtas will pass resolutions under this Act. A Minister can only set up a tribunal in certain cases, having seen that the resolutions passed by each House of the Oireachtas contains, as the Act provides, the statement

"that it is expedient that a tribunal be established for inquiring into a definite matter, described in the resolution as of urgent public importance".

That is the justification for the passing of a resolution by both Houses of the Oireachtas setting up this tribunal.

The Act provides that the tribunal has to be appointed for the purpose by a Minister—in the Act, of course, it is the Secretary of State, but that has been adapted. The instrument under which the tribunal is appointed will provide that this Act is to apply. When the instrument under which the tribunal is set up by the Minister—in this case, I presume, the Taoiseach— contains that provision, then the Act provides that the tribunal

"shall have all such powers, rights and privileges as are vested in the High Court on the occasion of an action, in respect of the following matters:—

(a) the enforcing the attendance of witnesses and examining them on oath, affirmation or otherwise;

(b) the compelling the production of documents, and

The Act also provides for the punishment of persons who are summoned as witnesses and who refuse to attend. Section 2 of the Act provides as follows:—

"A tribunal to which this Act is so applied as foresaid:—

(a) shall not refuse to allow the public or any portion of the public to be present at any of the proceedings of the tribunal unless in the opinion of the tribunal it is in the public interest expedient so to do for reasons connected with the subject matter of the inquiry or the nature of the evidence to be given, and

(b) shall have power to authorise the representation before them of any person appearing to them to be interested by counsel or solicitor or otherwise, or to refuse to allow such representation."

Sub-section (3) of Section 1 provides that a witness before any such tribunal shall be entitled to the same immunities and privileges, as if he were a witness before the High Court. If the two Houses of the Oireachtas consider it expedient in the circumstances to set up this tribunal, then such tribunal will be appointed by a Minister under an instrument. Now, of course, the personnel of the tribunal is a matter for the Minister—in this case the Taoiseach—but after the Taoiseach has set up the tribunal the powers and functions of that tribunal are governed solely by the Act of Parliament. Therefore a number of the questions which were asked of the Taoiseach here were, if I may say so, rather misdirected because the Taoiseach cannot, in other words, prescribe the powers and functions of the tribunal. These powers are prescribed by law.

The question of cost has been raised. This Act provides that the tribunal shall be established for the purpose of inquiring into some matter that is of urgent public importance. That tribunal is an inquiry tribunal and it, so to speak, has to get to the root of the matter that is being inquired into. For that purpose, it is a tribunal with powers to compel witnesses to attend, to call for documents and to authorise the representation before it of any person who, the tribunal considers, appears to be interested. Now there is no provision in the Act for the payment of costs and the tribunal will not in itself have any power to award costs. The function of the tribunal will be to make a report to the Minister by whom it was set up. For the purpose of making that report it must necessarily have before it the parties who are interested in the matter that is being inquired into and, therefore, in my view, if the parties appearing before the tribunal are to be allowed their costs, or are to be reimbursed in respect of costs, then it would be almost necessary to bring in a special Act of Parliament. I think so at any rate but there may be powers under some other Act to entitle a tribunal of this kind to award costs. I am not clear on that point.

I think that whether this tribunal is the appropriate form of inquiry into the matters raised in those letters is a matter for the Oireachtas because of course the two Houses must be agreed and must act in unison before this inquiry can be set up. The mere fact that the resolution has been passed by one House will not authorise the Minister to inquire into the particular matter which has been raised and, therefore, if the two Houses of the Oireachtas pass this resolution it will, I submit, be an endorsement of the view that this tribunal is the most appropriate means of investigating the matters that have been raised in the letters read here this evening.

The Houses of the Oireachtas do not move often, and it is only in a case where the question involves a matter of public importance that such a resolution as this is passed by both Houses of the Oireachtas and that a tribunal should be appointed to inquire into these matters.

Mr. Hayes

I agree with the Taoiseach that this matter, no matter how one looks at it, is unsatisfactory, and we can well imagine that in the short time at his disposal since the matter came to his notice in the letter from Dr. MacCarvill, a considerable number of difficulties presented themselves to him. He has taken the decision to put the matter before a tribunal of the character which Senator Ryan has just described. Might I point out to Senator Ryan, however, that there is nothing in the motion which appears on to-day's Order Paper to indicate that the tribunal is being appointed under the Tribunals of Inquiry (Evidence) Act, 1921, although from a certain amount of experience that I have had myself I came to that conclusion by looking at the motion? It is easy for Senator Ryan who was able to spend the afternoon, I suspect, looking at this particular Act to say to Senator Sweetman who spent his time in the House discussing the Tourist Bill, that he did not attempt to read the Act.

Now, there is nothing very remarkable in what Senator Ryan said about the provisions of that Act. The matter was brought to the notice of members of both Houses by this Order Paper. I did not in fact get an Order Paper at 9 o'clock, but the Leaders of the Parties in the Dáil were summoned to the Taoiseach's office at, I think, 12 o'clock, and they were told of this particular matter, that the letters would be read and that a motion would be made to set up a tribunal which would be of a judicial character. But the letters were not disclosed to them and they were not, therefore, in a position to determine what particular kind of tribunal would be best to investigate the charges set out in these letters. I asked Senator Douglas to go to the Dáil this afternoon to see what the whole thing was like, and when I hear the matter now for the first time myself I find great difficulty in making up my mind as to what the proper procedure should be.

In the first place, there is a general tendency in legislation to oust the jurisdiction of the ordinary courts, and there can be no doubt that from the point of view of the ordinary citizen seeking for justice the best method is the ordinary courts. I take that to apply not only to a member of the public but to a member of the Dáil or Seanad, a Parliamentary Secretary or a member of the Government. I agree at once there may be special difficulties and in this particular case there are special difficulties. Listening attentively to the Taoiseach reading these letters, there appears to me to be a regular medley of charges of a different character and this tribunal will have to sift the different kinds of charges it is to investigate. In the first place, there is, I gather, a criminal charge in the evasion of income-tax. In the second place, there is a civil matter where the brother of the writer of the letter, or, at least, his solicitor, takes the view that he has been wrongly dismissed. That is a civil matter. As well as that, there is a professional matter in relation to the appointment of a substitute, if that is a purely professional matter, and further to that there is, I think, the idea that the Parliamentary Secretary's political, Parliamentary and Governmental positions were used for the furtherance of his personal ends. It seems to me that it would be difficult for the three judges whom the Taoiseach is endeavouring to get—I admit at once he is quite bona fide in trying to get the best people for the tribunal—to deal with all these matters. They will have a difficult task, because they will have charges of different kinds to deal with, and they will be in a different position altogether from the tribunal to which Senator Duffy alluded.

I agree with Senator Douglas that we must not get into the position to which many people are wont to get into, of thinking that charges once made have been proved. We must remember that this tribunal will be in a different position from that of the ordinary courts. I think the Parliamentary Secretary's first reaction to the whole business was perhaps the correct one, that is that he should be entitled to take an action for libel, bring the matter before the courts in that way, and it would be for the court to disentangle this matter, as they thought best, in accordance with the procedure which I take it has been laid down for a very long period of years. In this particular instance there are several charges, one greatly different from the others. If the charge of the evasion of income-tax were made against me or against Patrick Murphy out in the street the whole machinery of State would be brought to bear upon it, in collecting evidence from witnesses and in the sifting of documents, and the Attorney-General and the best counsel the Revenue Commissioners could get would all be made available to prove that Patrick Murphy did in fact evade income-tax.

If I understand this matter correctly, when this is brought before this particular court there will be no prosecutor and the police will not be used for the collecting of evidence. That would appear to me to make a very great difference between a person put before this tribunal, a person who is prosecuting and another person who is there in the absence of a prosecutor. The State will prosecute in the ordinary way if it seemed to the Attorney-General there was prima facie evidence that there had been evasion of income-tax.

In this particular case, unless the person who makes the charge, Dr. MacCarvill, is prepared to brief counsel at very considerable expense, I do not know how the charge can be proceeded with at all. It is quite extraordinary to suggest that any tribunal of this kind, constituted under the Tribunals of Inquiry (Evidence) Act, 1921, should be asked to decide a purely civil matter. I think the lawyers would agree with me in that. It would be quite unprecedented if this tribunal were asked to decide whether there were grounds for the dismissal of Mr. MacCarvill from his position as secretary and manager of this particular bacon company. That would be giving it a new job.

The Taoiseach argued that the matter was one which should not brook delay, but surely the procedure set out here will not hasten matters. In the ordinary way, if I am charged with evading income-tax or with any other ordinary crime, the evidence would go to the Attorney-General or someone acting on his behalf and the matter would go before a court of first instance. Is not this court, which is to be composed of a judge of the Supreme Court and two Circuit Court judges, really a court of first instance? I think it is. It is a very remarkable position for a Supreme Court judge to be in. If he finds there is prima facie evidence that there has been evasion of income-tax, presumably a prosecution must take place in the ordinary way. I do not profess to be as skilled as Senator Ryan in this matter of procedure, but surely that is the position? Where is the advantage, therefore, of this particular court? If, on the other hand, the court finds that there is no evidence at all to support that, then, with a great amount of publicity and at very considerable expense, something will have been done which the Attorney-General ordinarily does or which a very much lower court would do in the ordinary way.

The same thing appears to me to apply to a civil action. I take it that nothing happening now under this resolution will prevent Mr. MacCarvill, the person who was secretary to the bacon company, no matter what this tribunal decides, from having the right to proceed for unlawful dismissal.

The Taoiseach

I would say that that is correct.

Mr. M. Hayes

In the ordinary way, those proceedings would then drag out in the ordinary courts. No matter what the tribunal decides, presumably the Parliamentary Secretary would still have the right to take an action for libel, as I assume the publication of this matter is not privileged—and I feel it would be very inequitable, if not illegal, if it were privileged. Such an action for libel would carry on for a very long time and, in the meantime, the Taoiseach will be no better off than he is now with regard to getting the work of the Department of Local Government done. I see no advantage at all in this particular method.

There is another point about this kind of tribunal. I was speaking recently to a Circuit judge who had been a member of the Dáil. He told me he found it was easier to do the work of a Circuit judge than the work of a Deputy, as he had far less correspondence. I have heard judges, some of whom I know, say: "The facts are put up to you in the court." Lawyers like Senators Ryan and Kingsmill Moore put up the facts and state the law and the judges do not have to do anything. Judges as an investigating tribunal—I hope I am not being disrespectful in saying so—are just no use. The whole notion of asking a judge to investigate a charge by himself is like asking a doctor to make a suit of clothes, as it is something completely outside his ordinary functions. The judge's function, under our system, which is the British system, is to sit on the bench and show great care, courtesy and patience in hearing the cases, to prove fair to the police and to the witnesses, to hear the evidence of the facts brought before the court at great length by examination, cross-examination and re-examination of witnesses. There is the presentation of points of law. The judge can ask, and I understand frequently does ask, for examples of precedent and there are people there paid to go into that matter. This particular tribunal will have none of those advantages. I think the lawyers would agree with me on that. There will be nobody to put the facts to it and nobody to put the law to it, yet it is being asked to investigate and sift matters in which both law and fact are inextricably mingled, as well as what one might call political or Ministerial etiquette, which is a different matter, on which possibly a judge also is not very competent to decide.

While I understand the Taoiseach's desire—and that is, of course, the desire of the head of any Government and is not a personal matter—that when a Parliamentary Secretary or Minister is charged, the matter would be disposed of as soon as possible, so that the work may go on, I suggest that this procedure does not effect that end at all. The matter is one which is bound to take some time and any attempt to take a short cut by appointing a special tribunal will not accomplish that end. It would be much better to let the ordinary courts operate in the ordinary way.

There is another point, that the tribunal has no power to award costs. Since the Taoiseach has made up his mind on this matter, and since the Dáil has decided to accept this tribunal, I see no good purpose to be served by our endeavouring to defeat this motion. Assuming it is going to be passed, while we have merely the knowledge we get at first blush by hearing the documents read, I think the question of costs is one that should be decided. The tribunal has no power to award costs compulsorily, as the High Court has. The tribunal has power to make a report to the Minister and to state it thinks that particular costs should be paid. If the tribunal were making that report, I am perfectly certain that the Taoiseach or anyone else would at once agree to pay those costs and the Dáil would feel bound to agree to a Supplementary Estimate for that purpose. The tribunal, however, only makes that as a recommendation and has no legal power to assess costs.

There is one other point, mentioned by Senator Douglas, with which I would like to deal. It seems to me that, when all this is out of the way and there is no specific case before us, we should have a discussion on the question of the procedure which should be adopted in regard to any charges made against members of the Oireachtas, whether Deputies or Senators, and I think we should have, further, a joint committee to decide what steps should be taken to prevent Deputies and Senators themselves from making charges against persons who are not members of the Oireachtas. We had several very glaring cases of that kind of thing, of charges made, and quite recently, a Minister speaking from his place in the Dáil, delivered a judgment which might normally be delivered in court.

The question of a tribunal for X, but no tribunal for Y, and the ordinary courts for somebody else, and the Minister pronouncing about some other person is all quite wrong. To conclude on this matter, in the way in which it was done and the Dáil having decided it, I think we have no option but to decide on allowing the matter to go to this tribunal. I do not think it will be settled rapidly by this tribunal, and the argument that the ordinary courts are not being used for the purpose of getting a quick decision is not a sound argument. The various steps that must be taken when this matter comes to be teased out will prove to be lengthy ones. However, Sir, the decision has been taken and there is nothing we can do to avoid it. Therefore, I would not divide the House against the motion.

Sir John Keane

Senator Douglas, in his opening remarks, referred to the responsibility that rests upon each Senator in the matter of recognising fully and realising his personal responsibility. I fully realise my personal responsibility. I am in very considerable sympathy with the Taoiseach in the decision he had to take at short notice in this matter, but I am sorry to say that I feel that he has made a very unwise decision.

Let us examine this in its salient aspect. Criminal allegations are made against a citizen. In ordinary course, I think the Taoiseach admitted that papers would follow the usual line of going to the Attorney-General, and if adequate evidence was forthcoming a criminal prosecution would follow. What has been done in this case? The Taoiseach says that that course would not be a wise or prudent one to follow on account of the position of the Parliamentary Secretary. What does that amount to? There is one law for certain sections of citizens and another law for others, and I am afraid that is the way the public will take it—one law for the rich and another for the poor.

I am afraid by our decision that there is to be one law for people in certain Government positions and another law for the remainder of the citizens. That is most unfortunate. Where is this discrimination to stop? The Parliamentary Secretary is having this discrimination exercised in his favour. Would a Senator or Deputy be dealt with similarly? If that was so, it would be most unfortunate.

When criminal charges are made, criminal charges should follow, irrespective of the position the person occupies. He should be treated as a citizen and therefore I think the decision as made is unwise. It will be passed, I know, but I personally cannot support the motion.

Mr. Crosbie

I feel that while we must view this regrettable matter as objectively as possible, at the same time, I do think we must also look upon it as realists. For that reason, I am in entire agreement with Senator Sir John Keane and in my opinion a most regrettable and very hasty decision was taken by the other House to-day. Senator Douglas has pointed out that there is always a tendency, particularly where public men are concerned, that when a charge is made, there are thoughtless people who consider the very fact that the making of a charge denotes guilt. Smoke and extra-camouflage can be added, and these people who are not really evil-minded so much as ignorant will feel that by the very fact that in this case, instead of letting the common law take its course, the Oireachtas is giving what the man in the street will regard as special protection to one of its members by setting up a special tribunal of investigation.

I can sympathise with the Taoiseach in the decision he took. I can sympathise with his desire in this matter to have it cleared up one way or the other as hastily as possible, but I do feel that it is a great pity that there is an ever increasing tendency in this country to override the ordinary civil courts.

In normal circumstances should anyone except a Parliamentary Secretary be involved in a case like this, there would probably be two actions that would take place, an action for libel before a judge of the High Court and a jury of his fellow citizens, or as a result of the investigations of the Attorney-General and police, there would be a trial before a judge and jury in the Central Criminal Court.

I feel that in the interests of Dr. Ward and of public men and public life generally, a very unwise decision has been taken in setting up this tribunal rather than leaving the case to the ordinary courts, and I have great doubt whether the Taoiseach will succeed in getting a decision from this tribunal in which case he will not only leave the Government, but this man who has had this attack made on him in a more unfortunate position than at the present time.

Mr. O'Dea

I do not like to enter into this discussion at all because the man who has made the complaint and the man against whom the complaint has been made are both friends of mine, and the only reason I do speak is because of the speeches that have been made by certain members of this House. I thought that when it would be mentioned here that the Dáil had passed a resolution asking that this inquiry should be set up that this House would without any discussion come to the same conclusion that we would have united action and the motion would be passed without a word on either side.

Certain members have thought it advisable to get up, and while they deprecated the idea that certain people imagine a charge is proved once it is made, they themselves have by their statements shown that they have fallen into the same mistake and they allege that something is done to hide a particular person. What are the facts? Does the fact of setting up this inquiry prevent any other proceedings good, bad or indifferent? It does not. Does it delay those proceedings? It does not.

Any proceeding that can be taken can be taken whether the inquiry is set up or whether it is not set up. The man charged has asked for the inquiry. Senators know how an inquiry is held. We had the inquiry that was set up to inquire into the purchase of shares in Córas Iompair Éireann. The judges who presided at that inquiry brought every person before them that ever uttered a whisper about wrong dealings in those shares. Members of the Dáil were brought there, and were asked about certain statements that they had made in the Dáil. They were asked if they had any evidence to support the statements they had made. Some of them cut a very sorry figure, and had to say that they had not a particle of evidence to support the statements they had made. They heard whisperings going around and because of that they solemnly made statements in the Dáil as if they were facts, and some people did accept them as facts until the investigation was held.

Senator Duffy said that that investigation broke down. It did not break down. That tribunal investigated every little-tattle that ever was suggested. There was never a more searching inquiry than that inquiry. The tribunal got a list of the shares that were purchased, they brought before them every person who had purchased those shares and they brought before them the stockbrokers who acted for the purchasers. They asked them if they had got any special information from anybody connected with the directorate of Córas Iompair Éireann, and found that they had not. Now, the man that asks for an inquiry is asking for the most searching investigation that ever can be made into his character and conduct. Nothing is to be hidden. No other proceedings are to be held up, and no special privilege is being attached to him more than to any other person. I think it is very wrong to suggest that there was. I thought that this motion would have been passed without any discussion.

Mr. McGee

I happen to know both gentlemen in this matter, and I am rather surprised that their training did not prompt them to write to some other person than the Taoiseach. If it were my case I would have gone to a lawyer and in that way would have saved this House from wasting its time. We all have our common rights, and we have been listening to the happenings that have taken place in the last 16 years, especially in my county. I think that the ordinary law should not be interfered with. I know that if it were my case I would not look pleasantly on having my case and myself discussed before the Seanad as this case has been discussed here this evening. I would prefer the ordinary law. I think that Dr. MacCarvill could very well have taken this action in connection with Dr. Ward in the courts instead of delaying us in doing our business here this evening.

Mr. Patrick O'Reilly

I do not intend to delay this House very long. I think it is a grand thing that this matter has been discussed with such restraint. I do not know in what way it was discussed in the other House. Some Senators appear to be worried as to whether this matter should be disposed of by action in the courts or under the tribunal it is proposed to set up. This matter has been brought to light by the correspondence which the Taoiseach read here this evening. It seems to me that if it were to be dealt with in the courts that the principal witness would be the Taoiseach. I do not think that could be regarded as a happy state of affairs—that a position would arise in which the Taoiseach would have to go into court as a witness in a case of this sort. I do not agree with Senator McGee that charges of this sort are not of such importance as to warrant a discussion in this House.

It is because of the fact that the Parliamentary Secretary is a Parliamentary Secretary that these matters were brought to the notice of the Taoiseach. In consequence of that he has come to the Dáil and the Seanad to ask the two Houses to set up this inquiry. I think it is a healthy thing that an inquiry of this kind should take place to establish how far there is any substance in those charges. Suppose the Taoiseach had to take the view that this was a very disquieting matter, that it was not a matter he would like to go before the public and suppose then, as he would have the right to do, I think, he asked the Parliamentary Secretary to relinquish his office, and then probably asked him not to stand as a Fianna Fáil candidate, a position would be created in which that unfortunate man would find that he had no redress. That would give an opportunity to people to start a whispering campaign which is the most dangerous form of destruction that one could think of. For these reasons, I think it is proper that an inquiry should be held, and that this thing should be gone into as far as it is humanly possible to go into it.

Senator Hayes suggested that judges are probably the worst people to hold this inquiry. I cannot take that view. Suppose you do not get judges, who are you going to get? I do not think it would be desirable to have this matter inquired into by a Joint Committee of the Dáil and Seanad. I would not regard that as satisfactory. After all judges, apart from the suggestion that has been made that they are guided by precedent, and by the arguments put before them by lawyers in coming to their decisions, are, we must admit, men of commonsense, and that in a matter of this kind, when they come to examine fact after fact, they will use their commonsense. Because of their training, they will know how to get the material evidence that they will need to enable them to make up their minds. In any case, I agree with Senator Sweetman that the members of the tribunal should be judges of the Supreme Court, the High Court and the Circuit Court.

Mr. Tunney

Does the Senator wish to say that the judges are going to be prosecutors?

Mr. Patrick O'Reilly

No.

Mr. Tunney

Then what you have been saying is nonsense.

Mr. Patrick O'Reilly

The members of this tribunal will have all the power they require to call evidence on the matters that they are to inquire into. They will have brought before them all the facts that they consider relevant to the charges that are being made. I think that should satisfy Senator Tunney. In my opinion, the members of the tribunal should be judges of the Supreme Court and of the High Court if it is possible to get them.

Mr. Baxter

I face with very considerable displeasure the fact that I am called upon to consider this matter here. Perhaps the fact that I dislike at any time being brought into my neighbours' quarrels and especially family quarrels, may be a consideration that I find it difficult to eliminate from my mind at the moment.

The experience of the Taoiseach in connection with this proposition will be such as to cause him to regret that he adopted this procedure. He will discover that what Senator Hayes has indicated will turn out to be perfectly true. So far as anybody can judge from the material placed before the House this afternoon, we shall have two long-drawn-out trials. There is no use in pretending that, after this fact-finding body has sat and made a report to the Government, anybody will be satisfied, if further proceedings are initiated in the courts. Until they hear the end of the story, judgment will remain in abeyance. I think that it would have been much better if the courts of justice had been accepted as the medium by which this matter would be examined and judgment passed upon it. There are, it is true, various methods of arriving at the truth. There is this tribunal method. That is a court to find facts. Then, there are the law courts. But there is another way, too.

I am some what puzzled to know the considerations which weighed with the Taoiseach in asking the Oireachtas to take the decision which he now seeks. Only a few weeks ago in the other House—I am not referring to last week —a motion was introduced concerning the conduct of a member of the House. The matter was one on which a number of members of the House seemed to have considerable misgiving. It had relation to statements sworn in court. A demand was made to the Taoiseach to set up a body to inquire into certain things and the Taoiseach decided that there was no necessity to do so. He told the House that he himself had inquired into the matter and had taken a decision. That was a matter which the public had communicated to them through the Press. This matter is entirely different. The public and the Oireachtas heard of this matter for the first time from the lips of the Taoiseach himself this afternoon. I see no reason whatever for the procedure adopted by the Taoiseach, nor am I prepared to accept the contention that, because certain charges were made against the Parliamentary Secretary, rendering it impossible for him to discharge the duties of his office, the urgency of the work to be done there demanded that the matter be settled quickly. I see no difficulty whatever in a certain reorganisation within the Department which would have made it possible for the work to go on. Only quite recently a Parliamentary Secretary had been added to that Department, and the country would have survived and its health services would not have appreciably deteriorated if certain problems had stood in abeyance until this matter was settled. I do not agree that there was the least urgency.

From the point of view of the people involved in this grave and serious matter, from the point of view of the credit and honour of every member of the Oireachtas—and these happenings give countenance to the things bandied about here and there— I think it would have been much better to proceed by way of the ordinary courts which every citizen has open to him if charges are made against him which he regards as unfair or unjust. I am quite satisfied that this fact-finding tribunal will settle very little. The Taoiseach will find, even in so far as he is concerned, that the matter will not have ended when the facts are submitted to him by this tribunal. There will be two long and expensive trials. It would be much better, from the standpoint of justice and truth, to have the matter dealt with in the courts. If it were possible for this tribunal to assign counsel to the people who would be regarded as prosecutors and pay their fees, that would, at least, convince everybody that opportunities were afforded by the tribunal to hear both sides. Of course, facilities would also be afforded to the other parties concerned to have all the facts fully and completely examined.

When this investigation ends, it may be alleged, as was alleged against another tribunal this afternoon by a member of the House, that it collapsed because all the facts could not be adduced or because, as many people have said, there was no prosecuting counsel to bring out the many points which a tribunal should have illustrated for it in order to fact-find truly. I am rather in the position of Senator Sir John Keane in connection with this matter. I think that the procedure is wrong. Whether it be a case of a Deputy, a Senator, a Parliamentary Secretary, or a Minister, it would be far better to let the ordinary courts adjudicate. Criminal allegations have been made in this case. The tribunal cannot punish, so that the problem is still unsolved. When you have such a position as that, I am convinced that the Taoiseach would serve the ends he is endeavouring to serve in a much more satisfactory way and in a way which would be more to the credit of the members of the Oireachtas and of our parliamentary institutions, by making it possible for men to solve their difficulties through the courts rather than by the employment of tribunals which have very limited powers and no power of punishment. I should like to know from the Taoiseach if the members of this tribunal can decide that the proceedings, or portion of the proceedings, may be held in secret. I think that that did take place in the case of the tribunal which dealt with the railway shares. Whatever other members of the House may feel, I have no doubt that this is a very unsatisfactory way to proceed to do what the Taoiseach says he wants to achieve.

Mr. Summerfield

In the speeches we have heard for the last two hours and 20 minutes, I feel that Senators have really shirked the two main points. Surely more emphasis should have been placed on the thing that is concerning the Taoiseach and that should concern anybody who has got any feelings at all. The honour and the integrity of a public representative are at stake and the sooner the charges that are made against that honour and integrity are either proved or disproved the better for everybody concerned. How much emphasis has been placed on that aspect? Instead of that we have had a variety of speeches that have gone round the subject and dealt with a number of extraneous matters —dealt with things that have nothing at all to do with the matter which we are called upon to consider. Speakers have not adverted to the honour of the man impugned and the fact that he is a junior member of the Government. That in itself provides a reason why the Government should ask us to adopt the procedure the Taoiseach has suggested to the House.

The Government is concerned, as we heard and rightly heard, from Senator Douglas with this matter. It is only proper that we also should be concerned with any charge of this kind whether it be a definite charge of the type we are dealing with or the more malicious slanderous whisper which the country is all too ready to listen to, when public men are concerned. If we have got any respect for our public men and our public institutions, we must at once take the readiest means available to investigate these charges. The Taoiseach has said that considering the various means that are available, in his judgment and the judgment of his Government, this procedure of an inquiry by a tribunal is the readiest and the quickest method of getting this foul thing dealt with. It is foul whichever way it goes. If the charges are proved they are foul; if they are disproved they are doubly foul. I am not going to make a long speech at this hour of the evening but I have been very much concerned at the trend of the speeches to which we have listened. Why other tribunals should have been brought in, I do not know. If there was any apparent failure in the tribunal to which we have heard so much reference—the Córas Iompair Éireann Tribunal—was it not due to lack of moral courage on the part of certain people? When they were asked to prove the charges they ran away from their responsibility. Let us have nothing of that kind in this case. It is said again that this tribunal has no power to punish. Its most important function is to investigate the truth or falsity of these terribly serious charges which are contained in the letters which have been read to the House.

Mr. Foran

There does not seem to be any desire to hear other speakers in the House and I hope we shall conclude the debate now. We have wasted a whole evening. My conclusion, after listening to all the speeches, is that the correspondence was sent to the wrong man. It should have fallen into the hands of the Opposition to the Government; they could have made a good deal more capital of it if it went that way. That is the impression created on me after listening the whole evening to the speeches. Comparisons have been made between the railways investigation and the tribunal proposed in this case. There is no analogy whatever between them. In this case the charges are very definite, in writing. In the railways case they were allegations by word of mouth and no one was responsible for them. A responsible citizen has made an allegation here containing very definite and serious charges. These charges were sent to the Taoiseach. Supposing he were to shelve his responsibility and put the matter on the long finger, the Dáil would not be so ready to debate the motion which it adopted to-day nor would certain people in this House. The Dáil has adopted this motion and we are not going to alter it. Therefore, what is the point in carrying on this discussion at such great length?

I have every confidence that this tribunal will sift this matter because their job is very simple. It does not require a lot of eloquent and very able lawyers; the charges are set out there definitely. The prosecutor will have to produce his evidence to prove them. That is a simple job and he knows all about it. The defendant will have his opportunity of refuting the evidence brought before the tribunal. That is a simple procedure. The report of the tribunal will be available for the whole community. Some people are very concerned about the expense and the cost. I do not think it need be very costly. I do not think the investigation need occupy, as Senator Baxter said, months and months. I do not think it will take very long to inquire into the matter. We shall have their findings in a very short time. All I want to do is to appeal to the House to cut the cackle and get on with the work.

Mr. P.J. O'Reilly

I should like to say, in the first place, that I think the House admires the courage of the Taoiseach in bringing the correspondence before us. Personally, if I were in his position, I would have taken a somewhat different course. The Taoiseach is concerned mainly with the reputation of the Parliamentary Secretary as such and the allegations that affect him as Parliamentary Secretary. They seem to be concerned with two charges. One is the alleged evasion of income-tax and the other is the manner in which he discharged his functions as deputy for the Minister for Local Government in connection with the appointment held by himself. These, I think, are the only two allegations that the Taoiseach might be concerned with. I personally would have investigated these things privately without saying one word to anybody. I would say to Dr. Ward: "We have evidence that you appear to be guilty of certain acts" and I would give Dr. Ward an opportunity privately, either of admitting the fact that he was guilty, or of producing counter-evidence to show that he was not guilty. I think that that investigation could have been completed in a couple of hours with the Departmental resources available. If the Taoiseach was satisfied that Dr. Ward was not guilty he could have stood publicly and privately over the Parliamentary Secretary and let things rip—in other words, let such proceedings as might take place go ahead. The Taoiseach, if satisfied that he was not guilty, would feel that in the end things would come right and his policy would have been vindicated.

I am concerned with one difficulty that arises. Reference has been made to the absence of a prosecutor in connection with the inquiry in reference to Córas Iompair Éireann, and some preceding inquiries. Supposing this consideration is taken into account. It seems to be assumed that no matter which way the inquiry goes, legal proceedings will result. Supposing Dr. MacCarvill or his brother is advised that it would be dangerous for him to take part in this inquiry, and that he proposes to initiate other proceedings, who decides that he would have to appear at this inquiry? Perhaps the lawyers present or the Taoiseach in his reply would inform the House what will then be the position. There would definitely be no prosecutor in that case. If Dr. MacCarvill or his brother decides to take part in the inquiry, he is incurring a certain amount of danger.

He is also likely to incur a double set of expenses. We are told there is no provision for the payment of expenses and the lawyers present have assured us that there is nothing to prevent legal proceedings going ahead concurrently with this inquiry. In that case, then, it does seem a risk for Dr. MacCarvill to appear there at all. Can Dr. MacCarvill be compelled to give evidence and if he is going to give evidence at the inquiry may not that prejudice him when he appears before an ordinary court afterwards?

These are matters which the Taoiseach might deal with when he comes to reply. I would again like to say that I admire sincerely the great courage displayed by the Taoiseach in bringing this matter forward. It was a most courageous act on his part particularly when it concerns two members of his own Party. We should all admire that no matter what may be our opinion of the wisdom or prudence of his action.

Mrs. Concannon

My own reaction to the speeches which have been made is that it seems the action of Dr. MacCarvill in bringing this matter before an interior forum necessitated the setting up of a tribunal before which the charges may be brought. Therefore, they have a certain thing to investigate. You could not investigate this matter unless you had the facts and what better means is there of getting at these facts than by setting up a tribunal which will go into the matter and which, we are confident, will get the facts.

On those facts the Taoiseach and the Government must take action, and that is another very important thing— the action to be taken. I do not see that there is any other way of getting at the facts from which they must arrive at their decision except through the investigation of the tribunal. There is no question of prosecution; it is a question of getting the facts. That is what the Government wants.

The Taoiseach

Unlike some of the members of the Seanad, I am sorry that this debate did not last a little longer now that it has lasted so long because as we were going ahead, the important points were beginning to emerge.

As has been pointed out, it is the public character of this matter that concerns me immediately. I, and members of the Government, got this letter containing certain allegations. Why was it sent to me? Why was it sent to members of the Government? Clearly, because it concerned a person who was engaged in the Administration. He was a person of public importance, and when I got it my first concern naturally was the integrity of public life—so that there might be full confidence in it. I, therefore, had to approach it, in the first instance, from that point of view. Other aspects of it, what you might call the personal and private aspects of it from the point of view of allegations of a criminal character, were all present to my mind, too. But if anybody pursues any of the other lines of conduct, they will see at once that these lines were not open to me.

There has been talk here about ousting the courts. The courts are not ousted; the ordinary courts are not ousted. These will come into play and the nearest approach there has been to what is going to happen is that instead of having a small court in the first instance, a fact-finding court, we are going to have a court of a very high character. The first thing that would be wrong would be that the public should get any impression here that the ordinary courts are being ousted. They are not. They are not going to be the first resorted to. There is going to be a court of first instance as was suggested, I think, by Senator Hayes.

Why is it that we are adopting this course? The reason why we do that is this: if there were to be proceedings by way of libel action by Dr. Ward against Dr. MacCarvill, we would have a number of things coming out—side issues—which might be reflecting upon the character of the Parliamentary Secretary as a public man. Was he to continue in office while that was happening, or was I, on the other hand, to say to him: "You had better resign"? If I were to do that, would he not be able to say to me: "Any resignation on my part would be an indication that I accept these things as true. These will have to be examined home, each one of them in particular; all these things coming out as side issues in this particular case, will all have to be examined before you can reasonably and justly suggest that I should resign." Now, that would be the case if we were to have proceedings by way of libel action first.

It is suggested by Senator Keane, and by somebody else, I think, that there is some sort of shielding in this thing, in not proceeding by way of criminal action, and handing the whole matter over to the Attorney-General. Suppose that was done and, as a result of it there was a finding that Dr. Ward was not guilty, then it would be suggested that because he was in the Administration there was some interference with the ordinary procedure.

Sir John Keane

Oh, no. Does the Taoiseach say——

The Taoiseach

I say, definitely, that it would, knowing enough, as I do, about all the rumours and suggestions that are made. I say that and I believe that would be said. It would be said that either the Attorney-General or the Gárda did not proceed against a person who was in an administrative position with the same determination they would have used in proceeding against a person who was an ordinary citizen. And we must remember that he is not an ordinary citizen as long as he remains a Parliamentary Secretary. There is no use in pretending that he is. If he has to be proceeded against as an ordinary citizen and the proceedings are to have the full confidence of the people, then he cannot remain as Parliamentary Secretary, and if criminal proceedings were to be taken against him at the same time it would be necessary for him to resign his position.

Am I then to ask him to resign? If I ask him to resign, I am in the position that he could say to me: "It is not just. I must be in a position of innocence until I am proved guilty." Surely anyone put in my position, in the Government's position, will say: "The other two courses are not open to you."

I quite admit that people want to look into it and examine it from the point of view of the integrity of public life and they can easily be influenced by promptings and suggestions that some special privilege is being given Dr. Ward, because he is a Parliamentary Secretary, that there is going to be one law for the rich and another law for the poor, as Senator Sir John Keane suggested would be said.

In other countries that Senator Keane knows, this procedure is often adopted where there are charges against people in administrative positions. It is not an unusual thing. That question was raised in the Dáil to-day—I do not know if it is proper to refer to what was said in the other House—this question of the prejudice there would be against Dr. Ward in this matter and that if a libel action came after this a jury might be influenced by it.

Those who think that this is an unfair mode of procedure against Dr. Ward have one set of objections and those who think it would be too fair to him have another set. I am attacked from both sides. I knew that no matter what course I took, I would be attacked by some people; but I have to put up with that. All I know is that this course has been suggested by me, after full deliberation and with full advertence to the various aspects of it that have come up for consideration in the Dáil to-day and in the Seanad now. The more I have listened to the arguments against it, the more I am convinced that I am taking the only course appropriate in the circumstances.

There is no overriding of the ordinary courts, which will have full opportunity to consider this, once this tribunal has brought in its findings. I will then be in the position, in regard to the public life of the country, that I will know whether there is to be a criminal action, in which case I could, for example, ask Dr. Ward to resign, without any compunction. On the other hand, if there is to be no such action, then there will be no such question in my mind of any difficulty as far as that is concerned. I would have resolved my difficulty, which is to know what the Government's attitude should be. It is the Government that is responsible, as the Parliamentary Secretary is appointed by the Government, on the nomination of the Taoiseach. I have full confidence, unless and until something is proved to the contrary, that these charges are not true. That must be my approach. If the investigation should show that I am wrong, I will be able to take action.

I do not think that the Seanad here ought to feel itself coerced by the fact that a decision has been taken in the other House. The two Houses must concur before the tribunal can be set up. It is true that the person concerned is a member of the other House and that the Government is responsible from day to day to that House. That gives special importance to it, and no doubt it will be kept in the minds of Senators in deciding this matter. However, the Seanad has its own independent responsibility and I do not want it to attempt to shirk that responsibility by saying: "The other House has decided and there is no use in our making up our minds on it at all." Believing that this is the right course, I appeal to the Seanad to pass this Resolution, but I ask them to do it on their own independent and individual judgement, so that we will feel that this tribunal is being set up not by one House but by both.

This procedure is done under an Act of Parliament. I am very grateful to Senator Ryan for doing something which, perhaps, I should have done myself in introducing this particular matter. Perhaps I assumed too much. I assumed that this procedure was known, on account of the fact that it has been used not once but a number of times. It is an Act of Parliament designed to set up tribunals for investigations of this sort. As someone has suggested, there is a medley of charges involved in this and they were intertangled in such a way that if you proceed in one way or the other you have charges of a particular kind coming out as a side wind, instead of being directed definitely to the points at issue. These judges are investigators and I do not agree with those who say that judges are not fit and proper persons, or at least that they are not particularly fitted for investigations. They may not be fitted for certain types of investigation, but for the evaluation of evidence, to decide whether certain statements represent real facts based on sound evidence, surely you could not get any people with as much experience and training as judges have? Surely they have experience enough to know whether a particular piece of investigation should be carried on in order to bring out a certain fact?

The House agreed the debate should be adjourned till later to-day. If the House wishes to resume it now, the Chair has no objection.

Liam Ó Buachalla

I propose that the House adjourn until 3 o'clock tomorrow.

Mr. O'Dea

I second, if necessary. Motion put and agreed to.

The Seanad adjourned at 9.50 p.m. until 3 p.m. on Thursday, June 6th, 1946.

Seanad Éireann debate - Wednesday, 5 Jun 1946