Can the Minister say, for the period since 1939, the total number of men who deserted from the Forces, including the permanent forces, the Volunteer Force and the emergency personnel, and the total number apprehended and dealt with by the Army authorities—either court martialled or made to suffer penalties of one kind or another.
Committee on Finance. - Defence Forces (Temporary Provisions) Bill, 1946—Committee and Final Stages.
Sections 1 to 12, inclusive, agreed to.
Question proposed: "That Section 13 stand part of the Bill."
We may have been discussing this matter at cross-purposes.
I think we were.
The Deputy will probably remember that I gave the exact figures on a former occasion. The number affected by this section is 4,000 and the number of men who either surrendered themselves or were apprehended is 2,500. These men are free of any penalty under this measure.
They have purged their guilt.
They may be taken as men who came back or were apprehended and who continued later to give service. The actual number of men whom we can firmly describe as deserters to whom this section applies is 4,000. There may be a few more than that number—I am not sure of the exact figure. It may be 4,100. I should say then that the number of persons passing through the Army from 1939 up to a recent date was roughly 60,000.
That is, passing through, but not all serving at one time?
Who joined the emergency forces and continued to serve until they either were retired on grounds of ill-health or for some other reason or were given indefinite leave. That number joined the forces during the emergency. For a considerable period of time, there were 40,000, and possibly 42,000 men serving, but the figure I gave the other day of 35,000 was in fact an underestimate. It was nearer 40,000 during the peak years of the danger period.
Then my figures were almost accurate the other day. Approximately 7,000 did desert and the maximum strength of the Army serving was about 42,000.
They were completely inaccurate in respect to the statement which the Deputy made, that almost a quarter of the Army deserted. To my mind, that was a very damaging statement to have made. I do not know whether the Deputy made it firmly or whether he made it in the belief that the figures which he secured were correct figures or not. It would be entirely wrong to say that a quarter of the Army deserted, as that figure would not be correct in any circumstances.
A fifth might be nearer.
It would be correct to say, as I myself stated in the course of a recent debate, that there were 4,000 men affected by the Emergency Powers Order which we were bringing in and about 2,000 others. I gave the figure of, roughly, 7,000.
Then the figure of 7,000 is accurate?
If the Deputy wishes to have it that way, yes.
There is no question of wishing. It is a fact that 7,000 did desert? It is another matter as to how many were serving on a particular date or, as the Minister puts it, how many passed through the Army. The maximum strength attested over the whole period of the emergency was approximately 60,000, but I think the maximum ever serving was 42,000 at any particular time.
I suppose that would be correct.
There were probably not as many as 42,000?
There were 42,000 for a considerable period.
And, for a considerable period, there was less than that?
There were 40,000. The average I took the other day was 35,000. I was then trying to correct the Deputy, that even if 7,000 deserted that 7,000 was not a quarter of the forces.
Then it would be a fifth?
Yes.
So that, if the Minister had told us the total figure at first, instead of our having to drag it out in this way, there might not be any need for the mistake.
We were dealing only with a particular section of individuals and I presume that is what we were talking about.
I was talking about the total number who attested.
Surely the number who deserted should be related to 60,000, the total number who attested?
But they did not all serve together.
But those who deserted did not all desert together.
When the Deputy knows as much more about the Army he will discover that 60,000 attested——
I know, but it is a question of proportion. The 7,000 must be related to the 60,000.
This section proposes to incorporate in a piece of permanent legislation Emergency Powers Order No. 362, 1945. I think it is very objectionable to embody in a common piece of legislation an Order of that sort. I would like to hear the Minister justifying this section. I do not want to condone or defend deserters, but I believe the punishment provided here is altogether too drastic, when you bear in mind the reason why some men deserted. Some deserted, possibly, to join other armies, for the purpose of having an opportunity to take part in war and the excitement associated with all that, while other members of the Defence Forces deserted for financial reasons, the allowances not being sufficient to provide a decent livelihood for them and their families.
While I do not want to defend a deserter and think a deserter should be punished, it seems to me that paragraph (a) of sub-section (2) is altogether too drastic. I think that (b), (c), (d) would be sufficient punishment for a deserter, that is, that he would not be entitled to any pension or gratuity. Surely it is a thoroughly drastic provision to deny to those men, when they come back to this country, the right of employment paid for by any moneys from the Central Fund, or employment by any local authority, or the right to hold an office as a paid member of any such board or body? There would need to be very exceptional and very extreme circumstances before punishment of that sort should be inflicted on an individual who, perhaps, has family responsibilities. So far as punishment is concerned, it ought to be within the powers of the normal authorities within the Army, without going outside the Army itself, to other Departments of State, to exercise punishment. I merely rise to ask the Minister again to justify such drastic and severe punishment.
As I said a moment ago, roughly 60,000 men offered their services to the State and were accepted. A very much larger number of people offered their services, but for one reason or another they were not accepted. Now, that shows that there was a patriotic fervour there, that our people were prepared to defend this nation in whatever circumstances were likely to arise. There was no period during the emergency when I could say—or, I am sure, when Deputy Hughes could say—that the danger element was not there. It was always there. If 4,000 individuals decided to better their conditions as he suggests, by deserting, that is no reason why we should make the conditions in this section easier for them. There were very large numbers of men who continued to serve the State loyally. They had the same circumstances surrounding themselves as the individuals to whom the Deputy refers, and they had the same responsibilities.
I think the Minister should not misunderstand me. I agree that the punishment should be there, but it is the measure of punishment that we disagree on.
I do not want to misrepresent the Deputy. He is asking for the reasons why we do it, and the reasons are clear. We want to ensure that whatever number of vacancies is likely to arise in any of the services mentioned in the section will go to the people who continued to serve this State loyally and patriotically and not to some other persons who would crash in over the heads of these individuals. We are going to ensure that the men who continued to serve the State will be the first to be considered for these vacancies, whatever number there may be. There may not be a whole lot, there may not be as many as we would like, but whatever number there is will be held for those men who served the State as they should have served it. I do not want, no more than any other Deputy, to act in any vindictive spirit, but I want to ensure for the future that this sort of thing will not be undertaken lightly. We want to ensure that, in any future emergency, men will know where they stand and will not lightly undertake a contract with the State and just as lightly break it. We want to ensure that discipline will be maintained at all times in the Army and it is only by taking action of the type contained in this section that we will be able to maintain that discipline.
On this question of the disabilities imposed in Section 13, I should like to know from the Minister whether, for the future, any men who desert will be court-martialled in the ordinary way by Army officers or whether this is regarded as the penalty they will incur automatically? Does it follow they will be court-martialled and will also suffer the penalty set out in Section 13?
This affects only the type of person mentioned in the section. The normal courts concerned with military discipline will continue in the future.
This applies only to the emergency?
Yes, only to the emergency, and it deals with the type of people mentioned here.
Question put and agreed to.
Section 14 put and agreed to.
Question proposed: "That Section 15 stand part of the Bill."
I should like to know what is the necessity for this section. In the ordinary way any soldier or any individual, because it applies, to a soldier the same as to an individual, who is guilty of larceny may be charged summarily or on indictment. It seems to me that if a soldier appropriates Army property, he can be tried under the Larceny Act, 1916, and punishment can be inflicted if he is convicted. This is merely an additional power which the Minister has to apprehend these people and I do not think that it is necessary.
This is to deal with members of the Second Line Reserve, who will retain their uniforms and equipment. Unfortunately, heretofore we had cases of individuals joining the L.D.F. and other organisations, serving for a very short time and just disappearing. It was impossible to recover their equipment and this section merely provides that, for one reason or another, the district justice will be in a position to order the individual to make payment for the goods which he will have, either through negligence or some other cause, done away with.
Am I to take it that this is to meet the case of a man who is charged and who is given the benefit of the Probation of Offenders Act?
Yes. We are not looking for a conviction.
Would it not be better to put it this way, that the court, without proceeding to a conviction, may order him to make payment? It looks bad to say, whether he is convicted or not, you may compel him to pay compensation. I think it would be better if you use the formula of the Probation of Offenders Act and insert words suggesting that the Court, having satisfied itself that an offence was committed, may, without proceeding to a conviction, order the individual to pay compensation. I do not like the phraseology used in paragraph (b). It leaves it open to the suggestion that whether or not the court is satisfied an offence has been committed, it may compel the individual to pay compensation.
There may be circumstances where we would have to have it in the wider form. We do not want a conviction and we are leaving it in a form in which the district justice can fine the person or compel him to pay compensation. There may, and I am sure there will, be circumstances in which it will be necessary for the district justice to enforce some other penalty—to convict.
But if the individual did not make away with the article? If he made away with it, if he sold or pawned it and if it is not recovered by the Minister in the normal way then, if he is convicted, he should pay the penalty of the conviction. It seems a new form of offence that, if the person is not convicted of making away, pawning, damaging or destroying the article, he should still be ordered to pay compensation to the Minister in respect of it.
The district justice might not like to put the slur of conviction on an individual. There may be circumstances in which he would rather do the other thing. We want to have wider powers and be safeguarded to the extent that, if a rifle or ammunition, for instance, has disappeared and the individual will either not give us reasonable help or will say that he does not know where it is—if it has disappeared and he does not give the State help to recover it—then it may be necessary to convict.
If a person has ammunition or a rifle, then, of course, he should be convicted—if it is proved that he has taken it.
Not necessarily. He might not have been negligent.
Assuming he did not take it mala fide or with intent to hold it permanently; but if such a person is found in possession of an article of clothing, military uniform, or in possession of a rifle, under the provisions of the Probation of Offenders Act the district justice could still dismiss the case and order restitution of the property. I think the Minister is given very wide power here. As long as the Minister gets the article back, he would be satisfied, provided it is in proper condition. Under the law, the district justice can order that the article be returned or else he can convict. Assuming he finds the article has been taken by the person and orders restitution, and in the normal way he proposes to dismiss the case, it seems drastic that he should impose a fine on the soldier.
That is the normal procedure in law—as well as convicting, imposing a fine.
I am not quarrelling with the point of view of the Minister, but with the principle. Here you are creating a new offence. It is immaterial whether he steals, makes away with or deals negligently with public property. You are creating a new offence and he will be charged with that offence under Section 15 (a). In (a) you say that such person shall be guilty and shall be liable on summary conviction to a fine not exceeding £5. In paragraph (b) you say that if he is tried, whether the court convicts him or not of this offence it may order him to pay the Minister the value of the article.
I feel it would be much better to couple that provision in some form with (a) and say that he shall be liable on summary conviction to a fine not exceeding £5 and, in addition, the value of the article, or, alternatively, that the court having satisfied itself an offence has been committed, does not proceed to a conviction but assesses the amount of the compensation which the individual should pay. In other words, you are extending the principle of probation to a man, compelling him to pay compensation at the same time. If the court makes no conviction, you are compelling the individual to pay compensation where he has not been found guilty of a specific offence. I think the principle is very wrong.
I think the word "may" qualifies the whole thing.
It becomes "shall" in practice.
This section deals with reservists and not with the Regular Army.
Irrespective of what it deals with, it seems extraordinary for an individual to be acquitted of an offence and, at the same time, be compelled to pay the value of the article.
Is there anything wrong in that?
Under the Probation Act the case would be dismissed, while the justice might order the return of the article.
The Minister is confusing two things. The old procedure dealt with larceny, but here you are introducing a specific offence. If a person does any of the things mentioned in the section he is liable to prosecution for a specific offence. If you proceed to assess compensation for public property negligently lost, without proceeding to a conviction, you are establishing an extraordinary principle. The court without proceeding to conviction, and without having made an order convicting, proceeds forthwith to assess compensation. I think the principle is bad and I should like the Minister to look into the matter.
We examined this matter very closely. If the Deputy reads the section he will see the words "or neglects or refuses to deliver up on demand". That makes it very emphatic.
Under this section I submit a court need not satisfy itself that a person is guilty and under paragraph (b) may enforce a fine. That is the real danger. As the law stands, so far as the guilt of an individual is concerned, before being punished either by a fine or otherwise, his guilt must be established. Here you are going to allow a court to inflict punishment without establishing guilt. That is something the House should not stand for. The Minister does not intend that, but from my interpretation of the section I submit that is what will happen.
I submit that paragraph (b) needs looking into:
"the court by which such person is tried may, whether it convicts him of such offence or not, order him to pay to the Minister the value of the article."
You must qualify that.
I will have it examined again from the point of view of the Deputy.
You cannot acquit a person and then tell him to pay compensation for the value of the article.
If he is not guilty, you would not be entitled as a matter of justice to impose a penalty.
The point the Deputy is making is that the court in that case should not have power to order him to pay the value of the article.
Unless you were satisfied that he was guilty.
Will not the judge decide that?
Assuming that he is not convicted, he may still order him to pay to the Minister the value of the article.
Why give him power to do it?
If a judge comes to the conclusion that a man is not guilty he is not going to compel him to pay compensation. This does not empower him to inflict a fine if a person is not guilty.
If a person is charged under this section and the court acquits him of the offence, it may still order him to pay the value of the article. I suggest that the old form under the Probation of Offenders Act was better. The court there could dismiss the charge under the Probation of Offenders Act but could order restitution.
I will have it examined to see what we can do about it.
Question put and agreed to.
Sections 16, 17 and 18 agreed to.
SECTION 19.
Question proposed: "That Section 19 stand part of the Bill."
Does this section allow a person to wear uniform in a play or dramatic presentation, and would that person be entitled to wear a decoration or a medal? Such a case will hardly arise.
You mean in a stage production?
Yes.
We regularly lend uniforms.
Question put and agreed to.
SECTION 20.
Question proposed: "That Section 20 stand part of the Bill."
Is it the road tax of the vehicle or the driver's licence is referred to here?
The driver's licence.
I do not know whether a driver's licence is looked upon as a certificate of efficiency. If it is, I submit that a soldier should have it as well as a civilian. Does this mean that any soldier could drive?
No. As a matter of fact there are three certificates in that respect, and unless the soldier gets one of them he cannot drive at all.
I feel that a contribution from the Army, whether in the way of road tax or driver's licence, should be the same as in the case of civilians, because the Army is using the roads. If the roads were maintained out of the Central Fund only it might not effect the situation, but when local authorities have responsibility for maintaining the roads, and contributing a substantial portion of road upkeep I submit that the policy of letting the Army out without making any contribution for road upkeep is something of which the House should not approve. I think we should insist on the Army making their normal contribution to road upkeep just the same as any civilian in the country.
This is not a question of road upkeep. It is a matter of drivers' licences pure and simple. The difficulty is this: I may be driving a car to-day; you may be driving it to-morrow; you have to get a licence and I have to get a licence and neither of us may drive a car for perhaps 12 months and nobody else can use our licences. We have had this all throught the emergency but the number of men in future will be diminishing very considerably. The amount would be very small.
I object only on principle but I see the Minister's difficulty.
That is the difficulty, rather than the amount of money involved. We would willingly pay the amount if the other difficulty were not there.
Up to now the normal procedure has been that they were issued with the ordinary Army permit. Was that done under Emergency Powers Order?
No. Under an Act.
Does that mean you paid the ordinary licence fee up to the time of the emergency?
Yes. The emergency exemption was provided in Section 56 of the No. 2 Act of 1940.
Section put and agreed to.
SECTION 21.
Question proposed: "That Section 21 stand part of the Bill."
Will the Minister say what members of foreign armies are entitled to wear uniforms in this country?
Actually, all members of States which have applied for and have received permission. Numerous officers and men of foreign armies can be seen in the city at the present time.
Yes.
These are people who, through their diplomatic representatives, have made representations to the Department of External Affairs. Permission was granted to them to come into the country in uniform and I presume that will continue until normal times return. This practice is not peculiar to this nation. It exists in every State in the world. Some years ago, when pilgrims from our Army went to Rome, they had to receive special permission to enter Italian territory in uniform. The same applies in France. It applies practically all over the world. We are making it applicable here also.
Is the application for permission merely a matter of form or are the circumstances taken into consideration?
The position at present is that the diplomatic representatives here made personal representations.
I do not mean that. What I mean is, does it follow that if an application is made permission is granted?
Oh, no.
Do you take into account that there must be good grounds?
There must be reasonable grounds for the desire to enter the State in uniform. Of course, I should say that this does not apply to diplomatic representatives. Diplomatic representatives of every State are entitled to appear in uniform if they are entitled to wear the uniform.
Would it apply in the case of army jumping teams coming to the horse show?
There would be no difficulty about that. In that case, permission would be granted automatically.
Question put and agreed to.
Sections 22 and 23 agreed to.
Schedule and Title agreed to.
Bill reported without amendment.
When is it proposed to take the Report Stage?
In view of the urgency, I would appeal to have the other stages taken now. As Deputies know, it would be necessary to have this Bill enacted by the 31st March. The Seanad, naturally, will expect to have two days to discuss this Bill. I have looked up the dates that are available. If I go into the Seanad with this Bill on the 20th, I presume they will give me the Second Stage. If they could not take the following stages, say, on the next day, they would have to take it on the 27th. The Bill must be with the President not less than five days before he can sign it. That would give only four days. I was hoping that I might be able to go to the Seanad to-morrow and then deal with the Committee and other stages on the 20th. That would leave the necessary number of days that are required for the Bill to be with the President. I would therefore ask the House to consider giving me the other stages to-day.
There would be no difficulty in giving the Minister all stages to-day but the House does not appear to be satisfied with Section 15 (b) in its present form.
In respect to that, I will undertake to have it carefully examined. That is as far as I can go because, not being a legal man, I am not going to dispute what the legal people have put up. However, I will undertake to have it examined.
Before you go to the Seanad?
Yes and, if necessary, have it amended in the Seanad.
If it is amended in the Seanad it will come back here.
I should hope then to be back by the 21st.
Would the Minister be prepared to accept an amendment now, with your permission?
He said he would have to examine it.
Agreed to take remaining stages now.
Bill received for final consideration and passed.