One point struck me since the adjournment in connection with the vexed question of Section 10, sub-section (1) paragraph (f). It refers to the words "on which he absents himself from the place where he performs his duties under a local authority or refrains from performing those duties...." It has been brought to my notice that sometimes vocational teachers have deliberately absented themselves from performing certain duties which they hold are not really their duties, but which their senior officers hold are their duties. To take a convenient example, sometimes in the vocational schools, extra lectures will be arranged for visiting lecturers, who sometimes have to display lantern slides or need attendance in some form or another. On certain occasions vocational teachers have been ordered peremptorily to undertake looking after the lantern slides or handing round leaflets or other tasks which they consider are not, properly speaking, part of their duties, and they have deliberately absented themselves from those lectures and have incurred the displeasure of their senior officers. It seems to me, therefore, that a certain injustice may be caused through varying conceptions of what in fact are the duties of certain local government officials. I would urge the Minister again to reconsider this paragraph to eliminate the possibility of, say, a vocational teacher refusing to perform duties which he considers should not, properly speaking, be his and which in fact are not properly his duties, being penalised to the extent of losing 20 or 30 years of his pensionable service.
Local Government (Superannuation) Bill, 1955—Committee Stage (Resumed).
With regard to the point made by Senator McHugh, if those are not the vocational officer's duties, then he is not absenting himself from the place where he performs them. I think that is the very simple answer—that if they are not his duties, there is no obligation on him.
Supposing his senior officer says that they are part of his duties?
Surely there is a simple manner in which that can be decided. When an officer is appointed, he is told what his duties are, that he has to teach certain subjects, and it will be very clearly laid down in his appointment what his duties are. If he is asked to do something which is not part of his duties, he is not absenting himself from the place where they should be performed.
We still have not got a reply to the points raised on Section 10 last evening. I was wondering had the Minister overlooked them. He has not replied to the general debate, if I might say so, on Section 10. He will recall that I accepted his assurance that paragraph (f) of sub-section (1) was designed to deal with individual discipline rather than group discipline, and I asked him to show us that by saying that he would appropriately amend that sub-section so as to exempt any action taken in support of a trade dispute. The Minister probably has forgotten about that point, or overlooked replying to us, or giving us any assurance on the matter.
As I pointed out to Senator Sheehy Skeffington the other day, I do not wish to use blackmail of any description on the House. If the Senator wishes the section so amended, and if this House wishes it so amended, I will consider the matter, but it must go back to the Dáil, and it means depriving those unfortunate people who will benefit by the Bill of one year's superannuation. If that is the wish of this House, I will accept it. I am not in the least concerned. I am not going to try to rush this Bill through the House. I gave an undertaking that I would try to have the Bill enacted before 1st April, but I am in the hands of the Legislature, and if the House presses me to amend the section, I am completely in the hands of the House.
I am afraid I cannot accept that.
Very good.
I cannot accept the second part of the Minister's statement at all, because he knows as well as I that if he were to amend it accordingly, it could be put through the Dáil with the consent of all Parties very quickly. I do not think there is great merit in his argument that that amendment would necessarily involve a year's delay.
In regard to the first point, however, he may not know that the Seanad as such cannot amend this section along the lines I am asking, because of certain rulings. We cannot put down amendments which would tend to increase any charge on the Exchequer, so that it is still back in his lap. We cannot as a Seanad express an opinion because we cannot put down an amendment. I am only expressing my opinion, but I would like to see him, the Minister, put down an amendment, because I cannot do it myself and no other Senator can do it. I do not know whether other Senators are of my opinion in this matter, that they also would like such an amendment. I do not know how we can adequately express it to the Minister, except by getting up one after another and saying that we would like the Minister to do so.
I am glad to see what I would describe as a change of heart on the part of the Minister in dealing with Section 10, which has been, I think, rightly, described in this House as a penal section. There has been, in my opinion, a rather unrealistic discussion as to what should be done when workers belong to groups and when they do not, because when we pass legislation through the Oireachtas, we must always have the individual in mind, not whether he belongs to a group or does not. The rights of the individual must be taken into account always. Is it because a person belongs to a group or a certain organisation that he would be entitled to any more consideration than an individual who does not belong to any group or organisation? That is why I say that our approach to this matter has been on a somewhat erroneous basis.
I had in mind those two words "misconduct" and "unfitness". In my opinion, the two words should not stand together at all, because, to my mind, at any rate, a person who would be said to be unfit is in an entirely different category from a person who would be said to be guilty of misconduct.
"Misconduct or,"—it is not "and".
But the two of them are subject to the same treatment by the section.
Not in regard to the refund of contributions.
Unfitness is a greater fault than misconduct.
They are regarded as similar with regard to having their years of service calculated for pension purposes, and that is what I regard as a major consideration—wiping out the previous years for pension purposes. As I have said, I am glad the Minister has given consideration to the views of the Senators from the different sides of the House in regard to this matter. There should be no difficulty about having the Bill passed through the Oireachtas before 31st March, because we would be willing to give him all stages of the measure later this evening, giving him time meanwhile for the drafting of whatever amendment he considers necessary to cover the points made by Senators. I think it could be done. Where there is a will, many things can be done.
I should like to be one in the line who will, I hope, support Senator Murphy in this matter. I have been listening to the debate with care, and I have also watched the Minister with great care, and my impression is that he is beginning to see that perhaps what we are saying has justice behind it. I agree with Senator Murphy and the others who put down an amendment to this clause that the term "unfitness" is dangerously vague. It could be used unfairly, in my opinion. Certainly, sub-section (f) seems to me too great a potential penalty for a possibly trivial offence. I should say that possibly in the future the Minister might very greatly regret this clause if he leaves it in. I can see its being very dangerously abused, and that people who will suffer under it may have a rankling sense of injustice fairly soon after it goes through. I welcome Senator Kissane's suggestion that the House should allow the Bill through all its stages to-day, if the Minister would see his way to bringing forward a suitable amendment on Report Stage. I would urge him to consider it very seriously.
One would imagine, to hear Senators speak, that this is some innovation, this "penal clause" as somebody has described it. I would remind Senator Kissane of the Local Government Act which was passed in 1941, and would particularly refer him to Section 25, sub-section (1) which deals with removal from office of an officer of a local authority. I will give him the grounds on which an officer may be removed—sacked, in other words. They are as follows——
We know that that is there.
The section says:—
"For the purposes of this section the following shall be the statutory grounds for the removal of the holder of an office from such office, that is to say:—(a) unfitness of such holder for such office, (b) the fact that such holder has refused to obey or carry into effect any order lawfully given to him as the holder of such office, or has otherwise misconducted himself in such office ..."
That is the law for the past 15 years.
I beg your pardon. Does it state there that all the years of service previous to that are to be wiped out for pension purposes?
It is not a superannuation Act.
That is the point. That is the fundamental issue between us. You are wiping out the previous years for pension purposes.
That was the practice and is the law. Supposing we inserted this particular clause, as the Senators suggest, it would not affect the Act of 1941. It might affect a superannuation Bill, and it might affect some past superannuation, but it would not affect the existing law. It has been suggested that this is something new.
It is something new. There is no sub-section there in the 1941 Act that will deprive anybody of his pension rights, even if he is dismissed.
That was the practice—that he was removed from office, otherwise sacked, and that is the law since 1941.
That was 15 years ago. We are progressing.
We do not amend it by amending this Bill. Amending this Bill will not affect the grounds for removal from office of an officer under the 1941 Act. That should be quite clear. Somebody did mention last night that I may have overlooked this point, that this unfortunate person removed from office would forfeit all the contributions made by him. That is not so at all. I would refer Senators to Section 24 of the Bill which provides for the various circumstances in which contributions will be refunded and there will be no loss. Section 24, sub-section (4) provides that:—
"Where a pensionable officer of a local authority having not less than ten years of pensionable local service ceases to hold his office for any cause other than misconduct, does not accept any other position service in which is capable of being reckoned under this Act and is not entitled to a lump sum and allowance under Section 15 of this Act or a marriage gratuity under Section 22 of this Act, the local authority shall return to him the contributions."
That is, in the case of unfitness, the local authority is compelled to return the contributions. Again, under sub-section (3) where a pensionable officer who has less than ten years of pensionable service ceases to hold office, for any cause other than misconduct, the local authority must return the contributions to him. That makes it quite clear.
It has been suggested to me that the House could give me all stages of the Bill this evening and that I should come back with an amendment on the Report Stage. It must be remembered that, if we amend the Bill, it must also go back to the Dáil, which has two days more, one of which will be taken up entirely with the present Vote on Account, and I cannot visualise getting anything from the Dáil on Report Stage, if it is amended here. If the House and Senator Kissane say that they are not particularly concerned whether we get it through—and I think Senator Murphy said something similar —if the House is not particularly concerned about passing the Bill through by 1st April, I do not mind. I am willing to bow to the wishes of the House.
I want to correct one thing the Minister has just said. I did not say that at all. I said that we on this side of the House were anxious to have the Bill put through the Oireachtas before 31st March, and it is because I was anxious to have that done that I said that we would be prepared to pass all stages through this evening.
I do not wish to take any part in the debate on this section, though I am impressed by what was said by the various speakers. I intervene purely for information because I am rather mystified about the extreme urgency of putting this Bill through. I know that there are certain financial measures that have to be passed before the end of the financial year, otherwise the expenditure of money by the Exchequer becomes illegal. I really want to know, because I have not quite followed the Minister's explanation, about the extreme urgency in having this Bill passed. He says that he is not going to blackmail us into passing it, but, if we do not pass it, an awful lot of terrible consequences are going to fall on a great many innocent people. It seems to me, if this is so, that we will have a moral obligation to rush the Bill through, even if we are not entirely satisfied with all its provisions. I am asking in all innocence and with a desire to get information why that should be so. I see that this Section 10 is in Part II of the Bill and I see in Section 4 that Part II of the Act shall come into operation on such day as the Minister by Order appoints for that purpose. There is nothing there about 1st April. Section 5 deals with Part III. It is very complicated and it refers back to Local Government Acts. I think probably that some of these Acts contain references to the 1st April as an important date in local government law. I do not know. I can see that possibility. There may be something in Part III of this Bill which must be related to a year beginning on 1st April although, even in regard to that, I cannot see why an Act of the Oireachtas should not amend another Act of the Oireachtas.
I should like to have explained why Part III should have to be passed next week before 31st March. Whatever may be said about Part III, I cannot see why, when the Minister, under Section 4, can bring into operation Part II on any date he likes, we should be rushed in the discussion of Part II —which we are now discussing—under this threat of immediate and terrible war.
I do not wish to make any threat at all. I am merely trying to point out that if this Bill does not become law on 1st April then, if a road worker died or was killed in the course of his employment, for the next 12 months his widow cannot receive any death gratuity, because 1st April is the first day of the financial year and contributions will only be payable from the first day of the financial year.
I have no urgency whatever with regard to this Bill, absolutely none. Let me make that clear. I did not come here to steam-roll the Bill through the House, or anything else. I am not in the least concerned. It is my duty to introduce the Bill. I will not muzzle the House in any way. If, as Senator O'Brien suggested, I am trying to stampede the House into passing the Bill, I will certainly withdraw. I have given the House an undertaking. If they want me to, I will consider the matter. That is all I can do.
I have heard the view expressed from different sides of the House that Senators are not particularly concerned as to when the Bill may come in. You know the position. Let it be clear. I must go back to the Dáil. I have to come back here——
It is hardly fair to say that we are not anxious to have it done before 1st April.
It is not.
If the Bill is amended here, you do not have to come back.
Of course I do. I am trying to explain the procedure to Senators. Far be it from me to explain to members of this House the procedure which they know much better than I do. I have tried to budget for every available day of the Legislature and to have this Bill through, but I am not going to try to stampede the House.
I am sorry the Minister should have said he was not particularly anxious about getting this Bill through. I know he is. I believe he is as sympathetic and anxious to get this Bill through, for the sake of the people concerned, as any of us. I am not very clear yet as to the reason why this first part is necessary, but the Minister says it is necessary and I must accept his word.
I am not prepared to risk the loss of the Bill, if the Minister assures the House that that will be the result, if the House insists on amending it at this stage. I have no hesitation in saying that if this Bill came before us three or four weeks ago, we would all have done our best and I believe we would have succeeded in throwing out this sub-section. However, I must take the Minister's word. If he says very emphatically and very distinctly that our insistence on this amendment at this stage will mean that the people who are going to benefit—the road workers, the ordinary Part III people —will lose to the extent of one year's benefit, then I would not be a party to voting to have the amendment carried. However, I want it to be quite clear that that is the position—that the Minister would not in that case be in a position to have this Bill enacted before 1st April.
There is no use in our trying to blow hot and cold on this measure. At one time, we declare that it is desirable to have the Bill passed with the greatest possible speed and at another time we fall back and say that we have plenty of time to consider it. I want to make my position clear. I want to have this measure passed through the Seanad so that it will become law by 1st April. I can see no valid reason whatever why that cannot be done in the circumstances of the case.
The Minister has just referred to the procedure as between Dáil and Seanad. What happens? When amendments are sent back to the Dáil, they are the first business to be considered on the first occasion the Dáil meets. I want to impress that on Senators. When amendments go back from the Seanad to the Dáil, no matter what other business has been ordered for the Dáil—I know this from experience—on the first day it meets, the first business to be considered is the amendments that come from the Seanad. Therefore, there should be no difficulty whatever in getting this measure through before 1st April.
The Minister said that they would have to go back again to the Seanad.
Before I go to the Dáil.
If the Dáil agrees to them, that finishes it.
I will make it very simple, with the permission of the Chair. Suppose we decide this evening that I will consider amendments. I have to consider them; I have to consult my colleagues in the Cabinet; I have to come back here on the first day on which the House sits, namely, Wednesday next; I have to come back here with the amendments, if any. Senator Kissane is quite right. I can go back to the Dáil on Thursday of next week. We were told to-day it was doubtful whether the Dáil would sit on Thursday of next week. I have to go back with the Bill, as amended. I have no guarantee that the Dáil will accept this amendment. I have no guarantee that they will not discuss it for a couple of days.
In order to facilitate the passage of this Bill, I collected every possible group of political Parties I could find and consulted with them between the Second Reading and the Committee Stage of the Bill in the other House. Actually, I consulted some Senators. I let it be known that if any group wished to consult me, they could do so and I must say that the groups of all political Parties consulted me. Some of their wishes I was able to meet; others I could not. It was in order to shorten, if at all possible, discussion in the Lower House that I did that. I must say that I got magnificent cooperation when it came to the Committee Stage of the Bill.
It seems to me that, arising out of what Senator Kissane has said, there will be time for us to meet next Wednesday, as we shall be meeting in any event, and to accept the amendments which the Minister will put before us along the lines suggested now, and to have those amendments before the Dáil in time for the Bill to go through before 1st April.
When I asked the Minister, together with some other Senators, in April of last year, whether he hoped to be able to introduce such a Bill quickly, he said he hoped that he would be able to do so, and he did introduce the Bill before the summer recess of that year. The Second Stage of the Bill was not reached, however, in the Dáil, until December. That represented a considerable lapse of time, though I do not blame the Minister for it. The Bill did not, however, reach this House until March and I do not feel that it is quite fair to us to tell us now that we are going to lose a whole year, unless we pass it quickly and accept it without amendment.
As most of us consider that the Bill contains at least one serious injustice, I would rather not give the Bill to the Minister now, and, if necessary, I would take the unpleasant step of waiting for a year in order to get a Bill from which that serious injustice has been removed, rather than that, in our rush to get the Bill quickly, we should allow it to go through with that injustice enshrined in it for many long years ahead, and not merely for one year.
We have reached the stage in the discussion of this section where the Minister is convinced of the justice of the claims made by the speakers on both sides of the House and he has now departed from the stand which he made first in defence of the section. He has now tried to suggest that the powers already exist for the Minister and local authorities to deal with officers in their employment whom they wish to dismiss for one reason or another. The main speakers in the debate have expressed a desire to have this section amended. No member of this House can amend the Bill, unless the Minister introduces an amendment. He has now reached the stage when he sees the justification of the demand of the House and he reacts by bringing in a new threat.
The first line of his defence in that threat is the urgency of the measure. Let us examine what the urgency is. He expects to have the Bill in operation on 1st April. A few moments ago, he suggested that if a road worker died after 1st April, his widow would not be entitled to the death allowance, because the Bill had not been passed. One would imagine from what he said that every servant of a local authority would be covered by the Bill on 1st April. Last night, we had from the Minister a statement that very few local authorities in Ireland had yet given effect to the measure of 1948.
I said no such thing.
He pointed out to Senator Hickey that even Cork County Council, the largest county council in Ireland, had not yet given effect to the provisions of the 1948 Act. How then can the Minister substantiate his statement that, if this Bill has not gone through the House by 1st April, the widow of a road worker will not be entitled to the benefits? This statement from the Minister is a threat that, if the House insists on its rights and amends the Bill, it will hold it up. Every Minister who has come into this House, no matter to what Government he belonged, has said that every Bill is an urgent Bill. I do not blame them for that, but we, on this side of the House, went as far as we could be expected to go and made a very generous offer. If the Minister is now prepared to introduce an amendment, we would be prepared to meet to-morrow in order to facilitate the early passage of the Bill and to have it in operation by 1st April.
I think I owe an apology to the House and to Senator Sheehy Skeffington. I did give an undertaking in the month of April of last year that I would endeavour to have the Bill introduced before the summer recess and that I did. Nothing further was heard of the Bill until just before Christmas, but the circumstances were peculiar and tragic. My Parliamentary Secretary, the late Deputy Davin, was responsible for the initial drafting of the Bill and was most anxious to continue the drafting of it. Despite the fact that I knew of his physical condition, I did not wish to depress him in any way by taking out of his hands the drafting of the Bill or by seeking another Parliamentary Secretary. I know that the late Deputy Davin had his heart and soul in the Bill and he deserves the credit for what the Bill contains. I only took it up at a later stage.
Let me say at the outset that I am not convinced by the arguments of the Senators that I should amend the section but if the Seanad wishes me to consider the amendments, I am prepared to go back and consider them. I have certain commitments in this matter. I would have to consult my colleagues, provided I was satisfied that the amendment was necessary, and then I would have to come back here.
Senator Hawkins was right in pointing out that all local authorities did not adopt the Act of 1948, but this Bill will bring in many more beneficial widows than the Act of 1948 and it is for those unfortunates that I am trying to provide. I should not like it to be thought for one moment that I had any personal interest in trying to stampede the House. I have not. Every available legislative week since the Christmas recess has been occupied by me with this Bill. I have got it before this House at the very first available opportunity on which I could. As I said at the outset, I apologise for the delay, but I am sure the House will sympathise with me in the circumstances in which it occurred.
I think it is clear now that the feeling of the House is that sub-section (f) should be suitably amended. The Minister earlier on said that, if it was the desire of the Seanad, he would undertake to examine suitable amendments.
That is right.
I think that is as far as he went and I rather thought that Senators who assumed that he was satisfied that an amendment was necessary took too much for granted. I think that is as far as we can press the Minister at this particular stage, provided we are all very clear as to what the position is and, that is that, between now and the Report Stage, the Minister being satisfied as to the views of the Seanad, will consider appropriately amending sub-section (f).
This is another section that contains an objectionable provision. I feel that the sting has been taken out of it, in view of the position that has been reached now. Otherwise, I would certainly have a good deal more to say on this and perhaps on some other sections. I do want to point out to the Minister that this also means that a pensioner's allowance may be reduced because of the necessity for a certificate that he has served with diligence and fidelity during his whole term of office. That is an unusual provision in pension schemes that I have any knowledge of and, again, it is something in the nature of a threat to hold over a man's head, that he may be deprived of some of his pension, unless he gets this certificate.
I imagine that if a man serves during the period of 30 or 40 years that he is retained in the service, it ought to be assumed that he has served with diligence and fidelity. I do not see why it should be questioned at the end of his long service. I do not know the significance of the word "fidelity" there, but it should not be questioned that he has done his ordinary day's work and he certainly should not have this threat hanging over him because it can be used as a threat by his superiors. In a way it is humiliating that that should be hanging over him and that he should be waiting to get this certificate at the end of his career. Unless there is a file kept of his service, I do not know how the superior officer could, say, at the end of 40 years, be in a position to say that the officer always served during the whole 40 years with diligence and fidelity. I do not want to dwell on it, but the objection is obvious.
Are the words really necessary? It could be "to their satisfaction" without putting in "with diligence and fidelity".
Does it ever happen? My experience in public life is not as long as that of some of the members here, but it goes over almost a quarter of a century, and I have never heard of any public servant, who was being pensioned, not getting his full service, with a request for added years as well. I wonder is it only a precaution——
That is right.
——that the Minister must take in the case of a person who misbehaves himself grossly.
It is not an innovation at all, as Senator O'Connell has pointed out. The provision is the very same as in the 1948 Act. The wording is the very same as in the 1948 Act.
I was speaking of other teachers' pensions.
Unfortunately, the Senator is inclined to look at it only from the vocational teachers' point of view. There are many more employees. They are only a very small proportion of the employees of local authorities. Under the Local Government Act, 1925, while it was mandatory on the local authority to grant a pension, there was a proviso and they could, at their discretion, grant the pension, subject to a maximum of two-thirds of the salary. The local authority themselves had that discretion under the 1925 Act. The wording of this present Bill is the very same as the Act of 1948. In my opinion, the principal effect of this is merely a deterrent and is not a practical effect at all. Another reason —if we had not got this, a man could be sacked without pension or given full pension. We may have a line-ball case. This is to give the man who is the line-ball case an opportunity of qualifying for a pension and, at the same time, it will ensure that the servant or officer will do his duty diligently and faithfully. Is there anything wrong in that?
If he does not, he should not be employed.
That is just the point, but I am trying to protect them.
Some of them do not and are still employed and getting away with it.
Your responsibility, Senator.
No matter what profession we are in, we are expected to do our work diligently and faithfully. We are expected to do that, and, if we do not, then we should be penalised in some way. It is just like the old story. People object to being bound to the peace. We are all bound to the peace. We are all bound to keep within the law and if that little extra burden is thrown on us to give us an extra penalty for not obeying the law, we cannot object. I think it is quite clear. If a man does his job diligently and faithfully, he is entitled to full pension and, if he does not, he is entitled to have something deducted from it.
On Second Reading, I dwelt at some length on this point, that many officers will never get the maximum allowance, or the maximum lump sum in any case, which is provided for in this Bill. As I explained, 45 years' service is necessary before the full lump sum can be obtained. In the case I mentioned, the minimum age at entry is 21 and many officers do not enter until much later than that. I do not want to go into that again at this stage, but I want to ask the Minister what is the provision in a case of that kind, under Section 13? Section 13 is the section that deals with added years, but, as far as I can see, it would not be of much benefit. It says that in no case can they give a greater service than 40 years. So, I am afraid it would not be much good as far as the lump sum is concerned.
It is in the case of professional service that added years would be given.
The body I mentioned specially was the vocational teachers. Is their service regarded as professional service?
No.
Are they covered by the Bill?
They are covered by the Bill.
Section 13 would not benefit that particular body?
No.
We will have to leave it so. We are quite sure that no member of that particular body can ever get a full maximum?
I do not want to go into details with the Senator, but suppose a man is a metal-work teacher and is not employed until he is 35 by the local authority, he has been employed by somebody up to then.
I am informed that the minimum age of entrants for vocational teaching is 21. Therefore, he cannot make the 45 years.
He goes very near it and somebody else may amend the Act. I hope this will not be the last amendment.
There will be a lot to be amended.
I should just like to make the point in relation to Section 17 which could also be made in relation to Section 22, that it seems unjust, in counting a person's pension rights, to exclude a period for which work was actually done. It seems to me that the Minister is being a little unfair in being prepared to exclude any odd fraction of a whole year, to "disregard" it in the total, although it might represent work honestly done and service really given. I would ask the Minister, as I understand he is considering possible amendments, whether he might not be prepared to accept such amendments as were put down by Senator Hawkins and myself —and, I think, by one other Senator— in regard to counting a person's service for what it really is, and not to "disregard" what might perhaps be a large fraction of a year.
I should like to join with the previous speaker in urging that point of view on the Minister. I had an amendment down to the section, which was ruled out of order. I think the last speaker has made a very good case and that the Minister should consider it between now and Report Stage.
I will support that, and I would say it is usual in superannuation schemes to allow for that type of pro rata service. To simply say that, if a man has served a day short of the 364, he shall not benefit, seems to me to be a monstrous injustice. I think it is only right and proper that the pro rata service should be counted in. The Minister may say that that would create some difficulty, but there is really no difficulty because this sort of calculation is all done by machines nowadays.
This Bill is notable for the fact that it marks a departure to some extent in a liberal direction from the policy of the 1948 Act and the method of dealing with odd fractions in dealing with years of service in calculating pensions and allowances in that case. I would also refer the Senator to Section 12 of the Bill which provides that:—
"the pensionable local service of a pensionable officer at any time shall be the period or the aggregate of the periods which under this part of this Act he is entitled at that time to reckon as service,"
and in that way odd fractions are reckonable. It is a fairly liberal departure from the 1948 Act. As I said a few moments ago, I feel confident that this will not be the last superannuation Bill which will be introduced, and as we go along we may become more liberal. I certainly think I have dealt with the matter much more liberally than it was dealt with in the 1948 Act. I do ask the Senators not to press the point at this stage.
I just want to ask on that point, are these fractions allowed only if, when they are put together, they make up a complete year?
Yes, or three-quarters.
Because it is only a complete year that counts, but you can use as many fractions as you have to make a complete year?
Yes, or three-quarters.
No, not three-quarters, because when you are calculating the pension, it is calculated by multiplying the number of complete years.
I will refer the Senator to Section 13 (g) which says:
"where the aggregate service of the officer amounted to a number of completed years and a fraction of a year exceeding three-quarters."
That counts as a year?
Yes.
That refers to additions to pension for local officers.
Yes, and that is what we are dealing with under this section.
No; we are dealing in this section surely with the pension to which the man has a right.
We are dealing with Section 17.
That deals with pensionable officers. I do not see where the connection is with Section 13 (g) at all.
If the case the Minister has made is in reference to Section 13, what is the purpose of Section 17?
Section 13 covers the calculation of all pension rights under Section 17; that is the connection.
I am not opposing the section now as I have already referred to the point I wish to raise.
This is the section which provides for the contribution. This contribution, as I pointed out on the Second Reading, is not, strictly speaking, a contribution; it is a deduction from the officer's salary, and to the extent that it is a deduction, it goes to relieve the rates. I want to point out—and the Minister will pardon me for saying this as it can only have effect on an amending Bill later— that the finances of this are peculiar. The deductions that are made now help the rates or the Government for the time being, but in 40 years' time the whole effect of the load will fall on the generation then living. It may not concern us then.
Perhaps I can illustrate that better by giving an example. A man enters the service now at, say, 20 years of age and his deductions of 5 per cent., we take it, are used to help the rates and so on, year after year. In 40 years he retires and whatever local authority is there at that time will then have to bear the whole burden of the pension and allowances. That is why, in superannuation schemes, usually there is a fund into which the money is put and allowed to accumulate all the time, so that when a man's pension is due it can be drawn from that fund. I do not want to dwell on that now——
Perhaps the Senator would move the Adjournment.
It has been suggested that it might only take some ten or 20 minutes to finish this Bill and that we should continue and then adjourn until next sitting day.
We agree, if that suits the House.
I do not think there is much more of a contentious nature to discuss.
It is agreed that the House will continue on this stage.
In regard to the point raised by Senator O'Connell, I fail to see the difference in paying out 5 per cent. of the salary and retaining 95 per cent. or to reverse the procedure, instead of receiving 100 per cent of your salary, getting 95 per cent. I see no difference between that and receiving 100 per cent. and contributing 5 per cent. It is a deduction, if you wish.
I was only trying to point out the difference between having a fund specially kept from which pensions could be paid, and doing it in this particular way.
Suppose you had a fund, I wonder what would be the value of the money in 20 or 30 years' time?
That consideration will be there anyway.
I would support Senator O'Connell as regards the wisdom of funding such money rather than piling up the eventual payments to be made out of the rates. In these days, when we advocate saving as much as possible, there is a good deal to be said in favour of this money which is deducted from salaries and wages being funded together with similar contributions from the local authority, and it could even be borrowed by the local authority for the building of houses in the same way as certain superannuation funds are borrowed by other authorities. The, money is refunded, and out of the fund, investments are made in Government loans, or E.S.B. loans, or loans of that kind for the development of this country. I think there is a good deal of wisdom in that sort of procedure, in these days particularly. However, we cannot do anything about it now, except express our point of view to the Minister.
The House will probably appreciate the fact that there are probably more people employed by local authorities on road work than in any other type of employment, and the Minister is well aware that a great number of able bodied men in the undeveloped areas around the western seaboard are depending to a large extent on road work for a livelihood for themselves and their dependents. That road work fluctuates considerably, owing to the system of county road improvement grants, where certain roads are to be made up. Where certain main road improvement grants are involved, the Department suggests that a particular stretch of road should be made up and this means that there may be a considerable amount of employment in one area and not a great deal of employment in an adjoining area in the same surveyor's district. Consequently, many workers in one area may have only about 150 service days in the year as against 300 days for other road workers because it was considered necessary to make up roads in their particular district.
Consequently, it seems to be inequitable that each year should have to stand or fall on its own legs or, in other words, that the road worker must have 200 service days in each year, before that particular year can be reckoned for pensionable purposes. While a road worker may not be employed, he is drawing unemployment benefit, because he is available and willing to work, and that employment benefit is a source of maintenance for himself and his family during that period, and it arises therefore out of his employment. If he had not worked for the local authority, he would not have the stamps which would justify him in drawing that employment benefit. Considering this fact—that there is a considerable amount of road work which is admitted by the local authority not to be local authority work as such, in the sense that the local authority acts only as agents for the Board of Works——
Those days do not count.
That is what I say— those days do not count. The road worker does not appreciate what the Minister and I appreciate, that he is not going to qualify in respect of those days, despite the fact that he is employed on the type of work which he feels should entitle him to qualify for the 200 days' period set out. I presume the same would apply, possibly, in connection with E.S.B. grants. The Minister will be able to tell whether the E.S.B., which has a grant out of a particular fund to provide employment during the winter months where the employees are recruited from a list supplied——
It does not count, either.
Those days are a considerable number of the days in the year, and, if those are not to be counted, it would be difficult for people in those western areas to have a sufficient number of days in each year to qualify. I would ask the Minister, therefore, to consider sympathetically reckoning it over a period of years, two or three years, rather than on each year because it is obvious that there will be years when that road work would easily make up 250 days and the minimum total number of working days set out is 200. That is two-thirds of the year, and in view of what the Minister states—that these other employments coming out of this particular grant, are not to be reckoned—then it will be difficult for these men to qualify in each particular year.
The Senator appears to overlook the fact that the Bill merely provides for pensions for permanent employees of local authorities and I have gone as far as I could possibly go by defining permanent employee as one who has 200 service days in a year. First of all, the 200 days' rule is a basic principle in Part III of the Bill and it is not practicable to depart from it.
The amendment which the Senator had tabled would, in any case, only apply to local authorities who have not adopted Part III of the 1948 Act, such as Cork. In such cases, the amendment suggested by the Senator would enable a person to have his name entered on the register of pensionable servants, if in either of the two years preceding the date of the coming into operation of Part III, he had 200 or more service days. In the Bill, he may have 200 service days in the year preceding the coming into operation of Part III. In any other case, the average would make no difference. He may have had over 200 days' service in the first year and over 200 in the second year, or he may have had over 200 in the first year and less than 200 in the second year, or he may have had less than 200 in the first year and more than 200 in the second year, and these are the only three sets of circumstances arising. In the case of the first and second, his name is entered at the end of the first year and, in the case of the third, at the end of the second year.
Taking an average of two years makes no difference in any of the three cases. It is a basic principle, the 200 days, and it applies to permanent employees. I know the type of person that Senator Walsh is worried about. He is worried about the type of worker who may have 250 days this year and 150 the next. In my opinion, those workers are not permanent employees, because, once a road is made up, it takes five or six years before you need come back to it and consequently it will be five or six years before there will be employment in that locality again.
This Bill is not designed for that type of worker. It is designed for the permanent road workers, some of whom are known as "surface-men", while others may be mobile workers who go from place to place around the entire district. I think the Senator will agree it would be ridiculous to suggest that first of all we should give relief work for minor employment schemes to relieve unemployment and then make the relief work pensionable. If we have a patch of unemployment in a certain area, the Government gives a grant to employ men there during winter months.
The Senator suggests that not only should we pay the men, but we should make them pensionable. He says they are doing road work, of course.
Let me give an illustration. Supposing the Senator employs a gardener, but he has not got full-time employment for him and a neighbour up the street also employs the same gardener part-time, would it not be unfair to ask the Senator to pension that man simply because he is doing some work for the Senator's neighbour up the street? I think it would be very, very unfair. The man would not be, after all, a permanent employee of the Senator's. He would be employed jointly by two different people and it would be unfair to ask one to pension him.
Supposing a county council is carrying out road work and a particular employee is employed by the county council for that purpose— we will keep it to roads—for 150 days; the money provided for that work is raised by the county council on the rates and these 150 days will be taken into consideration in calculating the 200 days. Now, supposing that, for the remaining 50 days, he is still in the employment of the county council —and he is, as far as he is concerned —but is engaged on minor relief schemes, or works carried out by the county council on behalf of the Office of Public Works, he is paid out of moneys provided by way of minor relief schemes grants, or perhaps moneys provided by the Tourist Board, or by any body which may make a grant to the county council for the carrying out of particular works. That employee continues in the employment of the county council; the work is carried out by the same person; he is under the supervision of the same ganger; and he is paid from the same office of the county council.
But not out of the same fund.
Not out of the same fund but, as far as the individual worker is concerned, he is not interested as to where the money comes from; all he is interested in is the fact that he is in the employment of the same employer. He is under the same ganger. The general road work has been completed and he is transferred to some other type of work for 25 or 50 days, and, because he is one of the people chosen to continue working, he should have the right to be considered as registered under this scheme. Remember, the number affected may be very few. I do not think they would be anything like the numbers Senator Walsh had in mind. Now, in cases like that, I think a grave hardship would be inflicted on the people concerned. Once they are in the employment of the local authority and the local authority adopts a scheme, irrespective of the work on which they are engaged and irrespective of where the money comes from, the number of days they are employed should be taken into consideration for the purposes of this Bill.
All I can say in reply is that, when they are employed on minor relief schemes, they are employed by the Special Employment Schemes Office; in other words, they are paid out of Central Funds. Does Senator Hawkins suggest that the ratepayers in Galway or Donegal should superannuate employees of the State? Is that the suggestion?
The employee would be contributing as well.
And who else? We all know what the burdens are to-day on the ratepayers. Is it suggested now that the ratepayers in County Donegal should be mulcted to the extent of paying a contribution towards men who are employed by the State? That is the suggestion that has been made. I think we are being very generous in providing that an employee who is employed for 200 service days is entitled to a pension. The Senators go further and say: "That is all right. Give him the 200 days; that is reasonable." But the State may employ him for 150 days and the local authority for only 50 days. Is the Senator's suggestion that the ratepayers should pay his contribution?
No. The Minister is trying to create a difficulty where no practical difficulty exists. In the carrying out of works of the kind to which I have referred, a sum of money is made available to the local authority and that sum of money is provided to cover all works and expenditure in connection with a particular scheme. Surely the proposition is not such a difficult one as the Minister suggests? Could not whatever sum is involved in the paying of the contribution on behalf of the local authority be considered as part of the sum of money expended on the particular works? The local authority is asked to carry out particular works on behalf of the Board of Works. During the emergency, for instance, they were charged with the responsibility of producing turf. The county engineers were the persons in charge and there was a sum of money made available from the Central Fund to each local authority in respect of the carrying out of this work.
That is quite in order.
Is there any difficulty in making provision, when certain works are to be carried out, for a specific sum, that in the drawing up of the estimates it should be taken into consideration that the men about to be employed on those works would be entitled, if they were continued in the employment of the local authority, to some small payment? It would be a very small amount and even if the rates had to bear it, it would not be a great burden as the Minister suggests. We must consider the position of the worker who continues in the employment of the local authority doing certain work and being under the misapprehension that he is still entitled to benefit under the scheme, whereas, if he died even after 1st April of next year, probably, his wife and family would find out that, because on 31st March the county council transferred him to works under minor relief schemes or something else, they would not be entitled to benefit as they would have been had he died, say, on 2nd February, when, on behalf of the local authority, he was carrying out the work.
There would be no deduction for his contribution, if he was employed on minor relief schemes and he would know that by his pay packet. We have already passed Section 2 of this Bill which defines what a service day is. Section 2 states that:
"‘service day' means:—
(a) a day on which the servant worked in a wholetime capacity for one or more than one local authority, the work not being work (other than work in a supervisory capacity or work calling for special experience or skill which is not given to him by reference to the provision of employment for him or the relief of his distress) on any work or scheme of works the expenses of which are in whole or in part met from moneys provided by the Oireachtas for the relief of distress."
Having passed that section, there is nothing further I can say about it.
My amendment No. 14, to insert a new section before Section 45, refers to Sections 40, 41 and 44 and, with your permission, I will discuss those sections on the amendment. It refers to these three sections.
Why?
Because it is in reference to the question of a death gratuity.
I suppose we can permit the Senator to argue it, but the Senator will recognise that it is put down in the wrong place.
It was necessary to cover all three sections.
We will permit the Senator to move it before Section 40.
I move amendment No. 14:—
Before Section 45 to insert a new section as follows:—
( ) Notwithstanding anything contained to the contrary in Sections 40, 41 and 44 or any other part of this Act, a gratuity, in such cases where the sum does not exceed £300, shall be paid without production of grant of probate or administration to the widow of a deceased pensionable servant, in trust for herself and her family (if any) in accordance with law, or in the case where the deceased servant is a widower, then to his family equally.
Under this Bill, before a death gratuity can be granted, it must be paid to the legal personal representative and I assume the legal personal representative is the person to whom grant of probate or administration has been issued. Section 44 (2) states:—
"Where a pensionable servant of a local authority who has less than one year of pensionable local service dies, the local authority shall return the contributions to his legal personal representative."
I assume from that that the amount that would be paid would be a very insignificant sum. It may be only a matter of a few pounds, but the cost of extraction of probate or administration would be approximately £11 or £12. The cost involved might be greater than the actual amount the widow or the next of kin would be entitled to receive. In the Post Office Savings Act of 1920, under Statutory Rules and Orders, No. 1532, it is provided that in the case of a deceased depositor, when the amount is under £100, the Minister may pay the amount to a person who has paid the funeral expenses or to his next of kin.
Is the Senator quoting the full regulations?
Those are the regulations I have obtained from the solicitor to the Department. The value of money in 1921 as compared with to-day was possibly three times as great and, consequently, I suggest it is not unreasonable to ask the Minister to agree that local authorities may make payment to the widow or to the family of a deceased pensionable servant where the amount does not exceed £300, without the necessity of going to the expense of taking out this grant. The average pensionable servant is a person who is not a property owner. He is usually a road worker whose average weekly earnings would be approximately £5. It would possibly be unnecessary for that person to have to go to the trouble and expense of taking out a grant of administration, if it was for the purpose of receiving his gratuity from the local authority and I consider that the local authority, with the permission of the Minister, should be empowered at its discretion to pay out that amount in such a case.
I am really surprised at Senator Walsh, who is a very well-known and practical lawyer, making this suggestion. First of all, he made the suggestion that the cost of the administration might exceed the amount which will be payable. Did I understand him to say that?
Yes.
I would refer the Senator to the appropriate section in Part VI of the Bill which provides that, where it is less than £100, it can be paid out without a grant. If the Senator had read the Bill, he would have seen that it sets out at Section 61 (e):—
"If the recipient or the officer or servant in respect of whom the grant is payable has died and a sum not exceeding £100 is due on account of the grant, probate or other proof of title of the personal representatives of the deceased may, if the local authority so think fit, be dispensed with and the sum may be paid or distributed to or among the persons appearing to the local authority to be beneficially entitled to the personal estate of the deceased, or to or among any one or more of those persons, or, in the case of the illegitimacy of the deceased, to or among such persons as the local authority think fit, and the local authority and any of their officers making the payment shall be discharged from all liability as respects any such payment or distribution;"
Surely that is what the Senator wants?
£300 is the amount.
He could first of all raise the £100. We are doing exactly what is done under the Post Office Savings Act of 1920. The Senator asks me to go further. He asks me to amend the law governing wills in this country. Supposing a workman has left a wife and family. Supposing he may have some person dearer to him, and supposing he decides, by will, to leave his estate to that other person. The Senator wants me to cut across the statute law of this country and say, irrespective of what the deceased wished to do in his will, that the local authority must pay this over to the widow and the children. When the Senator considers that point—
I have considered it.
I can see his colleagues' look of consternation that a member of their profession should suggest that we should disregard in toto the wishes of a testator or testatrix, as the case may be. I have known cases in this country where wills have been disputed, and such cases are not unknown to the Senator. These cases are fought very vigorously, and the principal test which a judge and jury applies to the validity and capacity of a will is: was the testator of sound mind, memory and understanding; did he make his will in the presence of two witnesses; and were they both present at the same time as the testator when the will was signed?
Those are very solemn proofs, but the Senator wants me, by a section of a Superannuation Act, to cut completely across that and to say, irrespective of all that, irrespective of what the testator wanted, and irrespective of the solemnity of the occasion: "You must not carry out the request of a man who earned his money; you must ignore that, and you must give it to the widow and to the children." The widow may be an imbecile; she may be a person who is not capable of properly looking after or knowing the value of money. The Senator is not unaware of such cases. Let us not forget that any person in this country, where the estate is under £500, may approach the local customs and excise officer and, for a sum not exceeding £1, command the local customs and excise officer to extract a grant of administration. While that particular cheap method of law—with which I do not agree—is available, I do not think there is any necessity for amending the section.
The Minister briefly referred in the other House to this question of the local customs and excise officer extracting a grant of administration. But I would like to point out that the number of excise officers in the country has been very much reduced in recent years. I understand that, whereas there are approximately three excise officers in my county at present, there used to be eight or nine.
The solicitors are wiping them out.
The Minister is well aware that there is no excise officer between Burtonport and Letterkenny, a distance of 40 or 50 miles. He does not surely suggest that the unfortunate widow should walk into Dungloe to get a bus to Letterkenny, spend all day in the bus, and find that the excise officer was absent. Or, if he were present, how is she going to get the necessary two sureties to obtain that grant? In other words, it is practically unheard of now for any person to approach an excise officer in such a way. In the village in which I live, there is no excise officer for a very considerable distance.
The object of this gratuity was to provide for a widow and the family. If that was the purpose which the Minister had in mind when he drafted this Bill—that it was intended for these dependents—surely it is not unreasonable that those people should now benefit. It is not such a long time since legislation passed through this House to enable a widow, where there was intestacy, to get £4,000 instead of the previous £500 which the Intestacy Act provided. When this matter was discussed in the other House, there was no reference whatever to Section 62, or to the fact that a local authority may pay, when the amount is under £100. It is because of the discussion that took place in the other House that I brought this amendment at this stage.
I do not want to delay this matter any longer. The only thing I would like to point out is that servants and officers of local authorities are not illiterate. If they want to consult a solicitor, they do not go to his office on the day he is not in. They do not travel six or seven miles. They now write out their instructions and send it to their solicitor, or else ring him up and find out if he is in. Having done that, they go on the day he is in. It is not necessary to travel from Burtonport to Letterkenny to extract a grant of administration. All that is necessary is to write and tell the customs officer what you want done. He will send you a questionnaire by return, which you complete. He will then send you a form, you walk into your next door neighbour—in every village there are commissioners for oaths—you swear the documents with your two sureties and you send them back to the customs and excise officer.
Is the Minister aware that that is the procedure?
Of course, it is.
Is he aware of that personally?
Of course, I am. I blame the legal profession for not making this known. It is a disgrace to them that they have not made it known. I am going to ensure that the servants know about it because every local authority will receive from my Department a circular requesting them to inform servants that they have this legal right.
On a point of order, I understood that we were to have finished this in 20 minutes, and that we would then adjourn for tea. I gather from the things that have been said——
That is hardly a point of order.
What was the decision? I am afraid it was put in such a form to the House that some members are not sure whether we have decided to drop the whole of the rest of the agenda, or whether we are going to continue until we finish this, and then simply adjourn for tea.
The proposal is to finish this Bill and then to adjourn until next week.
I may have been rather dense, but I did not understand that. Had I understood it I should not have accepted it without protest. We were told earlier that there would at least be an attempt made to get through the agenda. I would be for adjourning only at ten o'clock in the ordinary way, even if we did not quite finish.
Some members have already left the House on that understanding.
It was put before the House in a way that I for one did not understand, and I think I can claim that other Senators did not understand that either. We understood that further consideration of this Bill would be deferred to the next meeting, but not everything.
There has been some misunderstanding about it.
I understand that the front bench on the other side understood there was to be this adjournment.
It looks from the number in the House that quite a number understood this would complete the business for to-night.
That was communicated to me outside the House.
I do not want to cause any embarrassment at this juncture, but we have only reached Section 40, and there are 71 sections and there are also some amendments to come. I do not know how long it is likely to take, but perhaps some adjournment, even of a momentary character, might be welcome at this stage. I do not see the rest of this going through within even an hour.
The House apparently made an agreement to continue until it concluded this stage of the measure and not to adjourn for tea.
I think I am right in recalling that Senator Hawkins, in making the statement, uttered the hope that we would be able to finish "in twenty minutes." That was about 6 o'clock.
Or until such time as we would finish the Committee Stage.
I suggest that we continue with this.
I am in the hands of the House as to whether we should alter the arrangement, but as the two Front Benches agree, it is difficult to alter that arrangement. With regard to Senator Walsh's amendment, do I understand the Senator to move that his amendment be inserted before Section 40? The amendment is worded in such a way as to have it inserted before Section 45 stating: "Notwithstanding anything contained to the contrary in Sections 40, 41 and 44..."
I am agreeable to withdraw the amendment.
I should like to raise a small point on this section. Would the Minister consider amending it to require the local authorities to notify servants whose names are entered on the new register under this new section that their names have been so entered? That would enable servants to consider the financial implications of paragraph (a) of sub-section (3), that is to say, paying a year or two years' contributions in order to qualify for superannuation.
If the Minister does not feel he could amend it, I wonder, when sending out a circular, whether he could see his way to ask the local authority to notify such servants of their rights under that section?
We hope to send an explanatory leaflet to the local authorities for distribution to every servant employed by them, but I should point out that they will get a better notice and that is the deduction of the contribution out of their pay packets.
Will that be done?
It will be takeout. The Senator need not worry.
I move amendment No. 15:
In sub-section (5), to delete all words after "section" in line 26 to the end of the sub-section.
It might save the House time if on amendment No. 15 I were to make the points I have to make in relation to amendment No. 17 also, because the principle involved is the same. With the permission of the Cathaoirleach, I shall take amendments Nos. 15 and 17 together. The amendment I propose is to Section 50, sub-section (5). What I want removed is the last part of the provision. Sub-section (5) says:
"A local authority shall have a discretion as to whether they will or will not enter into an agreement for the purposes of this section,..."
The part I want removed reads:—
"subject to the proviso that they shall not enter into the agreement unless they are satisfied that the officer is in good health."
This relates to a man who wants to make an agreement with a local authority whereby he will sacrifice some of his pension, so that if and when he dies his widow will be able to draw something up to the time of her death. That is a perfectly legitimate thing. Some allowance should certainly be made for the widow. The Bill, as at present before the House, would preclude from entering into such agreements people who, towards the end of their days of service, would not be 100 per cent. fit, "in good health". I suggest that those are the very people who would be most anxious to make provision for their widows. Furthermore, I notice that sub-section (8) of this same section which I tried to cover in an amendment—the amendment was ruled out of order—makes it impossible in fact for the local authorities to lose money on this kind of transaction, even if the man is not in good health, because the Minister, under sub-section (8) may "make regulations for the purpose of this section to secure that deductions from lump sums and death gratuities ... are not less than sufficient to meet the liabilities of local authorities." Consequently, on an actuarial basis, the local authority cannot lose, no matter what is the health of the people wanting to enter into such an agreement for the benefit of their widows.
That seems to me to be a very harsh condition. Those who are allowed to give up some of their pension must give up at least enough to recoup the local authorities for what they are going to pay out on an actuarial average. If any of them are not "in good health" towards the end of their days, they will not be allowed to make this agreement for the benefit of the widow!
The same principle is involved in Section 51 which is covered by my amendment, No. 17. It is with these considerations in mind that I beg leave to move amendments Nos. 15 and 17.
With regard to amendment No. 15, it is quite evident that sub-section (8) clearly shows this is meant to be a self-financing scheme. It is true that local authorities may lose in individual cases but, over all, it is supposed to be self-financing. The deductions from death gratuities and lump sums must, in general and taking one period with another, meet the pensions to be paid to widows. That is the principle.
Accordingly, if the scheme is to be even moderately attractive to the average officer, local authorities must avoid assuming liabilities in respect of what are known in insurance as "bad risks", namely, officers whose health is bad. It is obvious that all such officers would wish, if they could, to avail of the benefits of the section, but, if agreements were permissible in such cases, the deductions from lump sums and death gratuities to finance widows' pensions would have to be increased considerably. The scheme would become valueless to the average officer in good health and valueless also to the officer in bad health. No self-financing scheme of this nature can be run at moderate "premiums," unless there is a weeding out of bad risks. The mere fact that the deduction would be greater would frighten off the healthy officer, with the result that there would be nothing in the "kitty" for the officer in bad health. Neither party would benefit. It is the principle that "bad risks" should be weeded out. That is the only answer I can give the Senator on the particular point.
With regard to amendment No. 17, it is the same principle, and I think the same answer covers the point made by the Senator.
In relation to this amendment, there has been great emphasis placed on fidelity and diligence. How do you justify just a purely actuarial argument, an argument of finance of an insurance company that is simply operating for profit, when dealing with an officer who has incurred that ill health through 20 or 30 years of diligent and faithful service? It is a cold-blooded outlook. You must think of it, surely, in human terms.
I confess that I have been shocked by the terms used by the Minister when he talks about "weeding out bad risks", meaning that we must deprive the widows of "bad risks" of all pension rights and allowances! I would deny the validity of his analogy, because an insurance company, when it is approached by a candidate for insurance, is almost always dealing with a relatively young person, with long years before him for the payment of premiums. This is dealing with men in their sixties almost always, who are making such an agreement. I suggest that it is unjust to demand that they shall be "in good health", and I think it is supremely unjust to talk about "weeding out" bad risks. That really means quite simply victimising the widows of people whose health has broken down in the service of local authorities. I would urge the Minister very strongly to reconsider that, and perhaps to accept the validity of what I am saying, because it is obvious that, under the provisions of sub-section (8), the local authorities cannot lose, on an actuarial basis, taking one lot with another. They are covered.
Is the amendment being pressed?
Yes. I would ask that the two amendments be taken together and voted on together, because it is exactly the same principle.
If we decide this issue, then we will have decided the other amendment as well.
Division.
Will those Senators challenging a division rise in their places?
Senators Sheehy Skeffington and McHugh rose.
The Senators will be recorded as dissenting.
This is a section somewhat like the last one. It applies to former servants of local authorities who have retired and who may be entitled to allowances under this Bill, provided they apply for the benefits of the section. The question that strikes me is how such persons are to know that they are entitled to benefits, unless the local authority undertakes to notify them. Could the Minister think of some way to amend the section to cover that, or would he by some means notify the persons, or get the local authority to notify them, of their right, because it depends on their applying for it? Otherwise, they lose it.
The Senator will appreciate that it is quite difficult to bring to the notice of the citizens of the country the law of the land. It is very difficult to bring to the notice of each individual his rights. For instance, I in my Department, and the Ministers for Health, Social Welfare, or Education do not know who the employees of local authorities are down the country. We have not the vaguest notion. But what we will do is this: on the suggestion of the Senator, we will notify local authorities that they should bring to the notice of their former servants and officers the rights they have under this section.
I thank the Minister.
I oppose this section for reasons which I made as clear as I could on the Second Reading. I have said that in relation to the so called "weeding out of bad risks," I was shocked by the Minister's words and attitude. I must say here that I am horrified by this whole section. This section deprives a man of his pension, if he has done a period of hard labour or served a penal servitude sentence in excess of 12 months. I made the point that you might make some kind of case for diminishing the pension of a man who has lived at the State expense in one of our luxurious jails for the time of his sentence, though not for diminishing the income of his wife and family, who are not lodged in jail with him. But to deprive him altogether of his pension on his release from jail or on his conviction, as is the case, seems to me to be extremely unjust.
I would ask the Seanad to consider what kind of people are concerned here. These people are elderly people drawing pensions consequential upon many years of what up to then was considered honourable service, and they have been granted a pension despite the various regulations and pitfalls which might have excluded them, and having been for their declining years granted this pension, they commit some offence of which they are found guilty. A court deems a certain penalty warranted, and they serve their sentence. Having served it they come out and they have nothing in the world—no pension, and very little chance of getting employment at that age and in those circumstances. Therefore it seems to me extremely inhuman that they should be deprived of their pensions, and that their wives and families in particular should be deprived of this source of income. That, in fact, would be inflicting upon them a double punishment for the same offence—that they should be punished once by what the court regards as adequate, and a second time by what the provisions of this Bill lay down.
I suggest that if the court says that such and such a sentence is adequate for this offence, once that sentence has been served the man ought to be able to come out with his head up and be entitled to his rights of pension.
The Minister replied, as he was entitled to, referring to sub-section (3) of this section, which allows a local authority, when it "thinks proper," to restore the allowance if the Minister "consents" to it. The Minister referred to this right of appeal, and said that any element of injustice was removed by it because the Minister could always restore the pension. But I would say in the first place that the Minister cannot restore the pension unless the local authority thinks fit. I suggest that for the unfortunate man in those circumstances, having come out of jail, to have to go and persuade his local authority, and go to interview his county councillors or members of the corporation, for the purpose of getting them to decide that it was fit and proper to ask the Minister to consent to the restoration of his pension, is to subject him to humiliating conditions which are not warranted by the circumstances. I suggest that is to subject him to humiliating conditions which are not warranted by the circumstances, and which, in some cases, would lead to all kinds of not very edifying lobbying.
The Minister made it clear that he and his successors would always, in a case like this, when they were asked by the local authority, agree to give back the pension, provided that the convicted person showed himself contrite, and did not show himself to be in a frame of mind in which his offence might be "continuing." I suggest that in desiring to judge matters in this way the Minister is asking for too much power for himself and his successors. I do not think that that sort of power should be vested in any one person.
I am quite prepared to vest it in the courts, and if such a person is "continuing" the offence in the sense that he again commits it, then he can be brought to the courts, charged and, if found guilty, convicted and sentenced. However, to give a Minister power to decide whether or not sufficient repentance for his error has been shown by a man, before his pension can be restored to him, seems most unjust and even dangerous. Furthermore—and I put this to the Seanad before and I hope the Seanad will agree with me now—I would regard a pension as being in a sense, a part of a salary, a deferred part of a salary. I think many not very handsome salaries are accepted because portion of the salary is regarded as being deferred, and is to be used as pension.
I regard pension rights as being part of the conditions of employment of a pensionable post. I would regard the pension as something that has been earned, very like savings in the Post Office. I think the Minister will agree with me that it would be very unjust to say that any man who served a jail sentence of a certain length should be deprived of all his savings. Yet the Minister will probably recollect that that used to be the law, up, I think, to 1870. It used to be the law in this country, under the British administration, that a man, on being convicted of being a felon, had to sacrifice all property rights. As far back as 1870, however, it was recognised by the Legislature that it was an unjust concept that a man should be deprived of his property because of being convicted of an offence. Therefore the 1870 Act changed that.
I suggest that to deprive a man of his pension is to deprive him of a property-right which he has earned as fully as any savings which he has managed to put into the bank or Post Office. The pension is part of the job. It is something earned, and to deprive him of it is to deprive him of a property-right vested in him by reason of his long service. Consequently, I would urge the Minister very strongly to consider dropping this section altogether.
Is it not true that when the question of loss of pension is at issue, in the case of a person being tried for an offence, that fact is invariably taken into account by the judge and due allowance is made in that connection in passing the sentence, whatever it may be? I have seen quite a number of such cases. Where the judge finds out—and he is bound to find it out; he would be told by the lawyer or the counsel for the person being tried—that if the prisoner is convicted and gets penal servitude for 12 months he will lose his pension as well, that fact is taken into consideration. Consider a court passing a sentence and knowing that the prisoner will lose his pension. I suggest that it must be taken for granted that, in such circumstances, a judge will sentence him to 12 months only if he believes the prisoner deserves it. The loss of the pension is, therefore, part of the punishment he gets. With regard to the period of 12 months, I suggest that in nearly all cases—except where the offence is very grave—the judge will not sentence a prisoner to 12 months or penal servitude.
I support Senator Sheehy Skeffington very strongly on this matter. I think that what the Minister said on Senator Walsh's amendment in regard to amending the law on wills is equally true on this section, because this section sets out to amend the criminal law. The Minister professed great disapprobation at dragging in the law of testamentary disposition in this Bill. It is equally objectionable to drag in a serious amendment to the criminal law on a Bill of this kind. It is very unjust and goes against the whole spirit of the Irish law courts and the Irish Constitution.
Over and above the statutory penalties which are provided for offences in criminal law, the Bill imposes an additional penalty not foreseen by the drafters of the original Acts. Senator O'Connell has made a good point but, at the same time, I think it is two-edged and that it could be turned in our favour on this matter. If the judge, in sentencing a person, takes into account the probability that he will be deprived of his pension, what he is really doing is taking into account something about which he is not completely certain. The judge does not know whether, under sub-section (3), which we have been asked to take into account, the pension may or may not be restored. Therefore, as there is the possibility that the pension may be restored, if the judge takes the loss of the pension into account in sentencing a person and if, at a later stage, an application is made to the local authority and the Minister under sub-section (3), it would be open to them to say: "We would restore the pension but for the fact that the taking away of the pension has already been taken into account. We would be upsetting the decision of the judge if we were to restore it. The judge gave a certain sentence because he thought the pension would be taken away and now, if complete justice were to be done in this matter, if the pension were restored the person should be brought back again before the judge to get an additional sentence."
It seems to me that a provision of this kind is exceedingly unjust. It is inconceivable that it would apply in any private pension scheme, either contributory or non-contributory. I cannot think of any case where a provision of this kind exists in any scheme. As Senator Sheehy Skeffington quite properly said, these pensions are quasi-contractual. People gain them after years of service and accept lower salaries because the office carries a pension than they would in a similar office where they would have to make provision for their old age.
There is no doubt at all about it that, from the legal point of view and from the Revenue Commissioners' point of view and from the financial point of view, a pension is deferred pay and that is part of the total consideration which a person gets for the work which he provides for the person by whom he is employed. As Senator Sheehy Skeffington said, if people made provision for their old age in a different way, I think the Seanad would be horrified if they were deprived of their savings. If a man were to take out an endowment policy which would provide him with a sum which would produce an annuity, retiring at 65, and if he were convicted of a criminal offence, if the insurance company were to say that they would not pay the annuity, I can see the outcry there would be by lots of people against the great injustice. Certainly the insurance company would not get away with it.
If a man were to scrape up year after year enough money to buy investments he would not now be deprived of the income of these investments, if he were unfortunate enough to commit a criminal offence. As Senator Sheehy Skeffington has said, up to a comparatively recent period, the felon lost all his property; there was complete confiscation of all property on conviction for crime. That was dropped, and now I suggest that this principle which is enshrined in this Bill is, in its own way, quite as objectionable as that principle that was dropped many years ago. We should be liberal. We should be at least as liberal as the people who took away forfeiture for felony which was part of the common law.
I want to make one more point. Senator Sheehy Skeffington has already made this point in a rather different way. That is, that if this section is carried into effect, the people who pay the penalty for crime will be the dependents of the convicted person. The convicted man himself will be maintained in more or less comfort in prison, but his dependents, his wife, children and other people depending on him, will not only be deprived of their income during the time that he is serving his sentence, but of the family income for the rest of his life. It seems to me that is a very bad case of vicarious injustice, that if A. commits an offence, B., C., and D., who are innocent parties, should have to pay the price.
I am not impressed by sub-section (3). I agree with Senator Sheehy Skeffington. In the first place, it involves a double appeal to two different tribunals, a double element of discretion. He has to satisfy both the local authority and the Minister that the remission of the sentence— because that is really what it amounts to—is desirable and, if the crime is a crime that carries any sort of social stigma, the Minister and the local authority may feel that they are in some way or another condoning something which is disapproved of by public opinion in restoring the pension and, therefore, the scales would be weighted against the man.
The last point I want to make is this. If we are told by the Minister, as we may be told, that this penal clause is in other Government pension schemes, I am not impressed by that. If it is, then I say they should be amended. Two wrongs do not make a right and I certainly think that this is a most unliberal and unjust provision. It offends against the whole spirit of the common law and the Constitution; it punishes a man twice for one offence and punishes innocent people for an offence they have not committed. I call on the Minister seriously to consider dropping the section.
I should like to add one or two remarks in support of what Senator O'Brien has said. I think it is an aphorism of Burke that magnanimity in politics is not seldom the truest wisdom. If you are persuading public servants, on the one hand, that they should be diligent and faithful and, on the other hand, penalising them when they fall into bad health through being diligent and faithful and if you are, at the same time, providing that people will be penalised twice for the same offence, if they have the misfortune to go to jail, you will have a bad class of public servants developing in this country. You have to be generous in these matters. It pays off, if no other reason could be urged. You would have a more contented community and more contented servants serving that community. To adopt the actuarial argument every time seems to me a great weakness in the Minister's case.
There are three reasons why I think this section is not a good section. They have been given already and I do not intend to go over them again, but just to give a new angle on them. The first is that the pension which would be cancelled by this section has been paid for by the officer through his contributions during his working time. It may be said, of course, that he has only paid in half. That is true, of course, of any contributory pension fund, and in such cases there is no provision for cancellation of the pension for any reason after retirement of the official concerned. It is his in right and nobody can take it from him, no matter what offence he commits.
In connection, with that point, it strikes me that if an officer has exercised the provision of Section 51, that is, has surrendered portion of his allowance, his wife may be entitled to part of the allowance, and I do not see exactly what will happen if Section 64 should eventually apply to that person. Would he lose the surrendered portion? Would it affect the portion he has surrendered to his wife?
On the second point, I am sorry to disagree with my colleague, Senator O'Connell. It is the point that the fact of the loss of pension would be taken into account by the judge dealing with the case. It is wrong that this sort of thing should be brought to the attention of the judge. He should judge on the merits and should not be persuaded to impose a different sentence, on the grounds that, if the sentence is 12 months, the person concerned will lose his pension. That is bad in principle. The person should be entitled to his pension by right, no matter how he offends afterwards.
The third point is the question of appeal to the local authority. We will all agree that it would be most undesirable that a man who was prosecuted, sentenced and lost his pension should then have to go to the members of a local authority, canvassing them to restore his pension. It would be despicable. The offence may be very serious. It would mean that he would have to go for judgment, not alone before the judge who sentenced him, but, when he comes out of prison, to go for judgment and appeal again to every member of the local authority.
No. This is an executive function.
I stand corrected in that respect, but still it is most undesirable that he should have to appeal to the city or county manager and I do think that the Minister should withdraw the section.
Might I make just one last point? It is that the section is undesirable, though it probably would very seldom come into operation. It deals only with people out on pension. It would be most unusual that such people would be sentenced to imprisonment with penal servitude or hard labour, or sentenced to imprisonment for more than 12 months. Even so, I think the section is undesirable and I do not think the Minister should press it. I think he should withdraw it.
Mr. Douglas
I should like to add my voice to that of Senator O'Brien in urging the Minister to accept the amendment. I would prefer if an amendment could be put down on the Report Stage which might meet Senator Sheehy Skeffington's amendment. I remember making a statement on a Bill recently which I knew was out of order, but if this amendment is accepted, my statement here is in order, that is, that I deplore the procedure under which a Minister in another Department takes over the right of the Department of Justice. If this section is incorporated in the Bill, the Department of Local Government or the local authority will be taking over a job which should be left in the hands of the Department of Justice. It is entirely up to the courts to determine whether a person is guilty or is not guilty and to decide his punishment. The Department of Local Government should not be in a position to perform that duty. Accordingly, I would urge very strongly on the Minister to accept this amendment and withdraw the section.
I want to associate myself with the mover and supporters of this amendment. I think the Bill will make a better Act, if this section is either amended or withdrawn.
One would imagine there was some innovation in this Bill and that, for the first time, a penal clause was appearing in it. That is not so. Under the Military Pensions Act, as amended by various Acts, the same provision applies—that, once a person is convicted, he automatically loses his pension. That applies under the 1948 Act—the very Act we are trying to amend.
Is there a contribution for military pensions?
Of course there is. It is one of the reasons why soldiers are paid so poorly.
Would they pay 5 per cent. or 7 per cent?
I could not tell you. Under the 1948 Act which was introduced by my predecessor, the same penal clause exists, and again, under the Civil Service legislation, the same clause exists. We are not trying to victimise individual pension rights of some juvenile. We are dealing with a pensioner who is over 65 years of age and who is a criminal. We are dealing with a mature man. He must be convicted of an indictable offence by a judge and a jury and he must receive a sentence of 12 months or more. Do not forget that.
Or two months' hard labour.
Yes, but the term of imprisonment must exceed 12 months.
Any term of hard labour at all would suffice.
It must be an indictable offence, which is an important thing. The man must be tried by a judge and jury. That is very important. He is tried by 12 good and loyal and true men. Remember when this man is convicted and sentenced, he is kept at the expense of the State. I am quite serious. The State contributes 50 per cent. of the expenditure of the local authority. That includes expenditure on pension rights, and so on.
Extend that further and say, if he is hanged, he would have to pay for the rope.
Let us be serious about the matter. You want this man to be given a pension while he is a convicted criminal.
After he comes out.
Immediately he is convicted, the executive officer of the local authority can there and then restore his pension to his wife and children, subject to the sanction of the Minister. The pension may be restored forthwith, if the case is a necessitous one. What is more, if there is an allocation of the pension as between the husband and the wife, it will not affect the wife's allocation. I feel certain that any county manager or executive officer who may have powers delegated to him will automatically restore the pension to the wife and children, or to any other dependent in necessitous circumstances. I think that is but reasonable. When he comes out himself, the man may have his pension restored by applying to the executive authority and with the consent of the Minister. This is a contributory pension. The man does not earn his entire pension. If he were contributing the full pension, he would be required to pay 15 per cent. of his salary, not 5 per cent.
He loses it all.
Not necessarily.
Unless the Minister restores it, he loses the whole thing.
He may lose it. But he may have been drawing it for a good many years while committing the same offence undetected. We are dealing only with criminals and we are not punishing them. We are giving to the local authority, subject to the Minister's consent, power to pay pensions to those who are entitled to them. That is the section.
The section gives power to take away the pension.
The pension may be restored right off the reel. I think that is reasonable. It is exactly the same section as was incorporated in the 1948 Act and the same section as applies to military service pensions. Certain things have been said about lawyers. The law agents of the Department of Local Government and of the various other Departments with whom I have consulted have all advised in favour of this section. There have been no representations whatever from lawyers, who usually represent defence as well as prosecution, in favour of dropping this section. I am not taking away from the very fine arguments put forward by the Senators in favour of this amendment, but I myself have some little experience of dealing with cases like this, and I can assure the House it is a very reasonable provision.
I shall not delay the House. I speak again with some hesitation. I did not mean to do so because I thought the case had been so cogently supported by other Senators, particularly by Senator O'Brien. But I feel driven to speak again. When the Minister, as an argument for maintaining this section, tells us it was included in an Act which it has now become necessary to amend, that does not seem to me to be an argument at all, unless you take it as an argument for rejecting the whole Bill, because if we think that certain features of the 1948 Act were inadequate and should be changed, I would say this feature stands out among them, and we should take the opportunity of amending it that is offered to us by this Bill, with Section 64 omitted.
The Minister's reference to this convicted person as being a criminal, and to the fact that he knew a lot about this kind of person led me to think even more that I did not like at all this decision about the restoration of pension rights being left in the hands of somebody with such an attitude. I think the proper attitude to the convicted criminal who has served his sentence ought to be that he has every right to try and rehabilitate himself, no matter what the nature of his crime. I think we ought in all equity agree with that. He should not be treated as a criminal or treated on any other terms, in all justice, than as an ordinary citizen.
I see in the background of the Minister's attitude that the pension is regarded as a kind of charitable donation given to the officer who has worked for many years. Most Senators who spoke agree with me that it is not a charitable donation, but something given as part of the salary and something for which the person concerned has worked. It is a type of deferred payment and the Minister would not stand for his being deprived of it, if the man had put the money into an annuity or into savings. I, consequently, propose this amendment and I would still hope that, perhaps, the Minister would accept it, and, if he does not, that the Seanad will pass this amendment and so amend the Bill in this way.
Mr. Douglas
I have listened to the Minister's speech and what he has said has completely convinced me of the justice of Senator Sheehy Skeffington's amendment.
Tá
- Burke, Denis.
- Butler, John.
- Carton, Victor.
- Cogan, Patrick.
- Davidson, Mary F.
- Guinness, Henry E.
- Hawkins, Fred.
- Hayes, Michael.
- L'Estrange, Gerald.
- Lynch, John.
- McGuire, Edward A.
- O'Connell, Thomas J.
- O'Reilly, Patrick.
- O'Sullivan, John L.
- Prendergast, Mícheál A.
- Ruane, Seán T.
- Walsh, Louis.
Níl
- Bergin, Patrick.
- Crosbie, James.
- Douglas, John Harold.
- Murphy, Dominick F.
- O'Brien, George
- Sheehy Skeffington, Owen L.
- Sheridan, John D.
Next Stage?
I understand from the Minister that he is anxious this Bill should become law by 1st April and, for that reason, he desires the remaining stages of the Bill now. However, I will leave it to the House.
I think we had a solemn assurance from the Minister that he would consider amending Section 10. We left it on that understanding. He gave that assurance this afternoon. I think I was the last speaker and I summed up the position on which we left the section.
I think it is but right that I should explain the last thing I said on the section was that I had heard no arguments which would convince me. I think I clearly stated that.
But that the Minister would consider it.
And I have done that. I have considered it with my officials while the division was taking place.
I should like to oppose the suggestion that we should take the next stage now. I feel that the Minister ought to be given more time to consider, since the time he has had so far has not produced fruit.
I certainly would not like to press the matter.
I certainly was under the impression that the Minister did promise to consider.
Very well. We will leave it at that, then.