I would like the President to explain what exactly will be the position when this section is passed. Under Section 18 of the original Act it is provided, that from and after five years following upon the establishment of a military college under the Act preference in appointment to commissioned rank in the Forces shall, as far as possible, be given to graduates of that college. It is not clear as to whether this section is to come into operation before the termination of those five years. I wonder could the President explain the position with regard to examinations for appointment of officers at the present time.
DAIL IN COMMITTEE. - DEFENCE FORCES (TEMPORARY PROVISIONS) ACT, 1923 (CONTINUANCE AND AMENDMENT) BILL, 1924—THIRD STAGE.
Section 1, 2, 3, 4, 5, and 6 put and agreed to.
SECTION 7.
Section 10 of the Principal Act (which relates to the granting of commissions) shall be and is hereby amended by the addition thereto of the following sub-section:—
"(2) Where a person holding appointment as an officer in the National Forces at the date of the Proclamation mentioned in Section 22 of this Act is appointed to commissioned rank in the Forces, such person may, be in the event of his failing to pass the qualifying tests prescribed for the rank mentioned in his commission, be reduced by the Minister from that rank to the highest commissioned rank for which he passes the prescribed qualifying tests."
The Defence Forces are at present maintained under the transitory provisions of the Act passed last year. As soon as the present Bill becomes law, it is intended to establish the Forces by means of a proclamation issued by the Executive Council under Section 22 of the Act. When that proclamation is published commissions will be issued to officers in the form laid down in the First Schedule. It is proposed then that all officers should go through a military school and pass the qualifying tests. In the event of an officer not passing the test, unless this provision were in, the only alternative left was to demobilise that officer, but it is proposed by means of this particular section to afford him an opportunity of qualifying for the rank immediately under that to which he was commissioned.
I imagine it will take a very long time for this to work out, as you cannot put all the officers through this course for several years.
It is hoped, in the way I have mentioned, that we should be able to pass all the officers in the Army through during twelve months.
Question—"That Section 7 stand part of the Bill"—put and agreed to.
Section 8 agreed to and added to the Bill.
SECTION 9.
The form of oath or declaration to be taken or made pursuant to Section 21 of the Principal Act shall be as follows in lieu of the form of oath or declaration set out in the Second Schedule to the Principal Act, that is to say:—
"I,, do solemnly swear (or declare) that I have this day freely and voluntarily enlisted as a soldier in Oglaigh na hEireann; that I will faithfully serve as such for the period of , from theday of, 19(unless sooner discharged by proper authority) and under the conditions prescribed in accordance with law; and I will accept such pay, bounty, rations and clothing as may from time to time be prescribed in accordance with law.
And I do further solemnly swear (or declare) that I will bear true faith and allegiance to, and against all enemies whomsoever, defend, Saorstát Eireann and its Constitution as by law established and I will render good and true service and obedience to the Oireachtas and Government of Saorstát Eireann under the Constitution, and that I will submit myself to discipline and obey without question the orders of the officers appointed over me according to law, and further that I will not while I am a soldier in Oglaigh na hEireann join, or be a member of, or subscribe to, any political society or organisation whatsoever or any secret society whatsoever."
On the last day, I think, Deputy Nagle asked a question on this section. He asked what was the reason for the difference between the oath that an officer takes and the oath an ordinary private soldier takes. Different forms are prescribed, because in the case of an officer his position is analogous to that of a Civil Servant. He holds his commission during the pleasure of the Executive Council, and there is no contract between him and the State. The soldier is enlisted, and enlistment, in that sense, is the acceptance of an engagement in the military service of the State, and it is in the nature of a contract between the person enlisted and the State.
Will the Minister explain a little further what are the terms of that contract? Is there to be a stated reward on the one part—payment for the services rendered, and what is that payment? I notice by the form of the oath that the soldier is to swear, "I will accept such pay, bounty, rations and clothing as may from time to time be prescribed." Is is suggested that the contract is one which may be varied at will by one party to the contract without reference to the other party, and if it is a contract, is it not within the terms of the contract or the general equities of the case that when a change is made in the conditions under which the contract is fulfilled, that either party may withdraw from it? I notice, if we take the next section, Section 10, we find there that an officer who declines or neglects to take the oath prescribed for him, is deemed to have resigned his commission. There is no such suggestion in reference to the oath to be taken by soldiers. I am still in a difficulty to reconcile the distinction, if the distinction is as the Minister, has now stated, that in the one case it is a contract. I am anxious to know why the terms of the contract are not made known to one of the parties. When they vary one of the parties to the contract may decline to accept the variation.
The mode of enlistment and the attestation are set out in Section 148 of the Act. It is not proposed to vary the contract unless where it is so specified, in such cases, say, as ration allowances or things of that sort in which it would be inadvisable, I think, to set up a regular and rigid standard. In the case of a soldier, he understands on his attestation or enlistment, how he stands exactly. It is before him, and he has the particulars of it. In the case of officers it is not the same at all, because we have them already. It is not in contemplation at present to issue commissions to men other than those we have at present in the Army, and in their case, unless they take the oath which is in addition to the Act of last year, then they will be deemed to have been demobilised or to have resigned in that time.
The Minister is merely re-stating the position which he has already given to the Dáil. I am rather asking why the distinction should be made. You have soldiers and officers at present in the Army. You are proposing new legislation which changes the terms of the oath in both cases. In the one case an officer who declines or neglects to take the oath is deemed to have resigned, but in the other case there is no option, or may we take it, that in both cases neglect to take the oath will mean freedom to demobilise oneself. A soldier may demobilise himself by neglecting to take the oath. Is that, I ask, the position? Further, on the question of the distinction between the term of service, the Minister states that in the case of a soldier it is a contract of service, and that it is not proposed, he says, to vary the conditions. That, I suggest, does not affect the case. The Minister may not propose it, but his successor may. I want to know, supposing the Minister's successor proposes to change the terms of service, which apparently he is entitled to do, without reference to the soldier, when a contract has been entered into, the soldier must be deemed to have been aware of the terms of that contract, and if a variation takes place during the terms of service, then may we take it that the contract has been broken on the side of the State, and that the soldier is no longer bound by this contract.
The soldier's enlistment is not completed until he has taken the oath, and the fact of his enlistment or, at least, the mode of the attestation, is set out in Section 148. On the other hand, Section 148 does not exhaust it. If you look at Section 149 it is found that the soldier may, as it were, buy himself out. In the case of the officers, who are at present in the Army, it is proposed to issue commissions to them. Properly speaking, they have not got these commissions at present, although gazetted to commissioned ranks. As soon as the Act is passed it is proposed to issue a proclamation by the Executive Council, and these commissions will be issued, and it is necessary for the officers to take the oath. In the case of the men, it is necessary to do it before enlistment, and they are not enlisted until they have taken the oath.
Then are we to understand that those who are at present serving are not in the Army, and that they are not enlisted and not bound?
Yes, they are in it and they are bound to it, but a man, as I said, is not completely enlisted until he has taken the oath. In the case of the officers, they are under the transitory provision of the Act of last year, and it is proposed to regularise that Act now.
Are we to understand that in the case of all the existing officers in the Army they have not taken any oath or made any declarations that would prevent them belonging to some secret political society? There is no obligation at present binding them to make any declaration of that kind?
No.
There is one question that I would like to ask; it is on a matter of variation. Can the President now say if the order made, I think, last October, or about that date, to the effect that men serving in the National Army who get married would not be entitled to separation allowance for their wives,, has been varied? It has caused a lot of dissatisfaction in the Army. The President promised some time ago to have the matter reconsidered, and I would like to know if it has been reconsidered and what has been the decision?
I believe that the Order stands, but the matter is under consideration by the Army Pay Commission, and is not yet settled. I expect I may be able to announce before the Bill passes its final stage what action is taken in that respect.
Question—"That Section 9 stand part of the Bill"—put and agreed to.
Sections 10 to 23 inclusive were agreed to and added to the Bill.
SECTION 24.
Section 84 of the Principal Act (which relates to the investigation of a charge against an officer) shall be and is hereby amended as follows:—
(a) At the end of sub-section (1) there shall be added the following words—"or by some other officer appointed in that behalf by the Adjutant-General."
(b) The words "officer investigating the charge" shall be substituted for the words "commanding officer" where the same occur in sub-sections (2) and (3).
(c) The following sub-paragraph shall be substituted for sub-paragraph (ii) of paragraph (b) of Sub-section 4:—
"(ii) If he considers the case is one which should be dealt with summarily he shall, where the finding involves an automatic forfeiture of pay under paragraph (a) of Section 127 of this Act, or where he proposes to award a fine, first ask the officer charged whether he desires to be dealt with summarily or to be tried by court martial, and if the officer elects to be tried by court martial he shall remand him for trial by court martial, but otherwise shall proceed to deal summarily with the case."
I would like to ask the President if he could give us any information as to why any change should have been required in the principal Act in connection with these matters of punishment and courtsmartial, and so on. A little information as to why within the last year and for a period of only a very few months, it is required to make these very considerable changes should be given to the House and would, I think, help us to understand perhaps, what we are doing.
In Clause 21 the maximum fine is reduced from £5 to £3; that might have been imposed on a summary conviction by a commanding officer, and the fine is reduced. The prescribed officer who, it is intended will be a G.O.C., can reduce or remit the punishment awarded by a Commanding Officer. In cases of rates of pay, the accused has a right to elect to be tried by courtmartial. In the case of Section 22, Section 82 of the Act provides for the punishment which may be awarded to a private soldier by a Commanding Officer, and practically the same provisions are made—that is, the reduction of the fine, and so on, are provided for. Now, as regards Section 23, Section 83 of the Act provides for the punishment which may be summarily awarded to a private soldier by a Company Commander. This clause is a result of the change in the organisation of the Army, and also is a result of the experience gained in working of the disciplinary code in the Army for the last 12 months. The Army, as reorganised, does not provide for a Commanding Officer and a Company Commander for each unit. Experience has shown that it is desirable that the Commanding Officer should be ordinarily the proper person to investigate a charge against a soldier. Provision is made by Clause 27 enabling Commanding Officers in certain cases to delegate powers of summarily disposing of cases to officers serving under them.
Section 24 deals with Section 84, which provides for the manner in which a charge against an officer is to be investigated. This section re-enacts that, with certain modifications—that is, such a case as that in which a commanding officer himself might be the person charged. Paragraph (b) is consequential on the previous paragraph, and (c) introduces the accused's right to elect to be tried by court-martial in cases where an award or punishment would affect pay. Generally speaking, most of these amendments have been made as a result of experience which we have gained during the last twelve months.
Sections 24, 25, 26, 27, 28, 29, 30, 31 and 32, put and agreed to.
SECTION 33.
The following section shall be inserted in the Principal Act after Section 116 thereof:—
"116a.—Where a finding of a courtmartial has been confirmed, the Minister may quash such finding."
Under the rules of procedure there is power to remit sentences, when confirmed, but there is no power to quash the finding, which still remains on record as a conviction against an officer or soldier, and this section authorises the Minister for Defence to quash a finding after confirmation.
Sections 33, 34, 35, 36, 37, 38, 39, 40, 41, 42 and 43, put and agreed to.
Question—"That the Preamble stand part of the Bill"—put and agreed to.
Question—"That the Title stand part of the Bill"—put and agreed to.