The Dáil is now in Committee on the Amnesty (British Military) Bill.
DAIL IN COMMITTEE. - AMNESTY (BRITISH MILITARY) BILL.
ACTING CHAIRMAN
I beg to move Clause 1:—
"No action or other legal proceeding whatsoever whether civil or criminal shall be instituted in any Court of law or equity in Saorstát Eireann for or on account of or in respect of any act, matter or thing done after the 23rd day of April, 1916, and before the date of the passing of this Act, by any person or under the authority of any person who, at the time when the act, matter or thing was done, held any office under or was employed in the service of the British Crown or the British Government in any capacity, whether naval, military, airforce, police or civil, provided such act, matter or thing was done or in good faith purported to be done in execution of the duty of the person doing the same, or in exercise or execution of any authority conferred on such person or on the person under whose authority such person was acting by any statute of the British Parliament or any statutory or other order of the British Government, or was in good faith purported to be done for the defence of the then existing form of government in Ireland, or for the public safety or otherwise in the public interest."
There are three amendments put down, and it will be only a matter of form accepting these. I would accept them now, but I think it better to have Deputy Fitzgibbon move them.
The amendments that I have put down to Clause 1 of this Bill and the amendment to Clause 3 are all directed to the same purpose—namely, preserving the rights of citizens of Saorstát Eireann to recover compensation from the British Treasury for property commandeered or taken under a contract expressed or implied to pay for it during the war. I do not know the precise origin of the particular Bill that is before the Dáil, but it was foreshadowed in the Address at the opening of this Session by a statement that "a Bill will be submitted securing by legal sanction the amnesty and indemnity proclaimed by the late General Michael Collins in favour of the members of the British forces engaged in military operations prior to the Treaty." That appeared to me to be confined to an amnesty of members of the British military forces. I should not have quarrelled with it if that amnesty had been extended to people who had not been members of the British military forces, but civilians who had been engaged in support of the then form of Government in this country. The British military forces are here and gone, and do not come back, but there are many of our own citizens who, in the performance of what was then their duty also supported the then existing form of government. Some of them have left this country, and some are willing to return, but are afraid to do so in consequence of having taken sides with the form of government now abolished. Therefore, I should have found no fault with this Bill if in addition to extending the amnesty to the British forces it extended it to our own citizens engaged on the same side. But this Bill seemed to me to go a great deal further, and to extend an amnesty to the British Exchequer, and I do not think that it was our intention, and I doubt very much if it was the intention of the Government to abate one penny of any lawful claim of any Irish citizen against the British Exchequer. When I read Clause 1 of this Bill it seemed to me to have a very close resemblance to the first clause of a Bill that was passed in 1920 in the Imperial Parliament, called the Indemnity Act. The necessity for an Indemnity Act in Ireland was that martial law had been enforced here for a considerable period. Martial law is not law, and it requires an Indemnity Act, either before or after the period covered by martial law, and it has been a universal constitutional practice to introduce after any period of martial law an Indemnity Act to indemnify those who in carrying out martial law have broken the law of the land. It was so in 1815 and 1845; and in this country in 1798 and in South Africa after the South African war, both in the Cape and Natal, but there was no martial law enforced in England during the Great War. Therefore the Indemnity Act that they passed was not the kind of Indemnity Act that was required in this country to relieve the military people and the civilians siding with them who had been acting under martial law. And so when I saw this clause was practically identical with that of the British Indemnity Act, it occurred to me that it might go a little further than we had really desired, and in the British Act the desire of the Government which brought it in was, not so much to protect soldiers who had been carrying on martial law, but to protect the Treasury against claims that citizens might have against the Treasury for property taken by the Crown for the purpose of carrying on the war, or for providing accommodation for those who were engaged in ministerial and other offices connected with the war. The first clause of the English Act commenced, as I say, identically with ours, except that in our Act we put in the 23rd of April, 1916, which was the outbreak of what is described in the Preamble "as the recent period of conflict with the British Government," instead of the European war, which is the war with which the English Act dealt. In the English statute which I have here there was a long proviso for protecting the rights of citizens. One clause, for instance, of the half-dozen provided "that this section shall not prevent the institution or prosecution of proceedings in respect of any rights under or alleged breaches of contract; the institution of civil proceedings founded on negligence in respect of damage to person or property elsewhere than in a foreign country," and several other matters including even an infringement of patents. All that protection for officials who had contracts with the Government, which the Government had broken, or who had property which had been damaged by the negligence of officers of the Government, was omitted in the first clause of this Act. I first framed some amendments with a view to preserving rights and claims of that description, but on consideration I thought that possibly to introduce a proviso preserving the rights as they are preserved in the British Indemnity Act might be better than two or three scattered amendments that I had originally put upon the Orders of the day. I have framed an amendment that I think has been handed round to Deputies, proposing in Section 1, line 32, to insert the following:—
"Provided that nothing in this Act shall be construed to prevent any person from instituting or prosecuting any proceedings under the Indemnity Act, 1920, or from claiming or obtaining any payment or compensation under the said Act which he might have instituted or prosecuted or claimed or obtained if this Act had not passed."
The Bill before the Dáil in its present form absolutely bars all legal proceedings and action of every kind whatsoever against the Government for anything they did during what is called "the period of the recent conflict," and if any of our citizens had come before the compensation tribunal or any other tribunal with a claim under the Indemnity Act of 1920, they would have been met by the representative of the Treasury with a copy of our own Bill, and he would say "You can go home, because your own Dáil has passed a Bill which prohibits you from taking any legal proceedings, or from carrying on any action whatsoever, and there is no use in your coming here." Now, the amendment that I have framed seems to me to prevent that. It seems to me to leave everybody where he was so far as he has any claim that he could prosecute if this Act had not passed, but it does give protection to any person for anything done, provided that it was done in good faith in accordance with his duty, for the maintenance of the then existing form of Government in Ireland. The Minister has already accepted an amendment which proposes to substitute "maintenance" for "defence of the then existing form of Government in Ireland," and it seems to me that if this second amendment that I have proposed is passed, and the mere verbal correction is made in the title of the Bill it will afford all the protection that we can give to citizens of Saorstát Eireann in claims that they may have against the British Treasury. Therefore, I would ask leave to substitute for amendments——
On a point of order, as I have not moved anything beyond Section 1 I think it would be better if Deputy Fitzgibbon would move these amendments first.
I am quite prepared, if the Government prefer, to move the three verbal changes. That would assist me. I will move in accordance with the Order Paper, that after the words "Saorstát Eireann" in line 18 the words "against any person" be inserted. The object is the same. Whatever I have said in support of the amendment that has been handed round in type is equally valid in support of the amendment I have put on the Paper in this case.
I understood that Deputy Fitzgibbon wished to have these three alterations as well.
I should like to, certainly. I move to insert after "Saorstát Eireann," the words "against any person" in line 18. The object of that is that in a Petition of Right or claim against the Crown, the Crown not being bound under the Statute, would not, I think, be included. That protects the servants of the Crown but not the Crown itself. I move amendment Number 1 on the list.
ACTING CHAIRMAN
There are three alterations; do you move the three of them?
I move the first amendment.
Amendment put and agreed to.
Amendment 2 has been accepted by the President, that is, to substitute the word "maintenance" for the word "defence," so that it is unnecessary to move that. Now, I do not move the amendments to lines 31 and 32 but in lieu of that I move the proviso that is in type, to add to Clause 1 the following: "Provided that nothing in this Act shall be construed to prevent any person from instituting or prosecuting any proceedings under the Indemnity Act, 1920, or from claiming or obtaining any payment or compensation under the said Act which he might have instituted or prosecuted or claimed or obtained if this Act had not passed."
Amendment put and agreed to.
Motion made and question put: "That Clause 1 as amended stand part of the Bill."
Agreed.
I move Clause 2, "If any such action or other proceeding as is mentioned in this Act was instituted before the passing of this Act and is now pending the same shall be discharged and made void subject to such order as to costs as the Court in which such action or proceeding is pending or a Judge thereof shall think fit to make." I do not think there is any amendment.
Question put: "That Clause 2 stand part of the Bill."
Agreed.
I move Section 3:—
"For the purposes of this Act:—
(a) a Petition of Right shall be deemed to be a legal proceeding and the proceeding shall be deemed to have been instituted on the date on which the petition was presented;
(b) the institution or prosecution of any claim before any tribunal appointed to enquire into claims for compensation under the enactments relating to criminal injuries or any enactment amending the same shall not be deemed to be an action or legal proceeding within the meaning of Section one of this Act.”
There is an amendment in my name on the paper to Sub-section (a), but when this Bill was before the Dáil for the Second Reading I stated that instead of the amendment which is in print I should move to delete the Clause altogether. Therefore, I move that Sub-clause (a) of Clause 3 be deleted; the reason Deputies will gather from what I said originally when putting in the words “against any person” in Clause 1. It goes to preserve our rights against the Crown as representing the British Treasury as head of the State, because contracts made by servants of the Crown for the State are treated as contracts by the Crown as representing the State, and you sue in respect of them by what is known as a Petition of Right, that is a petition claiming that the Crown has contracted to pay certain rent or compensation or something of that sort is brought forward. I move now to delete this exception of a Petition of Right, because I am quite clear that the right of any subject to proceed by Petition of Right where that is available ought to be preserved.
Amendment put and agreed to.
CLAUSE 4.
A statement in writing signed by any Secretary of State of the British Government certifying any of the matters mentioned in this section shall be conclusive evidence of the matters so certified, that is to say:—
(a) that at the time when the act, matter or thing complained of in any such action or legal proceeding as is mentioned in this Act was done, the person by whom or under whose authority the same was done held office under or was employed in the service of the British Crown or the British Government:
(b) that any such act, matter or thing as aforesaid was part of or within the duty of the person by whom the same was done:
(c) that any such act, matter or thing as aforesaid was within the powers and authority conferred on the person by whom the same was done or on the person under whose authority such person was acting by a statute of the British Parliament or an order of the British Government.
Clause 4 has three Sub-sections. I move that Clause, (a), (b), and (c).
Question put: "That Clause 4 stand part of the Bill."
Agreed.
CLAUSE 5.
Nothing in this Act shall prejudice or affect any final judgment given before the passing of this Act by:—
(a) any Court from whose decision no appeal lies by law;
(b) any other Court where the judgment is not at the passing of this Act the subject of a pending appeal.
I move Clause 5, (a) and (b).
Question put: "That Clause 5 stand part of the Bill."
Agreed.
CLAUSE 6.
This Act may be cited as the Indemnity (British Military) Act, 1923.
I move Clause 6.
I think it was understood at the Second Reading that "British Military" would be omitted because "The Indemnity" refers to civilians, police and other officials. Should it not read "British officials" instead of "British Military"?
I think it is preferable as described, because they constitute by far the largest number of those who would be likely to be affected, and it is thought that as regards other people that it is set out fairly clearly in the Clause who is affected. It is in the Short Title in this case, and it gives a better appearance to the thing from the point of view of the actual parties that were immediately engaged in the conflict.
They were war operations.
Yes, I think that having regard to that that it would be better described as it is—"British Military."
Is that the Short Title?
Yes.
Will the title have any effect in interpreting the intentions of the Act?
It will, it cannot help having.
If so, I will support the proposition or suggestion that is made by Deputy Professor Magennis, that we should leave out the words "British Military" entirely. I do not suppose it will make any difference in the Indemnity Act of 1923.
In one sense this is not an Indemnity Act at all; it is an Amnesty Act. It is called at the head of the Paper "Amnesty (British Military) Bill." In the Short Title, it is described "Amnesty (British Military)" Act, 1923. It does not seem to me to matter very much whether you call it "Amnesty" or "Indemnity." Indemnity usually means that you are paying something back, recouping something that is lost, but there is in the Title, not in the Short Title but in the Long Title, a necessary amendment arising out of what has happened, that is instead of the Act being one to restrict the taking of legal proceedings in respect of certain acts and things done during the recent period of conflict, it ought to be amended by stating "things done in the recent conflict," because Amnesty is only to people who were engaged in the maintenance of the then existing form of Government, and the Long Title would make it to appear to cover anything that was done by anybody after the 23rd of April, 1916, whether it had connection with the conflict between Great Britain and Ireland or not. Therefore I did hand in an amendment to amend the title by striking out the words "during" and "period of" and substituting "in," so that the title would read after the word "and" in the third line "Things done in Saorstát Eireann in the recent conflict with the British Government."
It was held during the last five or six years that the British Government maintained its authority here through the Army of Occupation. It was assumed that a public official maintained his right or status or office or administration by reason of the fact that he was supported by the British military. That, I think, was the idea underlying the particular title. There were certainly fewer persons, or there would be fewer persons, on the civil side affected by this than on the military side. From that point of view, I think, it would be better leave it as it is.
What does the President propose to do about this amendment in the description of the long title?
We have not come to that. We agreed to it the last day, but this one must come first.
If we are on Clause 6, which is a short title paragraph, I do think that the word chosen at the head of the Bill, "Amnesty," is a better word than the word "Indemnity" in this clause. "Amnesty," I suggest, is clearly a more accurate description. You have "Amnesty" in one place and "Indemnity" in another. Of the two, I suggest "Amnesty" is the better word.
"Amnesty," I think, refers very largely to a forgiveness for some act, usually a criminal act done, and, in the majority of cases, an act for which punishment is meted out. In the particular cases that we have under review here no punishment is inflicted. This is a promise that you will not inflict punishment. To that extent the word "Amnesty" is stretched sometimes. The word is usually used when people are in revolt, and it is asked will you give them "amnesty." In this case I take it you mean by "indemnity" that you are relieving the person from the possibility of being proceeded against in the civil courts for some acts done on behalf of the Government he served during that particular time. For that reason, I think, it is better described as it stands.
I entirely accept what the President says. My main purpose was that the word should be the same in both cases. As it stands you have one word in the beginning and a different word in the end.
Question put: "That Clause 6 stand part of the Bill."
Agreed.
Now I move the title: "An Act to restrict the taking of legal proceedings in respect of certain Acts, matters and things done in Saorstát Eireann during the recent period of conflict with the British Government and to provide for matters consequential thereon."
Consequential on the amendments already adopted I now suggest that it is necessary to amend the title by striking out the word "during" and the words "period of" in line 9, and substituting the word "in" after Saorstát Eireann. We have now confined this Bill to acts done in the course of a particular war that was going on during a particular time, but not to other acts that were not connected with that. I move that the word "in" be substituted for "during" and that the words "period of" be struck out.
I accept that.
Amendment put and agreed to.
Question put: "That the title as amended stand part of the Bill."
Agreed.