Léim ar aghaidh chuig an bpríomhábhar
Gnáthamharc

Dáil Éireann díospóireacht -
Wednesday, 11 Jun 1924

Vol. 7 No. 22

DUBLIN POLICE BILL, 1924 (COMMITTEE STAGE). - DAIL IN COMMITTEE.

Sections 1 and 2 agreed to and added to the Bill.
SECTION 3.
(1) From and after the passing of this Act the Commissioner shall be appointed and may at any time be removed by the Executive Council.
(2) The appointment of William R.E. Murphy to be Chief Commissioner of the Dublin Metropolitan Police is hereby confirmed as on and from the 5th day of May, 1923, subject to his making and subscribing before a Peace Commissioner a declaration in the form contained in the First Schedule to this Act, and subject to the qualifications that from and after the passing of this Act his style and title shall be Commissioner of the Dublin Metropolitan Police, and that the provisions of this Act relating to the Commissioner shall apply to him.

I move that Section 3 stand part of the Bill.

I want to say a few words on this section. I am not speaking in order to obstruct or to delay the progress of the Bill in any way. My one desire is to try and obtain some sort of security for the occupant of the post of Chief Commissioner. In the absence of the light and leading we used to have from the Attorney-General, and speaking as one layman to another, I am not entirely satisfied with the proposal contained in this section. I think it will lead to what is far more undesirable than having the matter set forth in a statute. It will lead to private negotiation on the part of the person occupying the position to secure that in the event of his being dismissed he will not suffer. I know a case that occurred in the past. An inspector-general was appointed to the Royal Irish Constabulary. Being a man of foresight, coming from the Co. Derry, he got an undertaking from the British Government that he should not be removed from his post unless he was given a better one. As a result of a change of policy the British Government desired to remove him. They found they were up against this undertaking, and they found they had to pay him fully for two years as inspector-general while he lived in London, and another inspector-general ruled here. And they had to find a post as Governor of a Colony for the former man. That is intensely undesirable, and it is because I want to try to avoid it that I am importuning the Minister and asking him to make it clear that in the event of an official being dismissed, not through any fault of his own, he should be protected. I contend he should be dismissed if guilty of misconduct or if inefficient, but if dismissed in consequence of a change of policy of Government, his pension rights should be clearly set out in the statute. There is an enormous difference between the assurance of the Minister buried away in back volumes of the official debates and a statutory right given to an individual which can be quoted chapter and verse. Ministers come and go, but the law remains, and that is why I have urged, and will continue to urge, so far as in me lies, the desirability in this particular post, for giving that security. I do not think the Minister will contend that the pension rights are so fixed that if the occupant of this post is dismissed for inefficiency or incompetence or misconduct, then he will be entitled to his pension. I speak without having very carefully studied the statutes. I wish we could have these statutes and study them. At present we are working in the dark, but unless the Minister contends that, then there is a case for putting something in the Bill that will safeguard men—it might be put in on Report or when the Bill goes to the Seanad—who run far more risk of unpopularity with certain individuals than other Civil Servants. A man like the Chief Commissioner must make himself unpopular with certain individuals, or he does not do his duty, and that is the reason why when legislation of this kind is before us these officers are entitled to exceptional treatment.

I confess, that I have some difficulty in understanding the Deputy's persistence on this point. I wonder if it would in any way ease his mind if I were to state that the position, tenure and pension rights of these officers are identical with the position, tenure and pension rights of the corresponding officer in the Gárda Síochána, and that, as I have said before, the tenure of both is the tenure of the most permanent Civil Servant in the employment of the State, whoever he may be. I ask the Deputy a question. He has asked me many, but I ask him one: Does he want us to fix these men in office by statute so that they shall be irremovable by the Executive Council, so that they shall differ essentially in their tenure from the tenure of permanent Civil Servants, or so that they shall be like judges? There is some idea in the mind of the Deputy that this Bill alters their position either in respect of tenure or in respect of pension rights. It does not. Yesterday or the day before they were removable by the Executive Council, just as they are to-day and will be to-morrow, and this Bill does not touch at all on the question of their position rights. We are told that a policeman, from the nature of his duties, will incur odium and will incur unpopularity, and that, therefore, these men must be protected from this or from some future Executive Council, and that they should be so protected by statute of the Oireachtas. We cannot legislate on the assumption that Executive Councils in this country are going to behave in that reckless, irresponsible manner that they would remove policemen from office for doing their duty or because of odium or unpopularity incurred in the doing of their duty. That would be Bedlam; it would simply be to suppose that this Dáil or some future Dáil is going to entrust the destinies of the country into the hands of men who would be capable of acting in that manner, and presumably would not deal with them promptly if they should so act. The tenure of any Civil Servant is this, that Governments did not and Governments will not act in that manner, and that in fact an employee of the State will not be arbitrarily removed from his position. These men have the same tenure as the executive head of my Department, as the executive head of the Department of Finance, and as the executive head of any of the Departments of State. Does the Deputy wish to give them more than that? Does he wish to put them in the position of judges so that they shall be removable only by the vote of both Houses of the Oireachtas and for cause shown? That would be, as it were, setting up a Government above the Government. Their position is the position of the Commissioners of the other police forces, and I see no reason for dissatisfaction with that position. It is the highest tenure known in State employment here hitherto, and I do not think we should lightly alter it.

In reply to the Minister's question, I do not wish to have these officials put in the position of judges, and I do not wish to have them made irremovable. I have never contended that they should be irremovable, but I do contend that if they are removed through no fault of their own that they should have the statutory right to pensions clearly asserted in this Bill, which overrides any previous Bill. That is my point. As regards the rest of the Minister's argument, may I express the regret that he was not a member of the delegation which negotiated the Treaty. I am sure that the Minister for Finance regrets that, too. His argument on this matter was a powerful argument against Article 10 of the Treaty, and I am sure the Minister for Finance would have been delighted if Article 10 of the Treaty had not been inserted therein. I am not speaking to obstruct the Bill, but I am disturbed at the position in which these officers may be left. I am an older man than the Minister, and I have seen many changes in my life. There is no great certainty for anybody in the country. So far as certainty can be secured by Statute let us endeavour to do so in this Bill.

I just wish to draw attention to a requirement here as regards the appointment of the Chief Commissioner. The appointment is to be confirmed subject to his making a declaration in the form contained in the First Schedule. When we turn to the First Schedule it speaks of his employment by the Ard Comhairle of Saorstát Eireann, but in Section 3 he is to be appointed and removed by the Executive Council. It is possible that the Commissioner may be Guard McGill, from Letterkenny; he may be, for instance, a man like myself, who may not be able to connect "Ard Comhairle" with the Executive Council. If we have the Executive Council in the section as the body which is to appoint and remove, we ought, I think, to have the same phrase in the declaration which this person has to make, or vice versa.

I just want to call attention to the fact that there is a discrepancy between the two and it may be that, amongst the very numerous interpreters and translators, there may be a difference of opinion as to whether "Ard Comhairle" is the true translation of "Executive Council," and inasmuch as there are members of this force who are not able to decide that question for themselves, it may be better to have a change either in the declaration or in the section.

It might be met, perhaps, by putting "Executive Council" in brackets.

In strait jackets.

Mr. O'HIGGINS: Obviously whichever word we trump for should be the same in the section as in the form of declaration, and I will undertake to give a definite decision on that great question between this and the next Stage.

Question—"That Sections 3, 4, 5, 6 and 7 stand part of the Bill"—put and agreed to.

Before passing from Section 8 I should like to find out from the Minister whether he has considered the question I raised on the Second Reading regarding the effect of Section 8, which gives the Minister power, subject to the approval of the Executive Council, to punish members of the Dublin Metropolitan Police, whether that in fact might be said to constitute a court and to give him the status of a court in respect of this, and whether that has any bearing upon the provisions of the Constitution regarding the appointment of a court. Perhaps the Minister has considered it.

The wording of the sub-section is, of course, clearly intended to cover disciplinary action within the organisation, and to cover such matters as fines for misconduct, and so on. The system obtaining in the other police force is that fines imposed upon members for various minor breaches of discipline go into a fund which in turn is used as a reward fund, to be distributed at the discretion of the Commissioner, with the assistance of certain senior officers. The Deputy's point that it could be extended to cover imprisonment and so on, is, I think, scarcely a sound one or a substantial one. No one suggests that these internal disciplinary measures in the organisation will encroach upon the proper functions of the courts of the country. When I pointed out to the Deputy on the last occasion, that to do that would be contrary to the Constitution, he quoted as against my contention the decision of one of the late courts, and in reply, the President reminded him that that court, which purported to pronounce on the Constitution, had in fact no right to so pronounce. And we are not prepared to admit, and we are not advised, that legislation can casually or without explicitly purporting to do so, alter the Constitution. It turned out that the Deputy's whole point rested on this court's decision. Now, the advice of the Government is that No. I, the court had no authority to pronounce upon the Constitution, and No. 2, that we differ strongly from the opinion expressed. The word "punishment" there must be taken in its context— punishment within a disciplined force. And because regulations may be made dealing with "the promotion, retirement, degradation, dismissal, and punishment of members of the Dublin Metropolitan Police," no one would suggest that a court constituted by officers of this force could imprison members of the force, which is the Deputy's fear, or alleged fear. I do not know any word that could be substituted, because "disciplinary measures" or anything of that kind would be too broad, and would include degradation and dismissal. But I am not convinced that there is any case made out by the Deputy for a change.

This incidentally, and perhaps in a rather unfortunate way, raises a very important question. The Minister is seeking powers to make regulations in respect to the force, which include regulations for the promotion, retirement, degradation, dismissal and punishment of members of the Dublin Metropolitan Police. As has already been said very frequently, and even again to-night, it is not what the Minister assures the Dáil is his intention, but what some future Minister may do or possibly will do under the cover of an Act, which up to a week or two ago we might have said, without any question whatever, was subject to the Constitution which limits the authority of persons to inflict punishment to duly qualified courts. Well, notwithstanding what Ministers may be advised in regard to the powers of the Constitution, and the effect of the Constitution Act, notwithstanding what Ministers may argue were the powers of the court, which dealt with certain cases brought forward under another Act of the Oireachtas, it remains the fact that three judges, who were up to a few days ago competent to deal with the ordinary law, took the view that any Act that we pass in the ordinary course of law may be held to be an amendment of the Constitution.

Now, of course it is to the ordinary layman a preposterous attitude for anybody to take, and certainly nobody ever intended that the Constitution could be amended, even in the period of eight years in the ordinary course of legislation, but we are faced with the position that judges who were competent and well qualified judges and other high legal authorities who were judges once, believed, or at least held, that that provision of the Constitution Act is a weak one and allows it to be argued and, as they think successfully argued, that any Bill coming forward at any time under the ordinary process of legislation can be held to be an amendment of the Constitution, even though not specifically stated in the enactment itself. Unless we in this, or any future Act, specifically say that this shall not be deemed to be an amendment of the Constitution, or until we amend the Constitution and remove any doubt, I say that this section may be held to give power to a Minister to act as a court to inflict punishment. That is why I raise the question as to whether the Ministry had any intention regarding the amendment of the Constitution, or, alternatively, any intention of inserting in any Act that is passed, a proviso that nothing shall be deemed to be an amendment of the Constitution unless specifically declared to be so. I would like to raise this matter more formally, and perhaps an occasion will arise when I shall do so; but, as the matter has been referred to, I find it necessary to state what I have stated, namely, that this section, having in view the attitude of the judges in the case I have mentioned, leaves this Bill in such form that possibly it will be interpreted by future judges to empower a Minister to inflict punishment, such punishment being possibly even imprisonment.

Sections 8, 9, 10, 11, 12, 13 and 14 agreed to, and ordered to stand part of the Bill.

resumed the Chair.

FIRST SCHEDULE.

Form of Declaration.

"I ..................................... do solemnly and sincerely before God declare and affirm and my word and honour pledge that I will be faithful to the utmost of my ability in my employment by the Ard Comhairle of Saorstát Eireann in the office of ........................................ in the Dublin Metropolitan Police and that I will render good and true service and obedience to Saorstát Eireann and its constitution and government as by law established, without favour or affection, fear, malice or ill-will, and that I will see and cause the peace to be kept and preserved, and that I will prevent to the best of my power all offences against the same, and that while I shall continue to hold the said office, I will to the best of my knowledge discharge all the duties thereof faithfully according to law, and that I do not now belong and that I will not while I hold the said office, join, belong, or subscribe to any political society whatsoever, or to any secret society whatsoever."

I move: To delete all words after the word "law," line 52, to the end of the Schedule. The proposal is to leave out the last four lines in the formal declaration, declaring "that I do not now belong and that I will not while I hold the said office, join, belong, or subscribe to any political society whatsoever, or to any secret society whatsoever." I do not want it to be understood that I am desiring to encourage members of the Police Force, or any other of the forces, to become participants in political activity, in political societies of any kind, or to join secret organisations. I am asking that these words shall be deleted, simply because I think it is impracticable, and because insofar as the latter part is concerned, I find that any and every citizen is prohibited by law from being a member of any secret society whatsoever, so that you are asking a policeman to declare that he will not break a law. I think, as I said earlier, that a definition of a political society will be a rather difficult thing to insert in a declaration, and it will not be much easier to define a secret society. The attempt to define a political society or a secret society is not easy, and there is no use in asking a man to declare that he will not join a secret society or a political society unless he knows what either of those bodies is. A political society may be a gymnasium, as it has been on the Continent, or it may be an athletic club, as it was in Ireland; it may be a friendly society, as many of them have been in Ireland. It may be anything, and we all know that societies were established, apparently, for innocent purposes, and still perhaps innocently, changed their character and purpose, and yet a person who joined was not a member of a political society. Similarly in regard to secret societies. Ten men come together saying: "We are going to form an organisation," for some quite innocent amusement, but they are going to keep it quiet. Is that a secret society? Of course, you will say that it is preposterous; nevertheless it is an attempt at a definition. If you ask a man to make a declaration that he will not join any society you are asking him to declare what is quite foolish, and I therefore say that it is unwise to ask a man to make this declaration. Anything of the kind that you want to do ought to be done in a more regular form by regulations within the service itself.

I listened very attentively to the Deputy, and I did my best to follow him, but when he was finished I was a little vague as to the real purport of what he said. I do not know whether he is suggesting that a person could be a member of a secret society without knowing whether he was a member of a secret society or not; that he could, say, join a gymnastic club or a language class, or something of that kind——

That is a political society.

Which afterwards, in its evolution, or development, became a secret society.

Became political, became actively political, what it was inherently when he joined it.

Is it the suggestion that this guileless member would not know at what stage it became political, and at what stage he, in accordance with his declaration, ought really to sever his connection with it?

My contention is that he would be still a member of a gymnasium, or an athletic association, and he might well be a member of the Gaelic Athletic Association, shall I say, while it was well known he was an active member of a political society.

Well known to everyone but the guileless member.

Well known to everyone.

Yes. Well known to everyone, including the member who might make this declaration.

To my mind, at the stage when he became aware that it was a political society, then, according to this declaration, it would be his duty to sever his connection with it. So much for the political society. Now as to the secret society, the Deputy has attempted in a later amendment— I use the word "attempted," and I rather stress the word—to define a secret society. It seems to me that a secret society, like an elephant, is something very difficult to define; but you have no difficulty in recognising it, and I think that a man who has taken this declaration, and who had subsequently by accident strayed into a secret society, would have very little difficulty in recognising it either. It comes down to this, whether you are going to have a man in your State organisation, in your police force, who will join groups, combinations, or societies with commitments unknown to their employers, the people, and with commitments which for all their employers, the people, may know to the contrary, cut across their line of duty, and their line of allegiance. That is the point. The wording of the declaration may not be perfect. It may be as imperfect as the wording of Deputy Johnson's amendment, but it is the best shot we were able to make at effecting something which the great majority of the people consider highly desirable. I do think that the recruit coming up from the country and taking that declaration, knows very well from what kind of activities he is precluded by the declaration, and will have no difficulty in recognising a secret society when it looms on his horizon. The alternative is to accept the Deputy's amendment, and leave out any such restriction, leaving the recruit to his own sweet will as to which of the competing organisations he may wish to enrol himself in.

I move to report progress.

Barr
Roinn