I feel very diffident addressing myself to this subject after the impressive speech of Senator Kennedy who obviously knows the subject so well. His contribution was enlightening. There is also the fact that most of the points I would wish to make with regard to this Bill are probably more appropriate to Committee or Report Stage than the Second Reading. Therefore, I may be leaving outside of comment matters which I would wish to refer to later as being defects in the Bill.
If the Minister will forgive me I am going to comment first, as my occupation would entitle me to, on the point Senator Kennedy and Senator Dooge have already made about packing into the Schedule what I calculate are more amendments than there are sections in the Bill. This is a very convenient thing for a draftsman to do, but if there are to be 40 amendments to an Act which has 58 sections, there should be a codifying Act so that we will all know what we are talking about. We can be told, or work out for ourselves quite easily, what the amendments are, but if such a Bill were followed by a codifying Bill it would make it clear what was intended.
I could conceive of someone ill-advised enough to seek my advice as to what his rights were under the Redundancy Payments Act, 1967 to 1970, and all I can say is the task of telling him what he would be entitled to get would be enormous for me, simply because I would have to start rewrithing the original Act in a most laborious way by reference to this Bill. We have a public service employed for the purpose of serving the community. That public service should serve the community with a law which is easily understood by those who have to advise people as to their rights under it. I take grave exception to the form which the Bill takes. My second objection is to the language used. I do not have the text of the Minister's speech to the House yesterday before me, but I hope he will not mind if I refer to some language he used in another place.
It is not proper to comment on the ability of judges but it will not be found by any member of the bar that the ability of Mr. Justice Kenny is underrated—his ability is very considerable and recognised extensively in legal circles—and he determined that by a provision drafted by the Parliamentary Draftsmen in 1967 meant something. He determined what it meant. It must have been a disagreeable decision for him to reach because he found against an unfortunate lady named Anna Ryan. Anyone reading the facts in that case—the judgment which I have before me was delivered on 17th July, 1969—will, I am sure, appreciate the pain he must have experienced in having to deliver the judgment because of the form of the Act, the language used in it. If I were the judge, and I am in the fortunate position that unless they make extensive amendments to the law relating to the matter I can never become a judge, I would have made the same judgment. A judge's duty is to find and determine what the law is, to apply justice, and in relation to civil matters he cannot be merciful at the expense of other people, in this case the Limerick Health Authority.
When the Minister came to speak on this matter in another place he read a text or delivered an address in which he referred to the judgment, without specifying what it was, but I think there is no doubt what judgment it was, in the following words:
The main purposes of this Bill are firstly to provide for a new definition of redundancy to meet the circumstances arising from a decision of the High Court in 1969 which gave a narrower interpretation to the term "redundancy" than was originally intended and to provide for the compensation of workers adversely affected by the High Court decision in the period before the amending legislation comes into effect.
In fact, the judge interpreted not narrowly but interpreted, in my view, correctly what the Act meant, and what the Act means is the job of a judge to discover by reading the language contained in the Act. The language contained in the Act in this case forced him to decide this. The workers who were adversely affected were not adversely affected by the judgment of Judge Kenny, they were adversely affected by the Act that was enacted by the Oireachtas in 1967. They were not adversely affected by his interpretation of it. He decided what it meant. It was open to Anna Ryan to make her appeal which she did not in fact do, being well advised, I am sure.
The point I am making in this matter is one which I think it is appropriate for me to make. We get assurances from time to time in this House that this sort of legalistic thinking is simply a nuisance. Let us understand what we are doing here. We are enacting Bills whose language will determine what the intention of the Legislature was and that will be determined by a judge of the High Court or the Circuit Court or the Supreme Court as the case may be. If they make a decision it is not their decision which adversely affects whoever is affected by the decision; it is the draftsman's, the Minister's, the Government's, his advisers'. It is they who have failed, not he who has determined what they meant, unless you change the Constitution and change the law. It is recommended by many lawyers—not by me, may I say—that the judge should be free to do what he is forbidden to do, that is, to look at what took place in the Dáil and the Seanad and see what was said to understand what was intended. There are some people who think that this ought to be open to him to do. It is not open to him to do that under the law of our land, unless that law is changed by an Act and comes through the Parliament of which this Chamber is part.
There are provisions in this Bill which will have a retrospective effect. I do not think I am called on to point out, or, indeed, it might not be permissible for me to point out too closely, where under these sections these retrospective provisions take effect. I just question, firstly, the wisdom of these retrospective provisions and, secondly, even their constitutionality. If I refer to one section in particular then perhaps I shall make my point clear. Section 20 deals with the order which the Minister may make:
This Act shall come into operation on such day as the Minister appoints by Order.
What is the effect of that on matters which have already been determined? If this Act comes into effect in August of this year how does that effect matters that were determined, say, in August of last year? What is the effect on the responsibility of the official assignee in bankruptcy, an executor of an estate, a liquidator of a company? What is the effect if such a person has correctly disposed of all the resources available to him according to the law which applies to the distribution at the time he makes it? This is not law. This is a Bill proposed to be enacted. He need take no account of it. He should take no account of it. What is his position? It is by no means clear as to what is the effect of retrospective provisions on such a person who does his duty according to the law. I think the Minister ought to consider this very carefully.
I am not a person interested in a Judaic religious prophet who was maniacally interested in the control, if not in the distribution, of material things, a man called Marx, but I am open to conviction on the merits of socialism. I am not yet convinced of the merits of socialism until socialists realise and incorporate in their policies a recognition of the importance of freedom which seems to me to be endangered by the proposals of fully committed socialists. It is fair to say of Marx that he was one of those who was conquered by what some poet called the "pale Galilean Christ". Why he was called a "pale Galilean" I have never understood because I would not have imagined he would have been pale in any of the circumstances of his life. But this embarrassing figure of Christ has raised for me problems with regard to my own observation that, in fact, what stimulates people to deal rightly and sensibly with the things they have got to deal with is that they are going to make a profit out of it. It seems to me from my experience that things are better looked after if they are looked after by people who have an interest in them. Yet I come to the "pale Galilean's" observation about the "camel getting through the eye of the needle" and I say to myself very often how right he was about the camel and the eye of the needle, because I think the profit motive leads them on to a better exploitation of the economic resources than will be made by somebody who is on a salary and who has no direct interest in the resources that are being exploited. At the end of it all, if it is relevant, I hope its relevance will appear soon. They are not very attractive characters as a result of their operations. I am coming to this point that the camels who cannot get through the eye of a needle are in difficulty, but all things are possible to God. The camels who cannot get through the eye of a needle without assistance of a special kind from God now include, I would say, the large mass of our population. The employees of companies are now as well off, I will not say as kings were once, but certainly as were aristocrats and the sooner that is said and said often to them, the better.
The relevance to the Redundancy Bill is this. In the context of a situation where wage inflation, call it income inflation if you do not want to face the facts, is determining workers to go abroad, putting them out of employment, making them redundant, making the economy operate in very difficult circumstances, we should approach this whole matter of the fund and its management very conservatively and guard it against any unnecessary claims. This Act of 1967 came too late. It followed the usual pattern of coming two years after the British Act. I compliment the draftsman in this case on producing a better drafted document than the British Act was, because the British draftsmen are extremely bad draftsmen. I am in favour of this Bill.
As an example, in section 10 the onus of proof is shifted firmly to the employer. I think this is right. It is his job and it is easier for him to comprehend what his duties are and easier for him to keep all his records. I am in favour of all kinds of social legislation which have the effect of creating conditions which force the bad employer to do what he ought to do. The profit motive will often lead the bad employer to do things, which should not be done by him and which are done to the disadvantage of his workers. I am, therefore, wholly in favour of provisions for redundancy.
I am also in favour of having an economy that is well managed. I am also in favour of seeing that the rate of taxation here is not so high as to stifle endeavour. I am also in favour of attracting capital, of encouraging savings, of having resources made available to companies, so that they can, by having these resources under their control and in their hands, use them for the development of the economy and expansion of industry and further employment. The 58 per cent effective rate of taxation does not help that situation, and any provisions in this Bill which are not strictly necessary to see that workers are properly provided for are provisions which, I think, are not financially sound. One such occurs to me as being something which could affect, what I identify capital as being, the demand for labour. That is what capital is. It is effectively the demand for labour and without capital being kept and preserved and savings being added to, the possibility of increased employment is limited or reduced.
I give one example. In the law of the land there is a general provision that if somebody breaks his contract there is one advantage the other person cannot get. He cannot be better off as a result of the breach of contract than he was before it was broken. Under this Bill, as I understand it, a worker can be better off if he becomes redundant if there is a proper pension scheme providing for him. There is no off-setting provision in this Bill. There is no provision in this Bill whereby the employer who establishes a proper pension scheme can offset the redundancy payment that, by statute, he is now bound to make to the employee. I do not think an employee ought to be better of because he has become redundant. I may be misunderstanding the provisions of the Bill, but it seems to me he can be better off by being redundant. He can have his pension rights. I am sure the Minister will tell me where I am wrong, and I hope I am wrong. I would like to be told explicitly where this is provided for. The possibility is there and if the possibility is there, it is what a judge will determine this Bill and that Act to mean.
Senator Dooge yesterday referred to the case of a building contractor who did everything possible for his employees before finishing up his business. There are countless examples of cases which could occur where this might happen to other people. What of a farmer who drops dead in his field? He has not made a will and there is nobody entitled to give a notice on his behalf, to take advantage of the provisions. There should be some provision of a discretionary kind given to the tribunal, such as there are in other Acts of which we are all aware, whereby it could be recognised that the circumstances under which failure to give the required notice would not deprive the farmer in question, or his family, from any rights he might have had to get payment from the fund, in a situation where his death caused the redundancy.
I mention this matter of the cause of redundancies first because there may be many psychological reasons justifying and explaining it. The motivation is one thing, the fact is another and that is all I am concerned with. There is an excessive demand for income by people who are putting others out of employment by so demanding it. Mismanagement of the economy is another reason.
A third matter very relevant to this Bill was referred to yesterday. What has been happening about retraining? I understand that the persons whose job it is to go and retrain only did so this week. Perhaps my date is wrong, but it is a recent date anyway. What have we been doing over the years? The fact that workers are not retrained prevents them from getting other jobs. It makes them redundant to the cost of the State and of everybody involved in these contributions. I think the age at which you can become redundant is over 41 years. Is this incorrect?
