Vol. 46 No. 12
Before we take up consideration of the Committee Stage of this Bill, I wish to say that I consider recommendation No. 6 to be out of order because it tends to impose a charge on State funds. The Senator has been communicated with to that effect.
SECTION 1.
I move recommendation No. 1:—
In sub-section (1), line 15, before "step-father" to insert "father-in-law, mother-in-law."
I do not propose to speak at any length on this recommendation. It deals with the definition, for the purposes of this Bill, of a member of the family in order to make it clear to what particular members of the family a retiring civil servant can make a surrender in order to grant some of his pension to that person. In this Bill the Minister has, quite rightly, given a limited definition of a member of the family and to a great extent he has given reasonable limits.
The point I want to make now, and which I made on the Second Stage, is that if the father, mother, step-father, step-mother, are to be included among those to whom the retiring civil servant has a right to grant portion of his pension, then, in all equity, the mother-in-law and the father-in-law should be included. I mentioned cases of possible hardship where, perhaps, a civil servant might be a widower with a family of children. He may have been helped by his mother-in-law to bring up those children and she may, in fact, have acted to the motherless children in the capacity of a mother. All we would do by passing this recommendation is to give such a civil servant the right, if he so desired, to make over portion of his pension to the mother-in-law or the father-in-law. This is simply an enabling clause to give him a right: it does not compel him to do anything. In view of the possibility of certain cases of that kind, it would be unjust to exclude, as the present Bill does, the mother-in-law and the father-in-law.
The House should appreciate that this is a Bill to enable an allocation of pension to be made in the case of a civil servant retiring between the ages of 60 and 65 years. The number of cases in which a person retiring at that age would have, first of all, young children, such as Senator Sheehy Skeffington visualises, and, secondly, a mother-in-law or a father-in-law surviving would, I think, be very small. It would be hardly worth while extending the classification, particularly when I remember that this is a Bill that has been largely agreed with the people concerned before coming to the House. I think it would be hardly worth while to extend the classification for the extremely remote contingency that is there.
I think I must not have made myself clear when I referred to the possibility of a widower with young children. My suggestion is that such a widower whose young motherless children have been brought up with the assistance of his mother-in-law might, in gratitude, feel later on, when he is retiring, that he might like to leave portion of his pension to a woman who, in fact, has acted in a very close capacity inside his family. It is true that the number of cases in which it would arise would be small, but no smaller, surely, than the number of cases in which his father or mother would be a beneficiary. I do not feel the Minister has answered the case because the father-in-law and the mother-in-law are, presumably, in the same generation as the father and mother, both of whom have been included.
The father and mother in the applicant civil servant's own family? I do not accept the view which Senator Sheehy Skeffington has just put forward that there should be provision in this Bill whereby an allocation of pension should be made by way of gratitude. That is not the intention, in my view, or the reason for this allocation Bill, or the reason for pensions.
On the question of their being of his own family, that does not apply to the step-father or step-mother, both of whom are included by the Minister.
Is the Senator pressing the recommendation?
Yes.
Recommendation put, and declared negatived.
Division.
Will those Senators who are supporting the recommendation please stand in their places?
Senators McHugh, F.H. O'Donnell, Sheehy Skeffington and Stanford rose in their places.
The Senators will be recorded as dissenting.
I move recommendation No. 2:—
In sub-section (1), line 32, to delete "otherwise than on the ground of ill health".
This recommendation deals with Section 3, sub-section (1), line 32, and it stipulates that the surrender——
If the Senator will excuse me—would we not be in a better position if we dealt with this and the next amendment together? The two are the same.
With respect, not quite.
I thought I would be saving the Senator, but if he sees a distinction, very well.
I see a distinction here because this present sub-section cannot make it clear that the surrender cannot be made by an established civil servant, if the reason for his retirement is ill-health. It seems to me that a civil servant might be retired on grounds of relatively minor ill-health, a sort of disability which might make him unfit to continue his work as a civil servant, but which might in no way reduce his expectation of life. If we allow this sub-section to stand unchanged, we say that any civil servant who retires on the ground of ill-health cannot make such surrender as this Bill provides for.
I can imagine a civil servant retiring on grounds of ill-health, such as impaired eyesight or even blindness, which might prevent him doing his work, but which would in no way reduce his expectation of life. I could imagine a civil servant being retired on grounds of deafness—I recognise of course that in some Departments it might be regarded as an asset to have a permanent civil servant who would be prepared to turn a deaf ear; nevertheless, if his deafness was such that he could not hear the Minister, one would imagine that that might be sufficient to have him retired on grounds of ill-health but such deafness would not constitute a limit to his life or make his expectation of life less. I could imagine many cases where a civil servant would suffer injustice if he were to be excluded from the provisions of this Bill on such grounds. I would go further and say that the civil servant who is forced to retire through ill-health, presuming the ill-health is not his own fault, would find it rather hard that he should be automatically excluded from this Bill.
The whole principle of this Bill is based on an actuarial transfer of the amount of a pension from the civil servant himself to the dependent nominated by him, that is, the actuarial equivalent. This Bill, as I made it clear on Second Reading, is not a Bill to increase the pensions of civil servants in any way. It merely enables a civil servant to make what is, according to actuarial tables, a change in a pension payable solely to himself, to a pension payable partly to himself and partly to his dependents by the equivalent in actuarial value of the same value as he has. Those tables, as I tried to make clear, are prepared on the basis that the civil servant is in good health. If the tables were not prepared on the basis that the civil servant was in good health, they would have to be made out on a lesser expectation of life and then the civil servant in good health would be penalised accordingly, because he would be so to speak, brought down to the level of the actuarial table taking bad health into account. I am sure that none of us wants that and I am quite positive that Senator Sheehy Skeffington does not want it. That is on the wider issue of ill-health. The whole principle of the Bill is that the civil servant who is allocating his pension is in good health and accordingly the best possible actuarial table applies to him for his benefit.
Senator Sheehy Skeffington has made a specific case in relation to a person who is overcome by blindness. I am advised that none of those who advise me can recollect any such case happening in their memory in the Civil Service. The only possible way of considering the case Senator Sheehy Skeffington has made would be specifically to list certain illnesses, if one might call blindness an illness, and to see how those illnesses would affect the actuarial tables of life expectancy. I do not regard myself as being competent to assess the effect of things like deafness, blindness and other afflictions of that nature on the expectations of life, but the general amendment the Senator has tabled deals with the problem as he has made it now. It would have to be done on the specific naming of certain illnesses. If certain illnesses were named, I would have to get much more capable technical advice than I myself am in a position to give on the sub-section, on the principle that it must be the best posisible table for the civil servant. That is an integral part of this Bill. If it was not the table produced for people in good health, then the effect of producing a new table would be to drag the civil servant in good health down to the level of the table with the lesser expectation of life, which is something none of us would wish and which certainly is not contemplated and should not be contemplated.
I see the point the Minister makes about the actuarial tables and I notice the tables have not, in fact, been decided yet. I think the Minister made it clear that he was "going to approve" of the tables. I do see the point that in a "bad life" the amount of pension accruing from the surrender part would be less, over all, for all civil servants, if you admit the person who has a lesser expectation of life. I made it clear, however, that some people at least who would be forced to retire on the grounds of ill-health might not have a short life expectancy at all, but they are excluded by this point. The other point is that the Minister stressed that, if we exclude people who retire from ill-health, we are going to "drag down" the people who are more healthy. It is a question of striking an average and one will presume that the big majority will be in good health, despite the overtime they have to work and so on. The numbers of those in bad health will not be so very big. Therefore, it will be a question of——
Even the average will be lower than the figure for the good health cases.
I am prepared to concede that, but that does not mean a reduction in the pension.
A reduction in the allocation.
Yes, a reduced calculated amount deriving from a certain surrender. I should like to feel that the healthiest civil servants, so far from protesting that they do not want to be "dragged down," would be very glad to help their less healthy brothers and sisters in the service and would be glad to share a little part of the risk for the purpose of giving aid to those who may be forced to retire on grounds of ill-health.
That is an entirely new principle which I can hardly accept on this Bill.
Is the Senator pressing the Recommendation?
Yes.
Recommendation put and negatived.
I take it that the Senator is satisfied?
On a point of order, I understood that the terms in which the Chair put the proposal to the House were: "That the words proposed to be deleted stand." I understand that a large number of Senators said "Níl", which would mean that my Recommendation was in fact passed.
The Cathaoirleach said that those in favour of the Recommendation were to say "Tá" and the contrary, "Níl". However, the Recommendation is really lost.
With regard to sub-section (1) of Section 3, I should like to say that, although I have not put down a Recommendation,—
Is the Senator speaking on sub-section (1) of Section 3?
There is a Recommendation by Senator Sheehy Skeffington to sub-section (4).
There is a Recommendation, No. 3, by Senator Sheehy Skeffington and there are also the later Recommendations 4, 5, and 7. We will deal with the Recommendations first.
I move Recommendation No. 3:—
In sub-section (4), to delete paragraph (b).
This is not quite the same principle, because previously we dealt with the exclusion from this Bill of any civil servant forced to retire on grounds of ill-health. In this paragraph, we say that: "A person shall not be entitled to make a surrender under this Act unless the Minister decides that the person is of sound health." In the earlier paragraph, we excluded all civil servants who might be forced by reason of ill-health to retire. Here we not only do that but exclude all civil servants who are not in moderately good health, or whose health is not 100 per cent. A1. Here we are excluding an even larger number of civil servants. I imagine the Minister will make the same case—an actuarial case.
I would suggest that, by leaving this clause as it is we are excluding from the right to assign portion of their pension the civil servants who are most in need of this Bill. In other words, we are more or less rendering the Bill nugatory if we confine it to people who will be least likely to avail themselves of it.
The case I made in regard to the last recommendation, in my view, covers this one completely and I could not usefully, I am afraid, add anything. It is actually the same principle.
Might I ask the Minister a question? Among the retiring civil servants in sound health, the ones whom alone at the moment we are covering, what percentage does the Minister think will avail themselves of this right to surrender part of their pensions?
That is a very hypothetical question, Senator. We can only pass the Bill and see what proportions come along. The association of the civil servants concerned wish to have this Bill. Therefore, its purpose is to enable such proportion as may want it to take advantage of its provisions. Any estimate I might make would be so much a guess as not to be of any use.
Even on an actuarial basis?
An actuarial basis assumes that you have statistical material on which you can make an actuarial table. There will be no statistical material with regard to the number of people who apply until this Bill is in operation for some time.
I should like to press this recommendation for the reason that, if we leave in this clause, we are excluding the major portion of those civil servants who want to take advantage of the Bill, the very ones who are in poor health, the very ones who are most anxious to surrender some of their pensions for their dependents or widows. These are the very ones to whom we are going to say: "This Bill is not for you." The Minister says that the circumstances for which such a surrender will be made will very seldom arise because it is expected the person concerned will survive the widow or dependents.
Senator Sheehy Skeffington is making a case on the basis of a person who has a much lower expectation of life where normal health is concerned. When he says that such a person cannot take advantage of this Bill, I think he is right. This scheme is not intended to cover that type of case. The type of case that has been worked for with the association is that of the person who is in normal sound health and who wants to provide for a class of dependents. If what the Senator had in mind were to be put in the Bill, then it would be a different Bill. What the Senator said is not relevant to this Bill or the scheme before the House in this Bill. What the Senator wants is to do something that the Bill does not provide for. What he wants to do with regard to people under average expectation of life is to have a separate pension scheme. I am not going to comment on that, except to say that is not the allocation scheme that has been agreed in respect of this measure. What the Senator has in mind is a separate scheme altogether, or what should be a separate scheme, unless he is going on the basis that he wants, as I thought he indicated a moment ago, compulsorily to provide that the civil servant in sound health will agree to forfeit half of his allocation moneys for the civil servant in bad health. That may or may not be a good principle, but it is a principle of compulsion on civil servants that I am not going to accept in this Bill.
I may misunderstand the Bill, but, as I read it, a retiring civil servant who sacrifices, say, a quarter of his pension, does so in order that that quarter—or its actuarial equivalent—will be paid after his death to his widow. I think I am right in saying that should his wife die before him, he has permanently sacrified portion of his pension to no avail. I suggest that the number of cases in which that will occur will be greatly increased if we insist that the retiring civil servant shall be "in sound health" on retirement. In other words, the fund stands to benefit considerably more in such circumstances than on the ordinary actuarial basis. It will be benefiting now by the contributions of certain healthy retired civil servants by reason of the fact that its coffers are going to be filled by those surrendered portions of their pensions which will never be paid out, owing to the fact that the grantee will have died before the retiring civil servant, who is required by this clause to be "in sound health" at the time of his retirement.
This section of the Bill to me seems to be regarded in a wrong-headed fashion. I heard informal discussions on this matter, a great many years ago, on civil servants retiring in sound health who desired to hypothecate a certain part of their pensions in case the wife or other dependent lived longer than themselves. This Bill should be regarded as something in the nature of a miracle, because it is really in the nature of a miracle when the Department of Finance agrees with anybody to do anything——
I submit that is not in order.
——whatever the political complexion of the Minister may be. This Bill enables the civil servant in sound health, without expense to the State, to do something with his own money on the best possible terms that can be got. The civil servant, who, on retiring, allots portion of his pension to his wife, should she survive him, is, in effect, not making a sacrifice, but, putting it in a more colloquial way, is making a bet, and this is what they want. As the Minister says, if you bring in this question of civil servants' wives having a pension, it is getting into another realm altogether.
This Bill is intended to get for the civil servant who allocates part of his pension the best possible terms for his dependent, by the exclusion from the process of anybody not in sound and normal health, that is, for his age. Since the civil servants have for a number of years wanted this and since the Minister now agrees to give it to them, without any expense to the Department of Finance, except whatever small allocation for administration is involved, you cannot alter this Bill so as to make it more favourable for people not in sound health. That is a different question.
The principles in this Bill are not in the least new. As far as I know, the same sort of options have been available in the British Civil Service for decades and are available in other superannuation funds also. I think what Senator Sheehy Skeffington would like to see, and I am in agreement with him on this, is that there should be pensions for the widows and orphans of civil servants.
In another Bill, though.
That is another thing altogether, and I agree there should be something like that, but I do not think such a pension can be secured under the general terms of this Bill. I have experience of superannuation funds which provide such an option and I can tell the Senator that the proportion who will avail of the option to spread the risk will be very small indeed. Still, as the Minister has said, it is something that was desired by the representatives of the Civil Service at this stage and I think they are pleased that they have now got this option. They do, I expect, recognise it would be far better if they could have widows' and orphans' pensions, but this Bill does not provide these. I hope we will some day be discussing such a Bill, but we are not doing so now.
There is one question on which I should like to have my mind clarified, on the point whether the Bill is best in its present form. Would the Bill not mean in its present form, without acceptance of the amendment, that a civil servant who is compulsorily retired because the Department wants to get rid of him, is, in effect, in a better position than the civil servant who, through no fault of his own, is in poor health and consequently has to retire?
Does the Senator mean a man who is dismissed.
No, compulsorily retired.
I should like to support what the last speakers have said. It seems to me that the scheme the Minister has introduced is what I would call quite normal in industries of which I have had experience: I would agree with the other speakers also, that if what Senator Sheehy Skeffington is seeking were to be put in, it would be quite a different form.
With regard to this question of agreement with the Civil Service as to the application of the terms of this Bill, it is a good thing for any Minister to be able to reach an agreement with a large body of people like the Civil Service; but it is quite possible to reach general agreement with regard to a measure like this and then to find particular features of it on which there was no agreement. I should like to ascertain from the Minister if this question of health was specifically discussed with those representing the Civil Service and, if so, were they in agreement on it.
I do not want to delay the House, but I should like to hear the Minister's answer to that last question of Senator Kissane's. I should also like to hear the Minister's comment on my suggestion that the Civil Service superannuation fund is going to be unduly swollen by this Bill and by this clause——
No.
——for the reason that you are going to permit some civil servants to surrender portion of their pensions, which they will consequently not be receiving, which will temporarily increase the Central Fund, and which will permanently increase it if a large proportion of these survive the people for whom theoretically they were making such a surrender, that is to say, the wife, in most cases. By insisting, therefore, that the retiring civil servant be himself in 100 per cent. sound health, we are in fact, increasing the chance that a number of these surrendered amounts will never be paid out and, quite logically, quite mathematically and quite actuarilly, you are going unduly to increase the amount in the central superannuation fund.
The whole basis of actuarial tables is that they take into account the fact that certain people are going to die before others and the tables are framed on the basis that the fund makes up in one case what it loses in another. You will have one case of a civil servant who retires at 65 and who has allotted portion of his pension to his widow. That pensioner dies at 67 and the widow lives on until she is 87, so that the fund in that case obviously loses heavily. On the other hand, you may have a civil servant who retires at 65 and dies at 66, and his wife also dies at 66, In such a case, the fund will obviously gain. The words "actuarial table" mean that they are the best calculation anyone can make, so that the fund does not lose, that it does not gain, and that it keeps in balance. The Senator's last case—I understand the case perfectly—has no logic in it and presupposes a lack of knowledge of the manner in which actuarial tables are complied.
With regard to Senator Kissane's point, naturally any association representing the Civil Service would have liked that I would have added something more than an express allocation. I made it quite clear that I was not prepared to give an Exchequer contribution. Taking the basis, therefore, as being one of allocation and not of Exchequer contribution, the association saw the white print of this Bill before it was brought to the Houses of the Oireachtas and raised no point on any of the details before the Seanad to-day.
I am afraid I have not made myself clear.
The Senator has had a number of opportunities. They are running out.
I take the blame. But I had hoped that I had made it clear that we are insisting upon a standard of health for the retiring civil servant, but not for his wife. Therefore, it is not true to say there is just as much chance of the wife dying before him as of his dying before her. There is more chance, under the terms of this Bill, of her dying, because the Bill will apply only to healthy civil servants. There is no question of its applying only to healthy wives. Therefore, on an average, there is no question but that the Minister is wrong when he suggests that there is just as much chance of a wife surviving a healthy civil servant as there is of her surviving an average civil servant. We are reducing the possibility—
A reductio ad absurdum.
I suggest that in a large number of cases a sacrifice portion of the pension will have been made forever by the retiring pensioner who may long survive his theoretical "beneficiary" for the very reason that the standard of his health is guaranteed at the outset.
Is the Senator not arguing against the principle——
I am arguing against the principle of insisting upon a high standard of health in a person who is making theoretically an allocation for somebody who is in fact less likely to survive him.
It is perfectly obvious that the civil servant, if he has not a wife who has a reasonably good expectation of life, will not opt for this at all.
He may not know.
If that is the Senator's argument, then it is hopeless to try to persuade him.
Could we not take the word of the actuary on this point? Much as I respect Senator Sheehy Skeffington's intellect, I feel we must be guided by actuarial estimates. The Minister made it clear that this is actuarially sound. No matter what Dr. Sheehy Skeffington may say, I do not think he has convinced the majority that he knows more about it than the actuary.
Does Senator Sheehy Skeffington still hold——
Yes, despite my failure to convince the Minister.
Recommendation put and negatived.
Division.
Will those Senators who want a division please rise in their places?
Dr. Sheehy Skeffington rose.
The Senator will be recorded as dissenting.
I move recommendation No. 4:
In sub-section (4), to delete paragraph (e).
I admit I can quite see the arguments against the point which I want to raise. As the sub-section stands, if a civil servant nominates his wife to receive a portion of his retiring allowance, and nominates her while he is in good health, and subsequently dies before he has retired, in that event, she receives nothing. I fully understand the arguments against what I am putting forward. However, it occurs to me that there might quite easily be cases in which a man, having nominated his wife in that way, while he was still in good health, might be under the impression that he had definitely provided for her future. In such a case, it might be a very great hardship if he were to die unexpectedly and his wife were to be left quite unprovided for.
I fully appreciate that, if my suggestion were adopted, it would mean a certain additional burden on the actuarial tables. However, I am putting forward the point merely for consideration. It is the case of a man in good health who nominates his wife, believing that he has made some provision for her in that way, and then, through his unexpected death before retiring, leaves the widow without any provision.
The Senator's case depends on the civil servant not understanding what he has done. I do not think I should like to accept the view that civil servants are all as innocent as that. There is the reverse side of the Senator's case. A civil servant gives a notice of allocation to his wife, shall we say, and, before he retires, his wife dies. If he decided to allocate one-third of his pension to his wife and then if she dies before he retires, that deprivation of the one-third of his pension is void and he gets the whole pension. Therefore, it works both ways. You must have some date on which it becomes operative for the purpose of reaching finality and for the purpose of making the computation. I think the date of retiring is as fair a date as you can get, making clear that if there is a case, such as Senator Cox mentioned, that if a person dies before he retires the allocation is void then, equally, if the dependent dies before the date of retirement, the allocation is also void and the civil servant concerned gets the full amount of the pension.
I accept that.
I move recommendation No. 5:—
In sub-section (4) (e), to delete all words after "if" in line 27 to the end of the paragraph and substitute either the established civil servant making the surrender, or the person benefiting therefrom, should die before the first payment arising from such a surrender becomes due.
My reason for proposing this recommendation is not to change the purpose of the clause, as I saw it, but to express it in terms that I thought more understandable. In the Bill the sub-section reads:—
"Notice of a surrender shall become null and void if, on a day on which the person wishing to make a surrender under this Act is an established civil servant, either that person or the proposed grantee of the pension under this Act dies."
I suggest that that should read:—
"notice of a surrender shall become null and void if either the established civil servant making the surrender, or the person benefiting therefrom, should die before the first payment arising from such a surrender becomes due."
I think that covers the meaning of the other clause. I said on the Second Stage that, having read it four or five times, I reached that conclusion. I may be wrong. At column 951 of Volume 46, No. 11, of the Official Report, the Minister said on the Second Stage debate on this Bill in this House:—
"I am not quite satisfied that it is even so clear as the Senator suggests. Perhaps that is something lacking in my interpretation of it. We will consider it between now and the Committee Stage."
The Minister granted me, therefore, that it was not very clearly worded. I notice he has not in fact suggested any better wording himself. I venture to hope that my wording covers the intention and that it will be found to be simpler than the original wording.
I made a mistake when the Senator was speaking on this on the last occasion. I thought he was referring to another sub-section altogether which I got examined previously and which was, in fact, amended in the Dáil to make it clearer.
With regard to the Senator's argument, so long as I am sitting in this chair, I am not entitled to go into any question of interpretation of statutes or of law. I rely on the Parliamentary Draughtsman, and I accept his draft, while thanking the Senator for affording me the opportunity of considering his.
Is the recommendation being pressed?
I should like some comment from the Minister. He has explained to us that he made a mistake, although I did in fact read out the last paragraph. He said:—
"I must confess I was a little bit startled by Senator Sheehy Skeffington suggesting that, though that paragraph was badly drafted, it was quite clear what it meant."
I thought the Senator was referring to another section.
He was startled to hear after I had read it out that I said it was clear if carefully read. Now he says that it is quite clear. I put it to the House that if they read it now, they will find it is far from clear. I think I was supported in that by Senator Cox.
I do not believe I said that it was not clear. I may have said that it was not happy wording. It seems to me to be clear.
Recommendation put and negatived.
I move recommendation No. 7:—
To delete sub-section (5).
This seems to me to be the least defensible sub-section in the whole Bill. It is rather a long sub-section and I would like the attention of the Seanad for it. What it amounts to is that, if a retiring civil servant decides to make a surrender on behalf of a certain named dependent and if subsequently the Minister finds out, after the time of the granting of the pension, that the person in question was not a dependent, then the surrender would still be valid, but the grantee of the pension will not get the payment. In other words, a civil servant will be docked the quarter of the pension which he has given up, but the grantee will not get one penny of it after the time the Minister ascertains that he was not a dependent. I would suggest that it is the job of the Minister to ascertain that before allowing the surrender. If the Minister fails in his duty so to ascertain, then I suggest it is monstrous to victimise the civil servant, and the grantee, after taking his money from him and then not allowing the money to be passed on.
I think it is rather absurd because the definition of "dependent" in Section 1 is a person wholly or in part dependent on the earnings of such a person "wholly or in part"—so that if the civil servant can prove that he was giving say 1/- a week to a particular dependent, then that dependent is in part dependent, and it is a very extraordinary thing that if the Minister should ascertain later that he was not in fact giving him 1/- a week the surrender of portion of the pension will go for nothing, and the dead civil servant will have given up perhaps one-quarter of his pension for nothing. By the terms of this section it can be said later on: "We have just discovered that this person was not really a dependent and consequently we are going to keep all the money the dead man sacrificed."
I do not want to curtail the discussion, but it seems to me that, while the Senator's amendment could not be ruled out of order, the arguments go against the foundations on which the Bill is based.
I do not want to delay the House, and I realise I have put down a lot of amendments, though I do not really feel like apologising for that, because I think this House is the place for it.
No, but the Senator has been told the Bill is based on actuarial calculations and his argument seems to me to be disregarding that.
With respect, no. I may not have made myself quite clear. If the Minister at the time of surrender, taking whatever precautions he pleases, has found that the person is a genuine dependent then for the purposes of this Bill the person should be considered a dependent forever; but the Minister is clearly to have it both ways. He wants to have a person accepted as a dependent, but at the same time, if he discovers, years afterwards, that a mistake has been made, he wants to preserve the right to deprive the grantee of any portion of this pension, and to claim the right to retain the surrendered portion of the pension. I think that this is a very bad sub-section and wholly unjust, and is a rather extraordinary way of trying to save the Minister from the effects of his own past mistakes, if he makes any.
I do not think the Senator's last speech does any credit to him or any credit to this House. He used the word "monstrous". I think his speech is monstrous. I cannot treat the Senator as an ignorant man who has not read the Bill; he has read it most carefully and he must be aware of the details of sub-section (5). In it, the civil servant concerned is asked to make a statutory declaration which I have said I am prepared to accept—a statutory declaration made before the appropriate Commissioner. I provide in this Bill that, if that statutory declaration is fraudulent, the claim that has been made on the basis of that declaration is to be set aside.
After the civil servant is dead.
I did not interrupt the Senator. It is to be set aside, once the fraud is ascertained. I think it is monstrous that any Senator should get up in this House and argue that, where a statutory declaration has been fraudulently made, a person should nevertheless get the benefit of that fraud. I do not think it does any credit to this House.
The Minister has used strong language——
The Senator was the first to use it.
He also said he did not interrupt me, but now I am afraid he has lost the right to make that claim. As I was saying when I was interrupted the Minister has used strong language, and that he had perhaps felt justified in doing so because my own terms had been strong ones. I feel that they were justified. Let me read the last portion of the sub-section for the benefit of the House:—
"If the Minister ascertains at any time after the grant of the pension that the grantee was, in relation to the person, not a dependent, the surrender and pension shall be deemed valid, but the grantee of the pension, in case payment of the pension has not commenced, shall forfeit the pension and, in case payment of the pension has commenced——"
that means, mark you, after the civil servant is dead and gone——
"shall forfeit so much thereof as remains unpaid."
That means, in the case of a dead civil servant, someone will come forward and say that this part-pension should not be paid—perhaps by reason of not having the right relationship, in which case perhaps you would claim fraud, as the Minister did, using strong language, but perhaps also on the ground that the person was not even "partly dependent" upon the dead civil servant. On those grounds, the Minister is asking us to give him the right, after the retired civil servant is dead and gone to stop payment to the wretched grantee in this niggardly way, the grantee who is deriving benefit not from the money of the Exchequer, but from money sacrificed by the retiring pensioner from his own pension. Therefore, with respect, it still seems to me that this is an attempt to go back and rake up the question as to whether or not the Minister was right originally to accept such and such a person as a dependent. It might of course be a case of fraud, but the Minister has not said "fraudulently" in the Bill; it might arise not from fraud but from a misapprehension, or it might be that it was no longer possible to prove one thing or another, and it seems to me consequently that the clause as it now stands is, shall we say, singularly ungenerous.
I have made it clear beyond question that I am going to accept as evidence a statutory declaration by the civil servant concerned. I have made that clear beyond question. If the civil servant is not prepared to tell the truth in that declaration, I cannot, as the trustee of the public purse, be humbugged in that way.
I should like to support the Minister in this case. It seems to me to be an impossibility that a person would swear a statutory declaration that a person was a dependent, either wholly or partially, unless that was in fact the case. It seems to me that if it were possible to swear such declarations without any consequences following, it would be a most unfortunate position.
It has occurred to me, I must say, that the Minister might think it would be better, instead of "if the Minister ascertains", to say "if in fact it is ascertained". That would leave the matter to the court, if necessary.
Is the recommendation being pressed?
I wonder would the Minister accept the suggestion of Senator Cox, to leave it to the courts rather than to the Minister to ascertain?
That is a different question.
I am just asking the Minister through you, a Chathaoirleach.
I am so used to being told by other people that it is a bad thing to allow too much to the courts.
Is the recommendation being pressed?
Yes.
Recommendation put and negatived.
I have not put down any amendment, but I thought I should mention, and perhaps the Minister might consider, the provision under which a surrender may be made to the wife or one dependent. The Minister has inserted in Section 7 an extremely wise provision in aid of children. It might happen that a civil servant, or a person entitled to superannuation, might have to deal with two or three children. I fully understand that the provision he has made for each of them would have to be extremely small. I further see that if this idea were to be adopted, it would mean very many consequential amendments. However, I thought I should mention it, so that the Minister might consider whether it would be possible to give the retired civil servant a right, if there were more than one child, to make provision for both, so that the provisions of Section 7 might be applied to all children.
May I ask the Minister this question? In Section 3 and in several other places in the Bill, it is laid down that, where examination is required, the person who is having the examination shall pay the medical fee. Will it not be the chief medical officer to the Civil Service who will carry out these medical examinations? In view of the fact that there is a medical officer who would normally be carrying out these examinations, I wonder why the Minister has inserted that provision, since it is contrary to insurance practice usually for the examinee to pay the fee. I wonder why the Minister has specified that the fee shall be paid by the person who has to undergo the examination. Perhaps the Minister could consider that.
As far as Senator Cox's point is concerned, I can see the Senator's point clearly in relation to Section 7, if I may, with your permission, a Chathaoirleach, slightly anticipate, as it is not possible to deal with Senator Cox's point without making some reference to Section 7. Section 7 is framed on the basis that you have the pension allotted first and then you switch from the pension into what I would call the educational endowment for the children. You must have the single pension first. If I were to accede to the case made by Senator Cox, I would have to deal with it in a different way because I think it would be undesirable to have a number of small pension sums which might not be commuted in the way in which they are in Section 7.
I can see considerable difficulties in doing it from an administrative point of view on the basis on which the Bill is framed, but I admit quite frankly that the case made by the Senator appeals to me. Section 7—containing the method of providing an educational endowment in lieu of a small pension for the whole life of a very young child—was in fact my own personal child, as I was particularly interested in it. Between now and Report Stage, I will see if I can meet the Senator's point of view, but I think it would be more properly met on Section 7 than on Section 3 (1). What I have in mind is, if I can do it, in some way to fix the one allocation and divide the allocation afterwards on an educational basis. That might be better; but I do not know that it would be possible administratively to do it.
It occurs to me that if it were possible, the civil servant might make application to come under Section 7 in favour of all his children.
That would be a bit difficult from the point of view of administration but I will have a look to see——
The Minister is aware that this Bill must be returned to the Dáil to-day?
In my enthusiasm for the point raised by Senator Cox, I overlooked that. All I can say I will do is to ask the House to return the Bill in due course to the Dáil and if it is feasible to do what Senator Cox suggested at a later stage, whenever another similar Bill comes along, we will bear it in mind.
So far as Senator ffrench O'Carroll's point is concerned, there will be cases in which fees will be payable which will go into the Exchequer. That is why the provision is there, which may mean they will have to go out again afterwards perhaps, but there are specific provisions in the terms of reference for the payment of fees in that way. It is not a question of my making a profit, if you like, on the transaction.
When Senator McHugh spoke earlier, he asked me a question on another amendment which I inadvertently forgot to answer. He referred to the case of the civil servant who is compulsorily discharged. I think there have been three cases—and only three —since the State was established and we hope there will not be any more, but if there are similar cases, we shall have to try to meet them administratively by ensuring that the provision will be available between the moment of decision and the moment of discharge.
I want to ask a question for the purpose of clarification, as I do not see the matter made clear in the Bill. It arises out of the provision for the case when the grantee of such a surrender dies before the established civil servant, who has already retired, dies. It is clear that the surrender then becomes null and void under the terms of this section. I should like to know if any provision is made for back-payment for refund to the civil servant of the part already surrendered in anticipation of a grant to a person who, in the event, dies before he or she can benefit from that grant? In other words, he is making a sacrifice of a quarter of his pension.
I am sorry if I am giving the Minister a headache. I shall try to make my point clear. Suppose a man retires at 65 and decides to sacrifice a quarter of his pension for his widow. When the man is 70, having during those five years sacrificed a quarter of his pension, his wife dies, and, therefore, his surrender becomes null and void. Is there provision for his getting a refund of the portion of his pension that he has lost for no purpose?
This is repetition. That has been answered already by the Minister.
I did not hear it being answered.
I can only suggest with great respect that Senator Sheehy Skeffington should have a talk with an actuary as to how tables are made up. First of all, the surrender does not become null and void. The effect of the surrender has been exhausted. It is an entirely different thing. It becomes null and void if the grantee dies before the civil servant retires. The case mentioned by the Senator is a case where the civil servant is 70 years of age. He is then retired five years. The effect of the surrender has become exhausted when the grantee dies after the civil servant has retired for five years. I am afraid that it may be my deficiency, but I am not going to argue about that. I am unable to make myself any clearer than I have done already as to the way actuarial tables are built up. If the Senator still has any doubts on that subject, perhaps he would consult an actuary who would be much more competent than I to explain the basis.
I move recommendation No. 8:—
In sub-section (2), to delete paragraph (b).
I should like to deal with recommendations Nos. 8 and 9 together, because recommendation No. 9 is consequential on recommendation No. 8. My recommendation here is the deletion of paragraph (b) of sub-section 2 of Section 7. I entirely agree with what Senator Cox said about Section 7, that it is an imaginative and useful section. It was made clear on the Second Stage that it meets a very real need, that in the case of a minor, who is a dependent, the retiring civil servant might like to sacrifice some of his pension but might not like to spread the payments over the whole life cycle of the dependent but would prefer to restrict it to a shorter period, for the purpose of educating the child, for instance. For that reason, as Senator Cox said, this is an admirable section.
But in sub-section 2 of Section 7 we find that there are certain restrictions, and one of them is the substitution of a more limited period of payment. Let me read the paragraph. "A substitution shall not be made unless the Minister decides that the dependent is in good health." This has nothing to do with the expectation of life of the retired civil servant, on pension so far as the superannuation scheme is concerned. This is a case of ensuring that the dependent child—this refers only to minors—shall be "in good health." I could probably see— although in this I am open to correction—what was in the minds of the draftsmen who did not want a sacrifice of this kind to be made on behalf of the child who is in a very bad state of health, and might perhaps die before the full amount could be paid, but there are other forms of ill-health, one of them being mental retardment of some kind, which is not necessarily of a serious kind. It would be possible to imagine a child suffering from some mental affliction which would by no means be reckoned to be a fatal one, and which would yet prevent the Minister deciding under this paragraph that the child was "in good health," and, being so prevented, that particular child, suffering from that kind of disability, being precluded from the benefits of this excellent section. It is for that reason I propose this recommendation and the other which is consequential upon it.
We have had all the arguments here this afternoon about the basis of the tables depending on good health and I do not want to weary the House by repeating them at this stage. There is one thing I must say, in view of the fact that Senator Sheehy Skeffington has again and again used the word "sacrifice". There is no question of any sacrifice in this Bill. A civil servant is not compelled to do anything; he is not compelled to give anything up. He is given an option or, as Senator Hayes said, he is making a bet. He is given the option of using his judgment whether it is better for him in certain circumstances to divide the money he will receive for his pension himself in the ordinary way as between himself and another dependent. How anybody can logically describe that as a sacrifice is, I am afraid, beyond me. It is an optional matter for the civil servant. It should not be referred to in that way. The arguments we have heard from Senator Sheehy Skeffington on this section are exactly the same as those to which I replied earlier.
The Minister claims that nobody can call this a sacrifice, because the civil servant is not "compelled" to make one. I do not share the Minister's view that the word "sacrifice" can be legitimately used only if one is forced to the action. On the contrary rather, it cannot be used legitimately if the act of the person involved is compulsory. I am quite aware that the civil servant is making a voluntary forfeit of part of his pension and I submit that that is a sacrifice, but the other point has not been met by the Minister at all. He did not advert to the fact that this excellent section, which enables a man to substitute for a life annuity a sum calculated over a short period of years, does not operate should the beneficiary minor in question not be in good health. He has not referred at all to the fact that such a child dependent, as I suggested, might be suffering from some minor mental affliction. The Minister has not justified at all on any actuarial basis, though he likes to throw the word around, that a child suffering from some mental affliction is excluded from the privileges accorded by this excellent section. It is all very well for the Minister to say that an actuary could explain that, but I would ask the Minister if he cannot give us some better justification than he has done for the exclusion from this section of a dependent child who happens to suffer from some mental affliction.
Is the Senator pressing the recommendation? We have had a good deal of play with words—rather too much.
Yes, Sir.
Recommendation put and negatived.
Division.
Will Senators in favour of a division please stand?
Senator Sheehy Skeffington rose.
The Senator will be recorded as dissenting.
In line 29, on page 4, the word "and" comes at the end of the section and seems to indicate misleadingly a connection with the following paragraph. I think the printer should so arrange that the word "and" comes on line 30.
