In this case, I suppose we can take all these amendments—94, 95, 96, 97, 98—together.
SECTION 97.
There is one main amendment.
The section we are dealing with is 97.
I move amendment No. 94 :—
To delete sub-section (2).
Amendments Nos. 94, 95, 96 and 98 are all substantially the same matter and could be debated together. When I put the question on 94 we can, if you like, save the others and deal independently with them, but we can debate the whole lot together.
This particular sub-section—and in fact this particular question of forfeitures, deductions and stoppages from pay of officers and soldiers—is and has been a bone of contention in the Army for years. Under the 1923 Act there were specific provisions in respect of forfeitures, deductions and stoppages set out in the Act itself. I am speaking subject to correction and entirely from memory. Even the interpretation of those sections dealing with forfeitures gave rise to a number of complaints and it is my opinion and my view, which I advocate very strongly here, that instead of a sub-section giving the Minister power to make regulations in respect of forfeitures, deductions and stoppages, we should set out clearly in this Act the forfeitures, deductions and stoppages which may be made from pay and allowances of officers and soldiers.
The disposition of forfeitures does not matter very much, but I do know that there will be great disappointment in the Defence Forces if we pass this sub-section in its present form, because I do know that one of the matters officers and soldiers had been looking forward to for nearly 30 years was the bringing in of a permanent Bill in which there would be correct powers specifically given in relation to forfeitures, deductions and stoppages from pay. As I see it here, if we pass the sub-section as it stands, the Minister will have power to make regulations, and those regulations to a large extent will be made primarily from the point of view of the finance authorities. No matter what regulation is made the finance authorities may find it insufficient to make adequate forfeitures, deductions and stoppages, and the consequence would be that from time to time these regulations would be varied—and always varied for the purpose of making the deductions and stoppages more easy. I do know that paragraph (b) of the sub-section provides that all regulations made by the Minister under this sub-section will be laid before each House of the Oireachtas but, as I have said on other sections, that is no protection. All the Dáil can do, if these regulations are brought in by the Minister and laid on the Table of the House, is to reject them—it has no power of amendment. I am very disappointed, and I know the Army will be, that the sub-section is in this form in the new Act. I would much prefer that the specific grounds on which a man's pay can be interfered with should be clearly set out in the Act.
You are moving to delete the sub-section. That puts the Minister in the position that if he were to accept the amendment, either he would have to go without the sub-section or introduce an amendment.
He should replace it.
Would he have to recommit the Bill unless it is fixed up here now ? In other words, you will have to agree on the principle or the Minister will have to undertake to introduce an amendment.
This matter has been examined very carefully and the section represents what it is believed will meet requirements. I am afraid Captain Cowan is basing his case on the belief that everything we do is inhuman, that we are blood-suckers taking the last penny or farthing from officers and men of the Army. Of course, that is not the case at all. The officers who deal with these matters in the first instance are dealing with their own comrades and they are just as human as Captain Cowan and myself. The situations they are dealing with may be, perhaps, damage to property, loss of kit or rifles or something of that kind, which must be paid for. I do not think that there should be any difficulty about this matter. It has been given a great deal of consideration and it is thought preferable that all forfeitures, deductions and stoppages should be governed by regulations. Conditions of service and emoluments do not remain static and circumstances may arise from time to time—as, for instance, by the granting of new types of emoluments in cash or kind—in which new forfeitures and deductions may have to be provided for. To deal with the matter partly by regulations would be undesirable ; in the circumstances it is thought preferable to deal with it entirely by regulation. Lest it be thought that the Minister signs orders blindfold. let me assure the Committee that that is not the position.
This is what actually happens : A certain type of damage may have been caused—the simplest type I can think of, the one most often that comes before me, is where a man is driving a motor car and smashes it up. The cost may be £300 or £400, arising from careless handling of the car. The case is examined by the transport authorities, who assess damage, and what always astonishes me is that the sum for which the man concerned is mulcted is very much less than the actual cost of the damage. Where the actual damage is £200 or £300, the man involved may be required to pay no more than £40 or £50. If he denies that the damage was due to careless driving or to his own fault, he will normally resist the order to pay, and if he does so a Ministerial Order is sought because that is the only method of dealing with it. The military or Departmental authorities cannot themselves take a penny off the man, but they put up a case and it comes to me with all the detail that can be provided. Very often, even in the knowledge that the sum assessed is only a fraction of the total cost, I myself may reduce it still further by reason of the fact that I take into account the amount of pay the man is receiving and the length of time it would take him to pay off the total amount ; that it would perhaps have to be stretched over a year or two years. In those circumstances, I might decide, in order to minimise as far as possible the penalty without letting the individual or others like him get away with the belief that they could cause damage and go free, to agree upon a particular sum, and that is the sum that is recovered. I can assure all members of the Committee that from the point of view of dealing with this matter in a humane and reasonable way, there is no other safeguard I know of that could profitably be added to the method which operates at the present time. I oppose this amendment.
I think the difficulty arises in this matter from the fact that, in the past at any rate, the military people had very little say in practice in questions of deductions. That applied in some cases anyhow ; I do not know how it is now. But I do not see any other way the Minister can do it except by regulations. I think we will have to accept the fact as it is but in making the regulations one would like to feel that the recommendations of the man's immediate superiors, the people who would be on the spot, would, in the first instance, be carefully considered. The difficulty is that if there is a direction regarding a stoppage it is already, in effect, a regulation and it is hard to overtake it from the start.
I have nothing to do with overpayments proper. If an individual is paid more than he is entitled to, as may happen from time to time, and he finds at the end of six months that he is overpaid to the extent of £5 or £6, that sum must be recovered and it does not require an order at all. The sum has been wrongly paid and it must be recovered.
There is never any trouble on that score anyhow. It is a matter of adjustment.
Mr. Brennan
It would be serious for an individual at the end of three or four months, though.
The man will resist it, of course. When money gets into his hands it is very difficult to recover it. Naturally enough it is spent. But as far as that is concerned it is a matter between two individuals. The person who paid too much money must recover it. If not he will be mulcted for the loss. The man who got the money must pay it back.
Mr. Brennan
It is the responsibility of each soldier, if overpaid, to hand it back.
If he knows it, he ought to.
Mr. Brennan
May I ask a question on the case you have stated about the motor driver : Do the Army carry their own insurance risk ?
The State carries it.
Mr. Brennan
No outside company ?
The State does not insure in these cases. There is no outside company.
I want to put this view to the Committee. The Minister has spoken and put this whole important section on a very narrow basis. I do not want any misapprehension in regard to my attitude. This section gives the Minister power to make regulations with regard to forfeitures, deductions and stoppages. In other words, the Minister can put down in regulations that a soldier or officer will forfeit his pay for a period for some particular reason. That has nothing to do with damages. He can put down that there will be a deduction from an individual's pay of a penal kind for certain things and he can put down that certain stoppages will be made. I would just like the Committee to consider it from that aspect. The case the Minister cited of damage to a car does, I know, come up now and again. A man who is driving a car and has an accident causing damage of £250 or £300 may be ordered to pay £40 or £50, and may object to that. Such a man was hoping when this Bill came along that some provision would be made whereby there would be some judicial investigation into his responsibility for the accident. But what happens is that the civil side of the Department of Defence, not a soldier at all, decides that this damage will have to be made good by somebody and advises the Minister that £20 or £30 or £50 or more should be deducted from the soldier involved. Then the man is asked to give reasons to show cause why the amount should not be taken from him. He sends up a letter which goes before the Minister and then the matter is decided. That does not affect an awful lot of soldiers, but forfeitures and deductions can affect a considerable number of officers and soldiers. Go into any unit and you will see routine orders including forfeitures and deductions from pay. They are laid down specifically in the Defence Forces Act at present and the soldier knows what the law is and that it is laid down that a man's pay may only be touched for statutory reasons. He knows it before he joins the Army. My objection to the regulations is that if they do notcatch out a fellow to-day they will be amended to catch out another fellow to-morrow. But if what I advocate is incorporated in his Act the soldier will have the protection of the Act. I do not want the section to be considered merely on the narrow ground of damage to a car or to a barracks or things like that, which are dealt with further down.
I mentioned a motor car because in actual fact, I think, it is the usual type of case I come across.
That means the Minister has not been coming across the bulk of deductions from the Army.
I come across everything resulting in a Ministerial Order.
The minor deductions from a man's pay do not come before a Minister for consideration.
The point I want to make clear is that where there is damage to a motor car the transport officers of the Army are the people who assess the damage. Is Captain Cowan suggesting they do not do that ?
I agree they do, but they do not apportion responsibility for the accident.
They assess the cost of the damage at £500. If a man were to be mulcted for that amount of money, it would be hopeless for him, but the authorities order an exemplary fine to prevent him and others like him from using State property in a careless manner. It might, of course, be other type of property. It might be barrack windows and the appropriate Army authority would be consulted on that.
There could be damage done to a gun.
That would be a type of case. I mentioned damage to kit or loss of rifles or ammunition for which a man was responsible and for which he could not account. These deductions are disciplinary matters. If any individual is guilty of a gross offence he must be penalised and one of the most effective ways is through his pay. Otherwise it might possibly mean a court-martial and imprisonment. Forfeitures and deductions and other such matters set out in the regulations are means by which an army is preserved in a disciplined manner. If there were not such means I can only leave it to the imagination of members as to what would be likely to happen. Again, all I can say is I do not think these things are enforced in a very penal manner or that it is intended to inflict hardship on members of the Army. They are intended to enforce the discipline which after all is the rule by which the Army is maintained in an efficient manner.
Who assesses the responsibility of the driver in the case you mentioned ?
It usually arises out of a court case. For instance, two cars are involved and the court may find that the soldier was the negligent party. We have to accept that.
There is no question of a soldier who was not there at all coming along and saying the driver was responsible ?
That is exactly what happens. Somebody in the Department—he may be experienced or inexperienced—says the man is responsible.
We have three kinds of cases to consider.
It is the military who assess the damage.
But they do not assess responsibility.
The military authorities decide that. That is what the transport section is for. They must as far as humanly possible ensure that every man in that corps will be efficient and will not be neglectful of a car worth £700 or £800 and put in his control ; they must see that he will drive it in a proper manner, and that he will not negligently run it into a bank or ditch or anything like that. It would be possible that a driver out in the country might meet with an accident and have no witnesses. It is in such a case that an investigation would have to be carried out by the military.
There are three kinds of cases to be considered. The first case is where you have a big accident with a third party. There you would have court proceedings and the matter is relatively simple. The second is where a major accident involves an army vehicle and big damage is done and the military hold a court of inquiry. In that case there is formal assessment of the damage and responsibility by military personnel. The third type of case is, perhaps, as numerous as any of the others—that is, where minor damage is done. It is not worth while holding a court of inquiry in such cases but a return of the damage has to be given. In those cases what happens is that the loss is naturally reported and a direction comes down that the amount must be recovered. From the start there is a certain objection to that from the point of view of a soldier who is the " under dog." If there is a direction, " this must be recovered," it has to be recovered. Even if it is military personnel who go about seeing whom it is to be recovered from, it is started with the wrong foot as far as the soldier, the " under dog," is concerned. These deductions are of a penal nature and should not be applied unless the person concerned is proved to have been negligent. On this section, however, I see no practical alternative but that the Minister should handle it this way. All this argument is in the nature of an appeal to the Minister.
Oh, no. I want to make this clear ——
Before you go into that I want some information : In what circumstances are forfeitures made ?
That is the point I am making. Under the Act of 1923 it is clearly stated: " The pay of an officer or soldier of the Forces shall be payable without any deduction other than the deductions authorised by the Act." This was a clear section which says that a man must be paid in full unless deduction is authorised. The next section says that pay shall be automatically forfeited for absence on desertion or without leave or while the individual is in custody for an offence " resulting in a conviction " by a civil court or a court-martial, unless, in the case of a court-martial, it should otherwise direct. That meant that, even if the court-martial convicted him on the charge, he need not forfeit pay while he was in custody. That was specifically laid down in the 1923 Act. It was a protection for the officer.
In the case of the soldier it was laid down that he would automatically forfeit pay only while absent on desertion or without leave. In effect, it meant that while in prison his pay was forfeited or while in hospital on account of some injury or disease for which he is himself culpably responsible. The Act says :—
" The following deductions may be made from the ordinary pay due to a soldier :—
All ordinary pay for every day on which he is in hospital on account of sickness certified by the proper medical officer attending on him at the hospital to have been caused by an offence under this Act committed by him."
The common case that everybody knows is that of the soldier who contracts venereal disease that has to be treated in hospital. He forfeits his pay while in hospital. As to what a day was, that was specifically laid down in the Act. I want to tell the Minister, as a person who has the ear of the Army particularly in the very lowest ranks, if there was to be any interference with the principles laid down there, it would cause tremendous discontent in the Army. The Army people were anxious for the chance to come of putting in more protection with regard to forfeitures. The 1923 Act laid down that the following deduction may be made from the ordinary pay due to an officer :—
"The sum required to make good such compensation for any expense loss, damage or destruction occasioned by the commission of any offence as may be awarded by the court-martial by which he is convicted of such offence."
That is perfectly all right. Other deductions which might be made are :—
" The sum required to make good the pay of any officer or soldier which he has unlawfully retained or unlawfully refused to pay ;
The sum required to pay any fine awarded by a court-martial or a civil court ;
The sum required to make good any loss, damage or destruction of public property, which after due investigation appears to the Minister to have been occasioned by any wrongful act or negligence on the part of the officer."
All the discussion which has taken place up to the present is based on the substitution of one little sub-section for the quoted sections of the 1923 Act. One of the things I am going to fight very strenuously for is the insertion of these protective sections in this Act. They were the law for the past 30 years. What we could have done is to make some ameliorations or improvements, but I think it will cause tremendous trouble to wipe them out and simply to say : " Give the Minister power to make regulations." I am asking the Minister to leave what is the law at present in the new Act. I know the Minister is anxious and will do everything to make for a happy and contented Army. He will achieve that desire by doing what I am asking.
There is nothing in the Bill corresponding to Section 126 :—
" The pay of an officer or soldier of the forces shall be paid without any deduction other than the deductions authorised by this Act or any regulations to be made thereunder, or by any other Act of the Oireachtas."
Therefore, in this Act there is a radical change in the protection given to soldiers. The statutory protection which has protected many soldiers under the 1923 Act is not given in the present Bill.
It is all compressed into the little sub-section I have objected to.
It is argued that the effect of that is that, coupled with the omission of a provision corresponding to Section 126 of the old Act, you have sub-section (2) here which gives the Minister power to make regulations for the matters set out. That raises two considerations. First, there is no limit to the regulations the Minister can make. It is purely hypothetical, but he could decree that a man could have deducted a third of a day's pay if he did not appear at first parade in the morning. Secondly, if Deputy Cowan's argument is right, the old protection is gone. That is the argument Deputy Cowan puts up. Section 100 says that no deduction shall be made unless it is authorised by regulation.
Deputy Cowan's amendment is not clear to me in that the Act of 1923 empowers the Minister to make certain deductions and forfeitures with relation to certain provisions in that Act but it also gives him power to make further regulations.
But they are limited in scope.
I thought the 1923 Act gives the Minister power to make further regulations not specified ?
You lose your pay only by regulations which the Minister under the Act is authorised to make.
Under this present Bill the effect of Section 100 is that no deduction in pay could be made unless under regulations and, therefore, no deduction could be made unless it were specified already in print or writing over the Minister's hand. Is not that the position ? The only essential difference would seem to be that Deputy Cowan argues that only the matters covered by the Act could be touched by regulations heretofore but that this Bill gives wider power.
There could be no great quarrel with the provisions of the old Act, where the Minister had power to make regulations dealing with barrack damage, but then he could not make automatic deductions from pay by any regulations and if he dared to do it he could be brought up in court.
Is that the regular position ? Deputy Cowan made a very significant statement there. He says ——
Does the Minister think that particular portion of the 1923 Act does not give wide enough powers ?
The proposed section as drafted has the recommendation of the military authorities.
That does not answer it.
I have to presume that they are reasonable and that it will be administered humanely. The argument up to the present by Deputy Cowan, and to a certain extent by the Chairman, is that the Minister will not use these powers fairly.
Yes, and I am making it clear that it is not the present Minister——
I am not worrying about that end of it at all, but I am trying to correct it. The military authorities feel it would be necessary that this should be in the Bill. Things change and keep changing and are we to bring in an Act every time a change is necessary ? If we cannot do it by regulation, every time a change is necessary we have got to bring an Act to the House and, in the course of time, we will have an Act like the present one, a thing of shreds and tatters.
Does it mean the military authorities are somewhat stymied when it comes to certain cases of forfeitures and deductions ?
I would have to presume in some cases they are. We cannot allow that. If emoluments change, the forfeitures and deductions may have to change. The forfeitures and deductions are made by reason of the fact that somebody has committed an act of indiscipline the penalty for which is a forfeiture or deduction. I do not think they would be put up in a form injurious to a man. They are operated in a manner intended to prevent a recurrence of acts of indiscipline. Deputy Cowan has mentioned that he has the ear of the lowest ranks in the Army. Perhaps that is one of the reasons why he is arguing this case as he is. We all know the old story of the sea lawyer. The best lawyers in the Army are those who go to Deputy Cowan. They are the ones against whom forfeitures and deductions have been made, possibly because they do not take to discipline too readily.
I think the Minister when he reconsiders the words he has spoken will come to the conclusion that they should not have been used. In respect of the people with whom I have associated those words should not be used. I have experience of this in all its aspects. It is because I have that practical experience that I realise the importance of it and am putting it down. In regard to pay the 1923 Act was amended in 1924 and one amendment was put in 1942 to ensure that pay would be deducted by fine of the civil court. In fact in 30 years only two amendments have been made in respect of the pay sections. These pay sections were the fundamental protection of the officer and soldier, and I want to say very clearly, whoever he was, the military person who advised the Minister was out of touch with military opinion in this country.
I have just learned today that the Canadian authorities, who themselves have now produced an Army Act, are doing exactly what we are suggesting here, so that when you say they are out of date you are pretty——
I said out of touch with military opinion in this country. I know, having read a certain section further on, in connection with punishment, that the Canadian and other Acts are read and that certain officers who read them decided it would be a good thing to put them into this Act irrespective of our own long experience.
I said I learned this for the first time this evening.
I knew that before this evening.
When this section was drafted our authorities did not know that that happened in Canada—that the Canadians were doing exactly what we were doing. They have also gone over to the regulations system. It is probably an evolution. It is a means by which they will not have to be amending an Act year after year or month after month for whatever might be likely to happen.
The difference between the Minister's and my view is that I give the view of the person with practical experience of the working of that Act in relation to all ranks and to every possible complication in respect to deductions and forfeitures. It does not matter what rank a man is in ; if his pay is going to be taken from him and he believes he is being wronged he will take advice about it, for whether he is a private or a colonel he does not want to lose his pay. They have come to me about it. I think that viewpoint is more desirable than that of the person who takes up a Canadian or American or some other Act and has it shoved in here together with new offences Canadian style. I think, after 30 years of the satisfactory operation of the present Act, we should keep it, subject to some minor amendments that could be made, rather than have the advice of somebody who wants to do what they do in Canada or somewhere else. Why should we change what protected our soldiers in the 1923 Act ? Deputy Corish asked if the military authorities thought they have not sufficient power. What right should be given to the military authorities to take away a man's pay unless they have statutory grounds for it ? After all, a soldier lives by what he earns. In the normal way he is not paid an enormous sum of money. He is paid a sum based on the capacity of the country to pay but he earns it pretty well and it is our duty to see that nobody, army officers or anybody else, takes it away from him unless under statutory authority laid down by law. This is one of the fundamental sections of the Act and it will cause the Minister a lot of trouble. I say very deliberately that he is very badly advised by whatever military advisors he has had and he will be acting against the best interests of the Army if he deprives a man of the statutory protection given in the 1923 Act in respect of pay.
Would the Minister tell us if this would be possible : Suppose a case turned up and came to the Minister and some people felt that it would be as well to recover the money lost although it was not covered by regulations. Could the Minister write out an order to cover the case so that there and then, ipso facto, the deduction is made ?
The Minister, of course, would not do that.
The Minister or any of his predecessors would not, of course. But some day we might have a Minister who would not see his responsibilities as the present Minister does after all this is a permanent Act.
There is no such thing.
I remember a Minister for Defence who made an Order that every officer and soldier would have to wear a uniform at all times. He crucified us who were in the Army at the time. I was never so happy as when Deputy Aiken became Minister for Defence, and we went to him and he repealed that Order. The position was that it was laid down in the Act that a Minister could make regulations with regard to uniforms, and that was the Order he made.
Tell us now why he made that Order.
He had no conception of soldiering.
I was curious about that, and I asked the reason and I was told about it.
Suppose we get back to the section.
In the early stage of the discussion on this Bill, we had arguments here about orders being laid on the Table of the House. That should meet requirements. Regulations under this section would be laid on the Table of the House and could be annulled if the House so desired. If there is anything in the regulations of the character that Deputy Cowan fears, it can be raised in the House. The discussion which has taken place here could be referred to and, if the Deputy's fears were proved to be correct, I am pretty certain the House would amend the particular regulation. We were arguing for a long time about the desirability of having that done. We are doing it in this Bill now, but it does not seem to meet the matter.
The Minister might as well say that a Minister could make regulations to govern the Army and that they could be laid before the House. I would appeal to the Minister not to deprive the soldier and officer of the protection given them 30 years ago by statute. No Minister can go outside the four walls of the statute without an amending Act, but regulations can be changed any time. I have seen regulations altered to-day and altered again to-morrow and the day after. What does anybody know of the Defence Forces Regulations? You would want an ass and cart to carry them around.
This is an amending Act.
Amendments to regulations could be made under the other Act and they could be brought out to-day and amended again tomorrow. I have studied some of the regulations and nobody could make head or tail of them.
At first glance Section 131 of the 1923 Act seems to be all-embracing. It provides for many of the things that would be the subject of deductions. I wonder would the Minister be able to give us examples of other circumstances. Could he visualise any other circumstances where a deduction would be necessary ?
No, I cannot, although the Chairman said I was out of touch with the Army.
I did not say that. I said there are certain types of deductions you do not come in touch with, those for minor or petty offences.
If they are petty, nobody is going to suggest I should see them. There is nothing in that point.
There is in that they are made arbitrarily.
But they are made for the purpose of discipline.
You could not have had better discipline for the past 30 years and you had those laws. The Minister for Finance has as much say in this as the Minister for Defence. I know the officials and their methods of working in the Department. They say this should be done and all sorts of inter-change takes place and eventually a situation arises where the regulation is ready for the Minister's signature ; the Minister for Defence could object to it but he could be overruled by the Government and he would have to sign that regulation on Government order, deducting or making a provision for certain deductions or stoppages. If it is in the Act, as the law of the country, no Government or Minister for Finance or Minister for Defence in the future could interfere with pay except in so far as is laid down there. It only means putting in about two pages into the Bill.
I myself think it is a safeguard for the Minister. The Minister does not simply sign on the dotted line without knowing what he is signing. I am certain that, if a regulation was submitted to him to increase by any great extent the forfeitures or fines inflicted on officers or soldiers, he would not make the regulation. The whole suggestion in this argument is that the Minister for Defence, whoever he may be, is a person who could not be trusted with the wellbeing of the men under his control.
I think we will have to adjourn the discussion.
I am willing to deal with the section now.
No. It is gone past the time and I want to look up another authority. This is going to be a tough fight.
The Committee adjourned at 6.10 p.m. until 7.30 p.m. on Thursday, March 27th.