Special Committee Defence Bill, 1951 debate -
Wednesday, 19 Mar 1952

SECTION 47.

Captain Cowan

I move amendment No. 50 :—

To delete sub-section (2)

This is a very important matter. My view is that an officer may be retired for reasons to be set down in the Act. If an officer is to be retired there should be certain specified grounds on which he is called upon to retire or is compulsorily retired, and they should be set out very clearly here. The sub-section says that an officer may, for any prescribed reason, be retired by the President. In other words, the Minister may make a regulation setting out that an officer may be retired for this, that or the other reason.

Chairman

Is it not the whole theory that an officer holds his commission at the pleasure of the President ?

Mr. S. Collins

That is the fiction

Captain Cowan

That is the theory but the President cannot say to an officer: " You must get out." He can only tell him to get out for a reason, and the section says he can do it only for a prescribed reason. The section says that the Minister will prescribe the reasons in a regulation, and I say that the reasons should be set down very clearly in the Act.

Mr. S. Collins

This is the first point on which I am not in agreement with Deputy Cowan. I envisage that it might be in the best interests for both the Minister and the officer to be retired if the particular reason were set out in the regulations as distinct from the Act. There may be circumstances of a special nature which might prompt the Minister to advise the President to retire an officer, and it might be just as well if they were not generally known outside a limited circle.

Mr. Traynor

I agree with what Deputy Collins says. There might be circumstances in which it might be necessary to add to the reasons. It is highly desirable that the Minister should have the power.

I can say that when it is necessary to operate that sort of power, it is operated with all due consideration for the individual and it must be remembered that the men recommending its operation are the comrades of the man against whom it is being operated. My experience all the time has been that the power is operated in the most humane possible manner and the individual is often advised as to what he should do rather than there being a drastic application of the regulations and an immediate operation of them against him.

Captain Cowan

The Committee seems to be against me on this amendment and I do not propose to press it to a division.

Amendment, by leave, withdrawn.

Captain Cowan

I move amendment No. 51 :—

In sub-section (4), paragraph (b), line 41, to delete the words " subject to such conditions as may be prescribed,".

The section provides that subject to such conditions as may be prescribed, the Minister may permit an officer who is required to retire on a particular day to continue after that date to serve for such further period, not exceeding 122 days, as he may fix in respect of him and such officer shall retire on the expiration of the further period so fixed. My amendment simply means that the Minister has not to make regulations to govern himself in the exercise of that power. In other words, the Minister may for reasons which to him seem sufficient permit an officer to continue to serve, but will not be limited to the regulations he makes himself to govern himself in regard to it.

Mr. Traynor

The Deputy appears to have missed the main point of the sub-section, which is to allow a slight play for pension purposes when an officer is retiring on age grounds. This mamixum extension of 122 days is given only when an officer, as a result, completes a further year's pensionable service. It is not given in any other case. The words " subject to such conditions as may be prescribed " cannot be deleted because the regulations will, as at present, lay it down that the extension is permissible only when it results in a pension benefit. If it were a question of giving five years' additional service, as the Deputy proposes in the next amendment, the way to do it is to fix the retiring age five years higher.

Captain Cowan

The Minister has answered my objection to the form of the section by saying that there is in existence a particular regulation dealing with service for officers who may get an extension to qualify them for a higher pension ; but when we pass this, the Minister can make any regulation he likes. He is not bound simply to give these 122 days for pension purposes. He can make any regulation he likes dealing with it, and what I say is: let the Minister decide every case on its merits, rather than prescribe a regulation which he may have to amend and amend to deal with each particular case.

Chairman

Is the Deputy pressing the amendment ?

Captain Cowan

I cannot understand the Minister's objection to the amendment, but if he does not accept it, I will not force it.

Amendment, by leave, withdrawn.

Amendment No. 52 not moved.

Captain Cowan

I move amendment No. 53 :—

In sub-section (5), page 35, line 2, to delete the word " retire " and substitute the words " cease to be an officer ".

This is only a matter of drafting. I think my words are better. If an officer is appointed an officer for five years, he ceases to be an officer at the end of five years, unless recommissioned, but there is no obligation on him to retire. He just ceases to be an officer.

Mr. Traynor

The word " retire " is used deliberately so that an officer may be eligible for any benefit by way of retired pay or gratuity under the retired pay scheme for which his service would qualify him. The entitlement would not be so clear cut if the amendment were accepted.

Captain Cowan

An officer may be appointed for three or five years, not for the length of time that would enable him to obtain retired pay. That may be done for some special reason, but if it is longer you might as well commission him and be done with it.

Mr. Collins

Does this arise out of short service commissions in the Air Corps ?

Captain Cowan

It is something wanted in the Act, as far as I can see. I do not think there is much precedent for it. I suggested this as an improvement, but if it is not needed I will withdraw it.

Amendment, by leave, withdrawn.

Captain Cowan

I move amendment No. 54 :—

In sub-section (6), line 6, to delete the words " with the permission of the Minister ".

I do not think the Minister would have any right to prevent a man from retiring if he is entitled to retire ; and if he is entitled to a pension I do not think it could be denied him. Therefore, this phrase should not be there : " with the permission of the Minister ".

Mr. Traynor

This is to enable an officer to retire before reaching the retiring age. It may be for personal reasons, but the Minister's consent must be obtained. There could be cases where an officer was anxious to get out of the service because of some charge pending against him and, in that case, the Minister would refuse permission, as it would be helping the officer to evade a charge he would otherwise have to face. That is a reason why the Minister's permission must be obtained.

Captain Cowan

I do not think that that is a good reason. A subsequent section provides that he may be tried by court-martial within a specific period after retiring.

Mr. Collins

Is there not some provision at present whereby after a minimum amount of service an officer can qualify for a minimum pension and if he elects then for any reason of his own betterment—something offered to him outside of considerable domestic advantage to himself—he can seek the Minister's permission ?

Mr. Traynor

Yes, after 12 years. Normally, permission is given. There are cases where you have to withhold it, where charges are pending or where a vast amount of money has been expended on an officer's technical training and where he may be going out as a result of that training to take up a very much more remunerative position.

Mr. Collins

That arose in the case of some N.C.O.s in the Air Corps.

Mr. Traynor

Yes, they have to pay their way out, to meet the expenses involved in their training. Provided the State was recompensed for the outlay, the permission would not be refused.

Captain Cowan

This section introduces a new principle, that a man can retire only with the permission of the Minister.

Chairman

That has always been the position.

Captain Cowan

I do not think so. I do not think it is in the old Defence Forces Act.

Mr. Traynor

Sub-section (2) of Section 8 of the Defence Forces Act, 1937, said that an officer of the Forces may, in accordance with regulations made by the Minister, retire. The regulations require the permission of the Minister.

Captain Cowan

That Act was passed without any great advertence to what regulations might be made. The officer may retire in accordance with regulations but that could not be interpreted to mean that he had to get the Minister's permission. This is an important matter. When an officer is commissioned he is entitled under law to resign and also to retire after a certain number of years' service, which entitles him to a pension. That is a right.

Chairman

Has he a right ? Would the Minister clear that up ?

Mr. Traynor

An officer has a right to tender his resignation.

Chairman

But he has no right to have it accepted ?

Captain Cowan

He must. If he tenders his resignation it cannot be refused.

Chairman

I think it can.

Mr. Traynor

He tenders it to the Minister, who submits it to the Government. The Government, on the advice of the Minister, may advise the President to accept or refuse it.

Chairman

Yes, but by merely tendering his resignation an officer cannot get out.

Captain Cowan

Yes.

Chairman

No.

Captain Cowan

The Act of 1923 says very clearly that an officer may resign but until relieved of his duties he continues. He now tenders his resignation to the President but until it is accepted he is not relieved of his duties. It is as clear as can be that the resignation cannot be refused.

Chairman

The use of the word " accept " seems to imply that the person accepting has the right to object.

Captain Cowan

No.

Mr. Traynor

The 1923 Act was superseded by the 1937 one. An officer may tender to the President the resignation of his commission. The President on the advice of the Government may accept or refuse to accept the tender by the officer of the resignation of his commission.

Mr. Collins

I can think of cases where it was refused.

Captain Cowan

In no case can the President refuse to accept the resignation of an officer. Under the 1923 Act which carried on until 1927 the resignation must be accepted and there was no provision by which it could be refused. The Act of 1937 was consequent on the passing of the Constitution, when the Defence Forces legislation was brought into line. The President was substituted for the Government and at that stage, without anyone noticing it, this section was put through. My view is that an officer cannot be retained in the Defence Forces without his consent. I can see the Minister's point regarding retirement where it may involve the paying of a pension. The Minister could say that he would not accept the retirement but that the man might resign, in which case he would not be entitled to a pension ; but there is no such thing as keeping an officer in the Army without his consent.

Chairman

It has always been a principle in military forces that the controlling body has complete power over personnel and, once they have contracted, they are bound by the contract. In this particular case, it is further clarified by legislation—first in the 1923 Act by the use of the word " accept ", which seems to imply choice between accepting or refusing. It is made absolutely specific in the 1937 Act. Furthermore, in other armies it has been the custom to have control. It would be a very radical and dangerous innovation to give an officer the option of walking out at any time. In case of an emergency or civil commotion, when an officer gets an order, he is bound to carry it out—that is what he is there for, and that is why he is retained by the State—and if at that critical juncture one officer or a whole group of officers could legally resign and leave the executive high and dry, you would have anarchy.

Mr. Colley

I feel convinced that this clause is absolutely necessary. Something might happen in the Air Force, where a whole group of officers might find themselves in a position to do far better than in the Army. They might all want to get out together, leaving nobody. This clause seems to be a vital one.

Mr. Collins

I always felt it was inherent in Army control that there would be the right to accept or reject an officer's resignation. I can visualise cases of pique or temper where an officer might foolishly tender his resignation in the heat of the moment. It is a great protection to him in such circumstances for the authorities to have the right not to accept it. The resignation may not go up to Government level at all. An immediate superior may talk a bit of sense into the officer and bring him back to an even keel.

Captain Cowan

The Act of 1923 passed through the Dáil without any consideration at all. The Act of 1937 was passed with very little consideration. Now, for the first time, we are considering an Army Bill in a thorough way. The 1923 one was passed in a couple of hours, on an undertaking given by the then Minister that it would be in operation only for a year and that then a permanent one would replace it.

There is the provision whereby a soldier can purchase himself out, can be released by paying a certain sum of money. It is thought wise to have that channel of escape. It has always been the principle as I understood it that an officer obtained his commission and was free to resign at any time. I am not saying that in regard to this country only but in regard to many other countries.

Chairman

He was free to tender his resignation but there would be no obligation on the appropriate authority to accept it. That is the position in all countries as far as I know.

Captain Cowan

He cannot be kept against his will. It would be most undesirable to have an army officered by men kept there by force.

Chairman

That has been the legal position in practically every army in the world. You could not have an army otherwise. That is the position in the British Army.

Captain Cowan

I do not accept that.

Mr. Colley

In the case of soldiers purchasing out, has the Minister not got to give permission ?

Chairman

The Minister has made a regulation in that case giving the permission.

Captain Cowan

Are you going to officer the Defence Forces by men that you keep against their will ? You cannot do it.

Mr. Traynor

Or are you going to provide a means whereby in an emergency you would be left without them ?

Mr. Collins

Are you going to provide gratuitous training for potential illegal organisations whereby officers in the Army could resign for some special purpose ?

Chairman

In the British Army an officer has no right to get out save with the permission of the authority, though as a matter of policy in peace time an officer's resignation would normally be accepted. The legal position is that the appropriate authority can refuse.

I think it would be highly undesirable and dangerous to modify that establishment position. Not only in this country since the foundation of the Army, but in the British Army and in the American Army, this has been worked in the same way. All armies are the same. Especially when you come to a state of emergency, I am sure that nobody would suggest that an officer could get out.

Captain Cowan

The argument which has arisen on this amendment is really proper to Section 49 which deals with resignations. We will have another opportunity of considering the matter.

Chairman

Is Deputy Cowan pressing the amendment ?

Captain Cowan

I will not press amendment No. 54 ; I will argue the point on Section 49.

Amendment, by leave, withdrawn.

Question—" That Section 47 stand part of the Bill"—put, and agreed to.

The Committee adjourned at 6.5 p.m. until 7.30 p.m. on Thursday, March 20th.