This section is opposed by Deputy Cowan.
SECTION 99.
I do not like this section. It is probably a carry over from the 1923 Act and from the 1881 Act, and from some Mutiny Act perhaps operated by Cromwell. Under the law there is all sorts of legal protection for destitute women and children. They can get an order in court, and then under Section 98 the Minister may make deductions. If a man deserts his wife and leaves her in destitute circumstances, all she has to do is go into court, establish that fact to the satisfaction of the justice and he will make an order, and on its being transmitted to the Minister under a previous section he shall order deductions from pay. That being so, there are no circumstances I know of in which the Minister would set himself up to consider whether a soldier left his wife in destitute circumstances or not, and I think it improper and wrong that he should. The Minister may have some reasons in defence of the section and I would certainly like to hear them.
This section provides that where a soldier leaves his wife and family destitute the Minister may make deductions from his pay and apply it to the wife and family. Now, admittedly, this type of case must now-adays be much rarer than formerly, especially as marriage allowance is normally payable. It may be asked why the soldier should not be liable by way of punishment by the civil courts in the same way as ordinary citizens. The practice embodied in this section, however, which is continued from the 1923 Act, is based on the old and sound principle that a soldier's job is to fight and to be available always for that purpose, and that his enlistment is a contract of service for that purpose. If, therefore, the soldier can be kept out of the custody of the civil power, and if a deduction from his pay can meet that end, that is the practice in all armies and, as I have said, it is a very old one. It is particularly necessary in relation to a time of war or emergency. I presume that the civil court would deal with a man who deserted his wife and family and that he would probably be imprisoned.
No, it cannot be done. That is subject to some explanation I will give in a couple of minutes.
This is the case as I understood it: If a soldier is sentenced to imprisonment by a civil court the Army loses his services. In order to provide against that the Minister takes the case in hand himself when he is fully satisfied that desertion has taken place and deducts a certain sum of money from the soldier's pay for the wife and children, and thus retains the services of the soldier for the job for which he is employed. That is the position as I am given to understand it. Deputy Cowan now tells me that the court cannot do that and I should like to hear him on that point.
I said it was subject to what I would have to say. There are two types of procedure—one in respect of desertion of his wife and the other in respect of negelct of his children. In regard to desertion of his wife, that is a matter in which the court hears the facts and makes an order against him to pay so much per week. That order would be transmitted to the Minister, who would be bound to obey it. There is no danger there. There is then the other case, of a man who failed to provide for his children. That is a criminal offence for which he can be arrested and put in jail. In Section 107, there is set out:
" Notwithstanding anything contained in paragraph (22) of Section 133 of the Children Act, 1908. . . ."
which is the Act under which he can be put in jail,
" . . . an order is made, under either Section 78 or 82 of that Act, against a person who is or becomes a man . . ."
that means a soldier,
". . . shall not be enforceable by the imprisonment of such person. . . ."
Here the Minister makes provision that he cannot be put in jail if he is asoldier and, that being so, the defence the Minister has made for the section does not really apply. I think the Minister has been advised without relevance to the facts of the present situation. As the Minister said, it is a very old section, probably applied in the British days by commanding officers on foreign fields when wives went around as part of the army. Reading the history of the Indian Mutiny, one sees that it is a terrible nuisance to have to bring around the wives and families, and in this case the Commanding Officer exercised the powers of judge, jury and everything else and could make a soldier look after his wife. In this country, we have a law that if he deserts his wife she goes to the District Court and the district justice hears the case and decides whether a man is liable to pay or not and makes an order accordingly. If he does not obey that order he can be put in prison, but the Minister protects him from going to prison under this section, so that he cannot be put in jail, so far as I can see. I admit that perhaps the Minister, with advice which is not available to me, may point to some circumstances in which he can be put in prison and the Army deprived of his services, but, in view of Section 107, I do not think he can be put in jail.
There is very little difference between what Deputy Cowan says and what I have said. The Army, apparently, through the medium of the section to which he has referred, will keep him out of prison.
It would be unlawful to put him in jail.
It is the same thing. It ensures that the Army will not be deprived of his services. The purpose is the same—to keep a soldier out of prison so that the State may retain his services; but at the same time the Army must obey the civil court and to do that they must enforce the payment — two-thirds, three-quarters, or whatever it may be—in respect of the wife and children. So far as I can see there is very little between us.
What I am saying is that there is all the provision in the world in the ordinary civil law to deal with a man who deserts his wife or neglects his children, and there are no circumstances I know of in which this old power is necessary. I never knew of its being operated. I think it would be wrong for it to be operated and I will explain why. Under the ordinary law dealing with husband and wife a husband is only bound to support his wife when he deserts her and does not contribute to her maintenance. It is one of these ticklish points that all lawyers in this type of case have to argue—whether, in fact, he deserted her or not. The fact that he leaves her and does not pay her does not oblige him to pay her. Suppose he walks out on her because he has found her in compromising circumstance. He is entitled to do that and he need not pay a penny for her maintenance. That is the law and that should be decided in the civil court. It would be wrong for the woman to go to the Minister and say: " My scoundrel of a husband has deserted me and given me no money."
No.
That is what the Act says. The Minister has been set up in this regard as a court who may not apply the law that applies in the District Court.
From a lawyer's point of view, Deputy Cowan is perfectly correct. What the Minister is doing is making a new marriage law and I say that with full knowledge of my position as a lawyer. The Minister's intention is perfectly clear, but technically Captain Cowan is perfectly right.
I do not propose to argue with two lawyers. I will ask our legal advisers to look at it again.
If you have not got some such provision, the Army may become a refuge for all this type of people.
It could not.
I see a weakness in Captain Cowan's argument in this respect, that the wife would have to go to court. I know cases in my own experience in which wives should go to court, and I have advised them to do so, but they will not go.
Who will pay their expenses if they do ?
In Dublin, most of these cases are handled by the N.S.P.C.C.
That is purely a voluntary organisation.
The society is there and there is no question of a woman not being able to bring a case to court, through not having money. I want to mention a case. Under the old Act, there was the same protection as is in this for a soldier, and on one famous occasion there was a soldier stationed at Portobello who owed a debt to somebody. An order was made that he was to pay it and he did not pay it. The sheriff went out but he had no goods —the sheriff could not seize his rifle— and he was then ordered to attend in court to be examined. He consulted a particular solicitor who advised him not to go to court and an order was made for his arrest. He was advised by this solicitor the moment he was arrested to get in touch with him. He was arrested and planked up in Mount-joy, and immediately in the High Court a habeas corpus action was taken and the man was out. It did not reach the Attorney-General before the order came : “ Let him out quickly,” and the district justice and the governor were in jeopardy over it. The effect of that case which went around the country was that every district justice was afraid of his life, and when any proceedings against a soldier arose they used to get heart failure.
I do not know about district justices getting heart failure.
If you went to the Dublin District Court to take any proceedings against a soldier, they hated it because they never knew where they were. A soldier can never be taken out of the service and put in jail and the Army deprived of his services for any of the things the Minister has mentioned.
With the result that his wife and children can go destitute, while all this is taking place.
No, the wife and children need not go destitute. They can go into court and get an order, but while the courts are there to administer the law, the Minister ought not to exercise this power. I should be very surprised if the Minister has ever used it. It is one of the sections carried over from the days of the Indian Mutiny, as I say, when the wives and families were under the control of the old Commanding Officer.
The Minister says he will have it looked into.
Question put, and agreed to.
Section 100 agreed to.
I think we should nearly have a celebration on passing the first hundred.