took the Chair.
DAIL IN COMMITTEE. - DAIL SUPREME COURT (PENSIONS) BILL, 1925.—THIRD STAGE.
(1) In this Act the expression "Dáil Supreme Court" means the Supreme Court which was constituted under a Decree made in the year 1920 by the Minister for Home Affairs purporting to act under the authority of the First Dáil Eireann.
Before proceeding with the discussion may I ask if the Decree under which this section is based can be made available for Deputies?
I think it was explained on the last day that the Decree was published and was available, as other statutes are available, I believe, in the Library.
I am afraid the Minister has been misinformed. The Decree referred to here, rather the resolution passed by the Dáil, declares "that the establishment of Courts of Justice and Equity be decreed and that the Ministry be empowered when they deem fit to establish courts having criminal jurisdiction." That resolution was passed by the Dáil, but the Decree establishing these courts has not been made public. It has not been made available to Deputies, and before we can legislate on the basis of that Decree it should be published and made available.
I believe the Decree was on sale for a considerable period of time. There is no difference between its availability and the availability of many other documents that we deal with in legislation.
I think any enactment or official statement should be available to Deputies for reference, but this document is not available, and I think it is necessary that Deputies should be in a position to make themselves at least acquainted with the contents of the document, enactment or decree, or whatsover it may be called, upon which this new Bill is to be discussed. Would it be in order to move, A Leas-Chinn Comhairle, that the debate be adjourned until that document is available?
I do not think that there is anything in the Standing Orders that would empower the Deputy to make that motion.
On a point of order, with the greatest respect, is it not within the power and right of a Deputy at any time in Committee, with cause shown or without cause shown, to move to report progress?
May I again submit that it is a matter of ordinary commonsense that there should be available copies of documents upon which subsequent legislation is being founded? We are asked to deal with a decree made by the Minister for Home Affairs. The Dáil does not know, and cannot find out, what that decree contains. Surely it is obligatory upon the Minister, or responsible authorities, to make available, documents of that kind upon which subsequent legislation is being based. Otherwise we are merely working in the dark and dealing with things that we cannot understand.
I submit that the Deputy is rather straining the point. There is no obligation on the Government, generally, or on the Minister introducing a Bill, to circulate to Deputies copies of any statute or statutes which may be referred to in the course of any such Bill. I submit, further, that there is no difference between the availability of this particular document to which Deputy Johnson refers and the availability of other public documents, whether statutes or otherwise.
I think it would be an improper course to refuse to consider further this Bill and put upon the Government, or upon the Minister standing over this Bill, the onus of circulating to Deputies copies of this particular document. As the Minister for Finance has pointed out, it was a public document. It was on sale throughout the country. It is something well within public knowledge—at least as much within public knowledge as other Acts which have been referred to and adverted to here from time to time. In the circumstances, I consider that the course to take is to continue our consideration of this Bill.
May I follow up the point which I made a few minutes ago? I am not asking that the Minister should circulate copies of this document to Deputies. I am asking that the document referred to should be accessible. It may be correct to say that this document was sold in public. There may have been an establishment here and there that was prepared to run the risk of imprisonment and internment for its owners, at the hands of the British authorities, for publishing or selling the document, but it has not been available, so far as I can find, to this Dáil or to the Members of the Dáil in the archives of the Dáil. There have been requests during the past few years to have made available documents, decrees and papers issued by the first and by the second Dáil. Those documents have not yet been made available. Here we are asked to legislate in respect to a decree which is not scheduled, which is not accessible, and the merits of which we are not in a position to discuss. I was allowed to quote from the document referred to but I am only one Deputy. I quoted from that document to show that there were other obligations as well as this obligation. I want to quote from that document now, but the document is not available. I submit that, as a matter of ordinary business procedure, we cannot discuss a Bill based upon a document which is not accessible.
It seems to me that the request Deputy Johnson is putting forward is perfectly reasonable and ought to be met reasonably. I am in thorough agreement with him. It is difficult for Deputies to consider the amendment of a Bill when a certain document, having a bearing on the Bill, is not available. We can only take the word of the Minister for Justice or the Minister for Finance as to what that document or Decree may or may not contain. In fairness to the House, I think Deputy Johnson's request should be met by the Minister and that he should give us an opportunity of learning what this document contains, or make it available in the Library.
I will certainly undertake to have the document placed in the Library. I do not think that there is any Deputy here who endeavoured to see that document and was not able to see it. The position in regard to this document is nowise different from the position regarding any British statute that may be quoted. As a rule Deputies do not feel called upon to look up British statutes which may be cited or referred to. I suggest that Deputies did not feel called upon to look up this particular document. There is no reason why we should not go on with the Committee Stage of the Bill. The Dáil could just as well have refused to go on with the Second Reading. There is really noththing in the point that has been raised. I agree that documents of this nature ought to be available in the Library in the same way as statutes, for the convenience of Deputies who may care to consult them, but I do not think it can be urged that we should take upon ourselves the obligation of circulating this document. If any Deputy thinks there is anything wrong or if he is not satisfied that the section is above board, he can deal with it in that spirit.
This is rather a novel proposal that has been brought forward by Deputy Johnson. I do not think that any such motion came before us at any previous time. I must rule against the Deputy. This Bill has been a considerable time before Deputies and, if this Decree was required, Deputies had ample time to give notice that they required it. I cannot, therefore, accept the motion. The question is—"That Section 1 stand part of the Bill."
"The expression ‘Dáil Supreme Court' means the Supreme Court which was constituted under a Decree made in the year 1920 by the Minister for Home Affairs, purporting to act under the authority of the first Dáil Eireann." That decree, if my memory serves me, dealt with the establishment of a Supreme Court and other minor courts. It gave certain authority to judges; it appointed judges under certain conditions; it dealt with their removal under certain conditions and with substitutes, temporary or otherwise; it dealt with the position of judges of the Land Courts and gave the courts very considerable authority. The decree purported to be under the authority of the first Dáil. That authority is contained in a Resolution moved by the Minister for Home Affairs to the effect that the establishment of Courts of Justice and Equity be decreed and that the Minister be empowered under rule 50 to establish courts having criminal jurisdiction. That was, after discussion, carried. I think if we could have some information as to the number of times this Supreme Court sat, the period of the appointments of the judges under this Supreme Court and the period from their appointment to the last sitting, we would be in a better position to realise the import of this Bill.
While this is merely a definition clause, a great deal depends on it. I think we ought to be told what was the function of those judges and how they discharged it; how often they served, how many months they worked, and in what areas, and whether there were any considerable risks run by them, beyond the risks run by other people, that would justify our passing the remaining sections of this Bill upon the definition. It seems to me that we are entitled to more information of a detailed character respecting this Supreme Court and the judges who constituted it. The question of continuity and the like may come up a little later. Perhaps by that time we may have an opportunity to read the decree again. In the meantime, may we have some information as to the Supreme Court, its constitution, the number of occasions on which it sat, and the kind of risks which were run by the judges who constituted the court.
I suggest that the Deputy has asked many questions which have no real bearing on the Bill. The Deputy ought to appreciate that it is not a question of how many months those judges sat, how many sittings in all, how many risks, as he puts it, they took, the extent of those risks, and so on. The Deputy, I feel, does realise that there is simply one question: whether or not those persons were judges appointed under contract by a person purporting to act with the authority of the Dáil Cabinet and, thereby, with the delegated authority of the Dáil. If that is so, and if they were so appointed, then these other interesting questions are irrelevant. The number of risks they took, how those risks compared with risks taken by other persons up and down the country— questions of that kind might be very interesting as subjects for discussion over the fireside on a winter's evening, but they do not bear, in any real sense, on the Bill under review. If the Deputy puts up a claim here that he ran very much greater risks than all those judges and would be very much entitled, in consequence, to a pension, I would not dream of contradicting him.
I make no such claim.
I said, if the Deputy put up such claim, I would not contradict him.
I made no such proposition.
Nor would I contradict anyone in the country who made a similar claim. But that is not the point. The point is whether we, who claim to inherit both the assets and liabilities of previous Dála, are going to recognise the liability to those persons who were appointed by Mr. Austin Stack in 1920, purporting to act with the authority of the Dáil Cabinet at the time and, thereby, with the authority of the Dáil. We have established a Winding Up Commission for those Dáil courts. We have gone to considerable pains and expense to give permanent validity to their doings. There is at the moment before the Dáil a Bill transferring the powers and authority of that Commission to the High Court, so that at any time henceforward the decrees and decisions of those Dáil courts may be quoted and must be recognised before the established courts of the State. I mention that to show that in other respects we have taken that court system seriously and have gone to considerable trouble and expense to show that. Litigants can quote their decrees and decisions before the courts of the State and they must be recognised and accepted.
Shifting the scene somewhat, in America we are conducting litigation for certain funds outstanding there that were the property of the previous Dáil. I mention that to show that we are claiming the assets of those Parliaments as assets properly descending to us, their legitimate and constitutional successors. If we are claiming the assets, are we bound to accept the liabilities? That is the question; not how many risks these judges took, not whether they had any narrow escapes —such hair-raising escapes, for example, as Deputy Figgis had on a famous occasion——
And as the Minister so successfully avoided on all occasions.
Quite so. Simply whether appointments were made, whether there was a contract, in short —that is the only question. I submit it is the only question those gentlemen would be asked to prove should they decide to base an action, for instance, on this particular claim.
The Deputy knows the date of their appointment, knows that they continued to function from that up to and during the Truce, and that it was in the spring of 1922 that that system was finally disestablished, leaving those judges without a jurisdiction and without any judicial functions. There remains simply the question of what the liability of the State is towards them, and I submit that this State, which has taken the trouble to give permanent validity to all their doings and to absorb and incorporate their decrees in the legal system of the country, and which is contesting strongly in America the proprietory right to certain funds outstanding there, must accept the contractual liability towards those persons who for a while performed judicial functions, and, accordingly, that the Dáil should pass this Bill.
Question put and agreed to.
SECTION 2.
(1) The Minister for Justice may, with the sanction of the Minister for Finance, grant to any person who held office as a judge of the Dáil Supreme Court a pension for his life at such rate as the Minister for Justice shall, with the sanction of the Minister for Finance, think proper but not exceeding two-thirds of the annual salary of which such person was in receipt as a judge of the Dáil Supreme Court immediately before he ceased to hold office as such judge.
(2) Every pension granted under this section shall, subject to the provisions of this Act relating to the suspension of pensions and the avoidance of double pensions, be payable to the person to whom such pension is granted as from the date on which the annual salary of such person as a judge of the Dáil Supreme Court ceased to be paid to him.
(3) Every pension granted under this section shall be charged on and payable out of the Central Fund or the growing produce thereof.
Question proposed—"That Section 2 stand part of the Bill."
The statement of the Minister is more appropriately answered on this section. We are asked to give the Minister for Justice, subject to the sanction of the Minister for Finance, power to grant to any person who held office as a judge of the Dáil Supreme Court a pension for life not exceeding two-thirds of his annual salary. The argument is that it was a liability, a liability of the First Dáil, and consequently a liability of this Dáil. We are not permitted, sir, by your ruling, to find out what other liabilities run concurrent with this liability. Perhaps we shall be allowed to have reference to the documents on which this liability is based before we come to the Report Stage. But the case that is made is that the judges were appointed for life and that the courts to which they were appointed to act as judges ceased to exist. Then where comes the case for a pension for life? Surely it is more in consonance with practice that when an office ceases there should be some lump sum payment by way of commutation or compensation for loss of office through the abolition of that office. So far as obligation goes, there is at least as much obligation to pay a lump sum in compensation as there is a pension for life, and no more the one than the other. Assume that these ex-judges are now 40 years of age and they live to 70 or 75, as they may well live longer, with an easy £500 a year and nothing to do but spend it. They can easily live 30 or 35 years drawing £500 a year, say a sum of £17,500. I think that any arbitrator, taking into account the service rendered, the terms of the appointment and all the circumstances, would not lightly award any sum approaching £17,000 as compensation for the loss of an office of this kind, and from the point of view of the Minister for Finance and the taxpayer, apart from the legal obligation or the obligations in equity that the Minister has spoken about, there is no more liability for a pension for life of £500 a year than there is for a lump sum as compensation for loss of office. I suggest to the Dáil that there would be a greater probability of something less than £17,500 being granted as compensation, or much less than any average life at £500 a year would receive. I think if there has to be compensation for loss of office through the abolition of that office we should ask the Ministry to submit it to the award of an arbitrator. If there is an obligation in the matter it is an obligation at least as much for a lump sum in compensation as for £500 a year pension, and the State would make a profit— certainly it would be more economical and a saving of taxation—if we were to have this matter dealt with by way of award by an arbitrator than that we should allow the Minister to saddle himself with the sum of £500 a year for each of these two, or three, or five pensioners, whatever the number may be. The number, I should point out, is not stated in this section, the reason being that most of the judges have already been placed, but two of them, we are informed, have not been placed.
I am quite at one with the Ministry in desiring that the principle or the fact of continuity should be maintained, that we should accept the responsibilities and the obligations as we look for the assets, but I think that many Deputies would be able to bring forward evidence that officers, even Ministers of State, acting, or purporting to Act, under the authority of the Dáil, made promises which have not been fulfilled. They could bring evidence that would be satisfactory, though not perhaps documentary evidence to show that promises were made by Ministers in respect of quite a number of affairs, but these promises have been renounced. We know that within the last year, not going back at all to the Ministers of the first Dáil even high officers of State of the Saorstát made promises which, because they were alleged not to have had authority to make, have not been fulfilled, perhaps rightly.
We cannot act on the assumption that every promise made by a Minister, which might have been a verbal promise for all we know, was made with the authority of the Dáil. All we know in this case is that the judges were appointed, and we only know that from the fact that they were serving. Except for the Minister's word, we do not know the salaries they were paid. We do not know, and certainly there has not been any statement made here to the effect, that they were promised pensions of two-thirds of their salaries in any circumstances whatever. So far as the obligation goes, there is no more obligation to pay a pension than there is to pay a lump sum. I submit that if there is any obligation to do anything because of loss of office, the Dáil would be wise to refuse this sanction, and to advise the Ministry to seek to get out of the obligation by payment of a lump sum. Therefore I ask the Dáil not to pass this section of the Bill.
We generally refuse to commute pensions, and it is generally found cheaper to pay pensions in the end than to pay sums to commute the pensions. If Deputy Johnson meant it, it is, of course, foolish to suggest that the present value of an annuity of £500 is anything like £17,000. Even if the man, now fifty-three, were to live for ever the value would be only £10,000. I have not the means of making an actuarial calculation at the moment, but I would say that the present value of an annuity of £500, in the case of a man fifty-three years of age, would be nearer £7,000 or £8,000, perhaps £6,000 or £7,000. There is no such sum as £17,000 in question at all. When we were giving pensions in lieu of salaries to people who no longer were to be paid salaries, as there were no duties attaching to the offices they held, who had gone out of office, not by dismissal or removal, but by abolition of the office we had to consider what was fair to give them. The Dáil should remember that the alternative to paying some such pensions as these would be to continue to pay the salaries for life, although no duties were being done. It seems to us reasonable that the ordinary pension should be given, that is a pension of two-thirds of the salary.
You cannot think of this matter in terms of the gratuity that would be given to an unestablished civil servant, or even to an established civil servant of short service, because these people held offices that had tenure far superior to that of any civil servant. A civil servant holds his office at the will and pleasure of the Executive Council. He may be removed without cause shown or reasons stated. These people held offices from which they could not be removed without procedure that was designed to ensure that actually they should not be removed without grave reason. Consequently, I think you cannot think of dealing with the matter on the basis of giving them one or two years' salary. The alternative to giving the pension would, certainly, be simply to continue paying salaries as long as these gentlemen might live.
Will the Minister say how two-thirds is proposed instead of one-fourth or one-fifth?
I suggest that when a claim might be put forward to payment of salary for life, and fairly strong arguments advanced in support of the claim, the minimum pension you can give is the maximum, that is two-thirds.
Question put. The Committee divided: Tá, 28; Níl, 10.
Tá
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Earnán de Blaghd.Thomas Bolger.Seoirse de Bhulbh.Séamus de Búrca.Máighréad Ní Choileáin BeanUí Dhrisceóil.Patrick J. Egan.Thomas Hennessy.Seosamh Mac a' Bhrighde.Liam Mac Cosgair.Seoirse Mac Niocaill.Liam Mac Sioghaird.Liam Mac Aonghusa.Michael K. Noonan.Peadar O hAodha. |
Seán O Bruadair.Séamus O Cruadhlaoich.Pádraig O Dubhthaigh.Eamon O Dúgáin.Aindriú O Láimhin.Séamus O Leadáin.Fionán O Loingsigh.Risteárd O Maolchatha.Séamus O Murchadha.Seán O Raghallaigh.Máirtin O Rodaigh.Seán O Súilleabháin.Mícheál O Tighernaigh.Caoimhghín O hUigín. |
Níl
|
John Daly.Tomás Mac Eoin.Risteárd Mac Fheorais.Risteárd Mac Liam.John T. Nolan. |
Liam O Daimhin.Eamon O Dubhghaill.Seán O Laidhin.Domhnall O Muirgheasa.Domhnall O Mocháin. |
Tellers.—Tá: Eamon O Dúgáin, Liam Mac Sioghaird. Níl: Risteárd Mac Fheorais, Domhnall O Muirgheasa.
Question declared carried.
Sections 3 and 4 ordered to stand part of the Bill.
SECTION 5.
This Act may be cited as the Dáil Supreme Court (Pensions) Act, 1925.
The following amendment stands in my name:—
Before Section 5 to insert a new section as follows:—
"The provisions of this Act shall not apply to any person who was a member or helper of or active sympathiser with any organisation engaged in armed opposition to the late Provisional Government of Ireland or the Government of Saorstát Eireann."
In view of the statement by the Minister for Finance when we were discussing item No. 7 on the Orders of the Day, and especially in view of what he said with regard to the individuals who would benefit under this Bill, I do not think any useful purpose would be served by proposing this amendment. When I put down the amendment, I thought the onus of proving that those people were not in active sympathy with any organisation engaged in armed opposition to the Provisional Government, lay upon themselves. I think now that there is a possibility that the onus might not lie upon those individuals to prove that they were not sympathisers with any organisation in armed opposition. In view of the existing circumstances, and in view of what the Minister has said, I would ask the leave of the Dáil to withdraw the amendment.
Before this matter is decided, I think it would be well to understand what the position is. Are we to understand that the amendment in the name of Deputy Mrs. Collins O'Driscoll is withdrawn, because the persons likely to be affected by this Bill are not those who have been helpers of, or active sympathisers with, any organisation engaged in armed opposition? I have noted that the Deputy voted for the payments of the pensions, and it is quite clear to any observer that the object of the amendment was to prevent a pension being paid to anybody. It will be interesting to know whether the Deputy is now in favour of paying pensions to people whom she believes were active sympathisers with, or helpers of, an organisation engaged in armed opposition.
It is not a question of what I believe at all. I have already set out my reasons for asking the leave of the Dáil to withdraw my amendment.
Amendment, by leave, withdrawn.
I beg to move the following amendment:—
Before Section 5 to insert a new section as follows:—
If any person to whom a pension has been granted under this Act is, during the continuance of such pension, convicted of any crime or offence by a Court of competent jurisdiction in Saorstát Eireann and is sentenced by that court for that crime or offence to imprisonment with or without hard labour for any term exceeding three months, or to penal servitude for any term, the pension so granted to such person shall be forfeited as from the date of such conviction.
If any such conviction and sentence as aforesaid is quashed or annulled, the forfeiture of a pension consequent on such conviction and sentence shall be deemed to have been quashed and annulled also, and the pension shall be thereupon revived and payable together with all arrears thereof accruing since the date of conviction.
I regret I was not present to hear what the Minister had to say in regard to item No. 7 on the Order Paper. The terms of this new section are the terms of the section that appears in the Military Service (Pensions) Bill. I suggest it is not really the intention of the Minister to pay those pensions to persons who might at any time be guilty of a serious offence against the State. The putting in of this section in the Bill would show that we expect the same high standard of good public conduct from our pensioned judges as we do from our pensioned soldiers.
There are one or two things I would like to say with reference to this. First there is no such provision as this in the Courts of Justice Act which provides for judges' pensions. It would be putting those Dáil judges on a different level from the judges of the existing Supreme, High, or Circuit Courts in regard to their pensions. There exist provisions, which are fairly wide, for the forfeiture of judges' pensions. They are in the Forfeiture Act of 1870. Any person holding a pension, who is found guilty of treason or felony, and receives sentence exceeding twelve months' imprisonment, automatically has his pension forfeited. I do not know whether the Deputy would regard that as wide enough, but it is a provision that will apply to these new pensions just as it applies automatically to the pensions of existing judges. It means that if there is a serious offence against the State the pension will be forfeited. The classes of offences that come under the heading of felony are pretty wide. There is another class of offence that might come under the title of treason. I think that provision might suffice.
If the position is that under regulations and laws already existing the pension of a judge can be stopped if he gets twelve months' imprisonment, I certainly would be prepared to say that would meet my objection to an unqualified Bill such as this. In view of the fact that I would not care to prejudice the position of our Dáil judges as compared with the position of those judges who were not Dáil judges, I think that the safeguard of loss of pension on conviction, bringing about punishment of twelve months' imprisonment, is adequate, and I would be prepared, with the leave of the House, to withdraw the amendment.
The Minister for Defence to-day brought forward a Bill dealing with an amendment of the Pensions Act. I am not quite sure how he described the Bill, but if my memory is right, the Bill deals with the possible revocation of pensions granted to soldiers. I think one can find a good many references in the Dáil to the fact that during the time the Supreme Courts were in operation, we were in a period of revolutionary activity, and though they were judges, they were more or less acting in the position of part of the revolutionary authority and not very far apart from active service. It is only because of these circumstances that this Bill has been passed at all. "Let us clear our minds of cant" is a phrase often quoted, and let us remember that although we are talking about this Supreme Court being the legal predecessor of the Saorstát Courts, the facts are that the judges of these courts were more or less militant lawyers, acting supplementarily to the military activities. It seems to me that at least you cannot apply different tests to the revocation of their pensions than you would apply to the revocation of pensions to soldiers. This amendment of Deputy Mulcahy's is taken from the Military Service Pensions Act, and I do not think that we should be asked to make any very great distinction. To say that a soldier may have his pension revoked either on the decision of a Minister or on a conviction involving three months' imprisonment, without hard labour, and to leave it to a conviction for treason, before a judge, or ex-judge can have his pension revoked——
Or a felony of any sort.
Or a felony. I think whatever is applicable in the case of revocation of pensions for soldiers should be made applicable in the case of revocation of pensions of judges. If we were dealing with judges of the court at the same time as we were dealing with pensions for soldiers, I would take the same view, whether they were judges of the Supreme Court or judges of the Saorstát Courts. I think, as a matter of fact, if there is a misdemeanour on the part of an ex-judge very much lighter in character and quality than that of an ex-soldier the offence should be treated as much greater because of the character and the position of the judges, but the amendment of the Deputy is surely reasonable when he tells us he has taken this from the Pensions Clauses applying to soldiers. I think we should ask the Dáil to agree to this amendment, and I do not understand the Minister's objection. I surmised it had been moved as a counter proposition to that of Deputy Mrs. Collins O'Driscoll at the inspiration of the Minister. I thought it was quite a good counter, but if it is not so, I congratulate Deputy Mulcahy on his insight and his sense of justice.
I agree that my amendment is entirely reasonable, and that the grounds upon which I put it down are very sound. But I am satisfied, once it is established that a pensioned judge cannot get away, after offending against the State or offending against public order here. Once I am satisfied with regard to that, I am impressed by the undesirability of placing our Dáil judges in a different position in any way from the ex-British judges that were here. It is on these grounds that I wish to withdraw my amendment by leave of the House and I am sure that aspect of the matter appeals to Deputy Johnson too.
Amendment, by leave, withdrawn.
Question—"That Section 5 stand part of the Bill"—put and agreed to.
Title put and agreed to.