Deputy Burke was pointing out that the Taoiseach said this money was collected for Sinn Féin and the work it was doing for Ireland.
Sinn Féin Funds Bill, 1947—Committee Stage (Resumed).
Mr. Burke
By the Irish people.
By the Irish people, and now the Oireachtas is the body best qualified to determine how it should be spent.
The Deputy seems to have got away from Section 4. He is not the exception in that, I presume.
I do not want to pursue this very far.
You are not the only exception.
That avoids the whole point.
Mr. Burke
I was only answering your analogy of the trade unions.
That avoids the whole point. It is not what we think are the rights and wrongs of the issue joined between these parties in the courts that matters. I know nothing of the merits at all. I know nothing of the facts except what the Taoiseach has said in the House and what Mrs. Buckley and her fellow-plaintiff have circulated to Deputies of the House. The only thing I know is that somebody who is insignificant and poor and ill-affected has managed to get protection from the courts.
Is not the Deputy saying that for the third time?
Deputy Burke made a short intervention.
Deputy Burke might be regarded as a model for Deputy Dillon in the matter of order.
My contention is that their right to be there shall not be disturbed. That is the mistake Deputy Burke is making and it is possibly the mistake the Taoiseach is falling into. The merits are no business of ours. While people are in the courts they are in sanctuary from us, but by this Bill we seek to break that sanctuary for all the citizens of the State.
I would like to correct one remark. Deputy Mulcahy has spoken as one of those who knew something about the manner in which these funds were collected. Deputy Mulcahy spoke when this Bill was introduced and here is what he said on that occasion (Volume 104, column 1756):—
"I think anybody with any connection with that matter in the past or having any connection with the law, must agree that the courts could not arrive at a settlement of any satisfactory kind in a case of this particular nature and that any court action simply meant frittering away money. It is regrettable that money has been frittered away in legal costs since 1922 when the matter could have been decided in a sensible way and some decision come to without giving the courts an expensive job which they could not be expected to do. It is for these reasons that I raise a technical objection to the Bill but we shall be glad to see the terms of it and to give it any consideration that may be necessary."
Is he not dishonest?
What?
Go on; I have plenty to say yet; I do not want to interrupt you.
I ask any person reading that to ask himself what was the attitude of Deputy Mulcahy towards this when the Bill was introduced?
Before he saw the Bill?
All right. I was asked for a statement and I gave a statement and if that statement is read in connection with this it will be quite clear what was the attitude of Deputy Mulcahy before the legal gentlemen came along and gave their version of it. I do not think it is necessary for me to say any more.
I think it is necessary to put into juxtaposition with that quotation of mine a version of that given by the Taoiseach on the 20th March, 1947 (Volume 104, column 2536):—
"Deputy Mulcahy, apparently unconsciously, was right in saying that the ordinary courts were not the courts to try this."
I would like to hear the Taoiseach reconcile the terms of my statement when opposing in a technical way the introduction of this Bill before we saw it, with the suggestion that I said that the ordinary courts were not the courts to try this. As regards the statement read by the Taoiseach, the only thing I might object to in reading it now is that it was rather commenting here on a case that was before the courts, because the only suggestion I can find in this is that the courts would be a very difficult place to arrive at a decision as to what should be done with these funds. But I do not think that the courts would have much difficulty in deciding the claim of a person claiming the funds. There may be something warranted in the expenditure of all the money to establish the claim that is before the courts, but I cannot easily imagine a group of people legitimately, at least effectively, before the courts of to-day claiming that they are the legal and legitimate descendants of Sinn Féin. I do not want to go into that matter any further, but if the Taoiseach wants to read into that statement a suggestion of mine that I approved of passing legislation here to quash a case already in the courts, he is welcome to put that interpretation on it, but the Taoiseach must be in a very difficult position.
Not a bit.
He must be, or he would not twist and drag these things into a discussion of the merits of the proposals in the Bill.
I am only wondering at what a change of mind occurred when other people started the hare going.
The Taoiseach has all the right to wonder that any man may have, and he has all the right and power to drag hares across this thing. If the Taoiseach wants to suggest that I approved at any time of introducing legislation here to prevent the courts dealing with a case in the courts, I should like to ask the Taoiseach to quote the particular sentence.
I have quoted the Deputy. It is on record. Any Deputy can read the statement and draw his own meaning from it.
Will the Taoiseach quote the words which suggest that in any way I either approved, or suggested that I might approve, of introducing legislation here to quash a case that was in the courts.
The Deputy had been informed of the decision.
By whom?
Does this arise on Section 4?
I am asking the Taoiseach, in the light of his suggestion here, to quote from any statement of mine, words that would suggest that I approved, or even suggested that I might approve, of the introduction of legislation here to quash a case in the courts.
There is no use——
I challenge the Taoiseach to quote the words.
I shall read what is here:—
"I think anybody with any connection with that matter in the past or having any connection with the law, must agree that the courts could not arrive at a settlement of any satisfactory kind in a case of this particular nature and that any court action simply meant frittering away money. It is regrettable that money has been frittered away in legal costs..."
What is the meaning of saying that the courts could not arrive at a settlement of any satisfactory kind in a case of this particular nature, if the suggestion was not there that perhaps a body like this, which was the only other body that could deal with it was a more natural one, or, not to make any positive assertion, that the courts were not a satisfactory tribunal to settle a matter of this sort?
The House would be the only body for planning a solution of the problem of disposing of these funds——
That was the alternative.
——if long years had not been allowed to pass and the case had not actually come into the courts.
The Deputy was anxious to hurry it up in the end, lest there would be more money wasted.
I suggest to the Taoiseach that when a case is brought into the courts, that case should be allowed to finish in the courts.
Hear, hear. That is the issue.
We cannot jump from one section to another.
You will allow me, Sir, to say——
On the appropriate section.
We established a tradition in this House on a few Bills that have gone through in the past— on the School Attendance Bill, on the Trades Union Bill, and on the Public Health Bill—that if a few people persist by force of their arguments, even though the majority in the House beat down their arguments, we shall kill the thing that is rotten. We killed it in the School Attendance Bill and it is being killed in the Trades Union Bill and in the Public Health Bill. We shall kill the things that are rotten in this Bill. The Taoiseach has introduced this matter on Section 4 and I want completely and fully to repudiate the suggestion that the Taoiseach has made.
I was not a member of Sinn Féin and, when this Bill was introduced to deal with Sinn Féin funds, I did not say anything about it, but to my mind there is a danger that the biggest question of all will be overlooked in the discussion as to the propriety of the appointment of the Chief Justice as chairman of this committee. There is a fundamental issue in this Bill and the debate on that should be on Section 10, but I should like to point out to the Taoiseach that we have had Totalitarian States in the past and that they all began by the withdrawal of the rights of ordinary citizens to access to the courts.
If the Deputy would argue that on Section 10, it would be more relevant.
In deference to what you say, Sir, I shall postpone my remarks until Section 10.
I have a few remarks to make on this Bill, and this being my first opportunity, I want to say that I welcome the Bill. I am one of the members of the old Sinn Féin organisation. My association with it goes back to 1907, to the time of the memorable by-election in Leitrim when Dolan was nominated. When this Bill was introduced there was much commotion in the ranks of old Sinn Féiners throughout the country and I took the opportunity to consult with very many old members of the Sinn Féin organisation throughout County Louth as to what their views were on this Bill.
I should like to remind the Deputy that we are now on Section 4 and that Section 10 would give him a much wider scope.
This section was one of the sections that satisfied most of the old members of Sinn Féin with whom I discussed the matter—the fact that the President of the Supreme Court would be the chairman of this committee established for the purpose of dealing with the funds. For these reasons, I support the Bill. I make no apology to a man like Deputy Mulcahy who has given such long service in the national cause and, least of all, to Deputy Dillon. I think the Taoiseach is doing a good day's work to put an end once and for all to the squandermania which has set in in what is left of the old headquarters of Sinn Féin. I should like to know if this fund did not exist, what would be the Sinn Féin executive to-day or would there be any executive? Very few would be concerned with Sinn Féin or what is left of it, if it were not for the fact that there is £20,000 at stake.
We have had a very invaluable intervention from Deputy Walsh. He asserts, as a member of Sinn Féin since 1907, that the executive of Sinn Féin is still in existence and that this Bill is designed to prevent the executive from spending its own money.
It is not their money.
Did you not say—and you are an old member of Sinn Féin— that they are the remainder of the executive?
I said that the old members of Sinn Féin would have the right to decide how that money was to be disposed of.
But we are not the old members of Sinn Féin. I never was in Sinn Féin in my life.
You certainly are not.
The Deputy himself has said that it is the executive of Sinn Féin that is there surviving and he has said that he approves the Bill because it is designed to take from the executive the funds he admits are its property and he speaks with 40 years authority as a member of the organisation.
May I ask who is in possession?
Deputy Dillon.
The Taoiseach does not like this, does he?
I just wanted to know if it was some Deputy at the back, if Deputy Dillon was doing his usual bulldozing.
He just wanted to reassure Deputies that if they get into too deep water, old Faithful will come into operation again, so do not worry, but, for God's sake, stay sitting down. That is what that intervention means —you have done enough harm; do not get up again.
That is what you think.
We have the testimony here of a member of Sinn Féin with 40 years' experience behind him as a member of that body. Have we any greater authority than he to speak of was is the true situation to-day? He assures us that it is the remnant of the executive of Sinn Féin who are squandering this money in litigation. The whole case upon which this Bill was founded by the Taoiseach is that these people are not the executive of Sinn Féin. Does that make any difference to Deputy Walsh? Not a "hate". The whole foundation and justification put forward by the Taoiseach to the Bill——
The Deputy is repeating himself obviously.
You heard Deputy Walsh say——
Quite, and I have heard Deputy Dillon reply twice in the same words.
He is trying to convert him.
It is no harm to rub it in.
I do not see how Deputy Walsh can walk into the Lobby and vote solemnly to take from the executive of Sinn Féin the right to spend their own money. But observe the infallible sagacity of the Taoiseach, because if ever there was a Deputy who represents the man down the country it is Deputy Walsh——
And he is proud of it.
So well he might. He says that, when he came to read this Bill, there was one section of it which made him like it real well and that was that this whole business was to be given over to a high-up judge, a higher judge than the judge who looked into it before. May I say to Deputy Walsh that two and three-quarter hours ago I said that one of the purposes of the insertion of this section was to persuade the people down the country that the Taoiseach was not taking this business out of the hands of the judiciary but that what he was really doing was taking it out of the hands of a low-down judge and putting it into the hands of a big high judge and that the decent, innocent, simple people down the country would swallow that.
The Deputy is repeating what he said two and three-quarter hours ago.
The very thing which I forewarned the House against, and which the Taoiseach most angrily denied, Deputy Walsh says is the very reason he intends to vote for the Bill. The Taoiseach has emphasised that nothing was further from his mind than the creation of such an impression. Does it make any difference? It is six to four on Deputy Walsh walking through the Lobby with the Taoiseach and the pair of them, by their own disclosures in the House this afternoon, are poles apart—one denying the existence of the executive of Sinn Féin and the other asserting it, one glorying that this matter has been taken out of the hands of a lowly judge and put in the hands of a lofty judge and the other denying that that transaction is in contemplation. Of such is Fianna Fáil. Will they blame me if my last words on this section are "God save Ireland"?
It seems to me that a very large smoke-screen has been created around this section when the simple issue is whether the Chief Justice is the proper person to be chairman of this board. I did not hear anybody suggest that he is not the proper person to be chairman of it.
The Deputy was not listening.
If the Chief Justice were not nominated in this section, if some person other than the Chief Justice were nominated, we would then have Deputy Dillon shouting that it was another Fianna Fáil wangle, that somebody had been put in for some sinister political motive, but because the Chief Justice has been put into this section as chairman, Deputy Dillon and other members of the Opposition want to create the impression that the judiciary are being interfered with. It has already been pointed out that under various other measures the judges of this country have given their services in similar circumstances.
In similar circumstances?
I can well visualise what a smoke-screen would be created here if it were not the Chief Justice who, because of his high office, nobody can suggest, would not be completely impartial and would not do his utmost to comply with the intentions of the Oireachtas as expressed in this measure. The debate has strayed a very long way from the principle involved in the section, which, as I say, is simply whether the Chief Justice is the proper person to be chairman of this board or not. That is the issue before us, and I do not know how even Deputy Dillon has the hardihood to suggest that there is something wrong in this section simply because the Chief Justice is so nominated.
Deputy Walsh said that the principal object of this measure was to stop the squandermania at the headquarters of Sinn Féin.
What is left of it.
I should like to hear Deputy Walsh develop that in relation to why the courts should be prevented from working on a case in front of them.
Deputy Walsh's reason for supporting this section arises from practical experience he has had of another Sinn Féin fund in the town of Drogheda. We had a considerable amount of money and it got into the hands of the solicitors, and I have the documents in my possession to show that they manoeuvred it until there were no fewer than 12 adjournments and practically nothing was left but the amount of the costs of the law agents.
Question put.
The Committee divided: Tá, 48; Níl, 30.
Tá.
- Aiken, Frank.
- Allen, Denis.
- Bartley, Gerald.
- Beegan, Patrick.
- Blaney, Neal.
- Brady, Brian.
- Brady, Seán.
- Breathnach, Cormac.
- Breslin, Cormac.
- Burke, Patrick (County Dublin).
- Butler, Bernard.
- Carter, Thomas.
- Childers, Erskine H.
- Colbert, Michael.
- Colley Harry.
- Crowley, Honor Mary.
- Derrig, Thomas.
- De Valera, Eamon.
- De Valera, Vivion.
- Flynn, Stephen.
- Gorry, Patrick J.
- Harris, Thomas.
- Hilliard, Michael.
- Humphreys, Francis.
- Kennedy, Michael J.
- Killilea, Mark.
- Kilroy, James.
- Lemass, Seán F.
- Little, Patrick J.
- Loughman, Frank.
- Lydon, Michael F.
- McCann, John.
- Moran, Michael.
- Moylan, Seán.
- O Briain, Donnchadh.
- O'Grady, Seán.
- O'Loghlen, Peter J.
- O'Reilly, Matthew.
- Rice, Bridget M.
- Ruttledge, Patrick J.
- Ryan, James.
- Sheridan, Michael.
- Skinner, Leo B.
- Smith, Patrick.
- Traynor, Oscar.
- Ua Donnchadha, Dómhnall.
- Walsh, Laurence.
- Walsh, Richard.
Níl.
- Anthony, Richard S.
- Cafferky, Dominick.
- Coburn, James.
- Cogan, Patrick.
- Coogan, Eamonn.
- Corish, Brendan.
- Cosgrave, Liam.
- Davin, William.
- Dillon, James M.
- Dockrell, Henry M.
- Donnellan, Michael.
- Doyle, Peadar S.
- Giles, Patrick.
- Heskin, Denis.
- Hughes, James.
- Keating, John.
- Keyes, Michael.
- McFadden, Michael Og.
- McGilligan, Patrick.
- McMenamin, Daniel.
- Morrissey, Daniel.
- Mulcahy, Richard.
- Murphy, Timothy J.
- O'Higgins, Thomas F.
- O'Leary, John.
- O'Reilly, Patrick.
- Redmond, Bridget M.
- Roddy, Martin.
- Rogers, Patrick J.
- Sheldon, William A. W.
Tellers:—Tá: Deputies O Cinnéide and O Briain; Níl: Deputies Doyle and McMenamin.
Question declared carried.
SECTION 5.
Question proposed: "That Section 5 stand part of the Bill."
It is quite in keeping with the spirit in which the Government has introduced this measure that, having put the cloak of the Chief Justice over their committee in the way that has so much impressed Deputy Walsh and Deputy Burke, they should take the disbursement of the funds that they hope by this measure to lay their hands on entirely into their own hands.
That does not arise on Section 5.
It says: "The first ordinary members of the board shall be appointed by the Government." I do not know what other interpretation can be attached to these words, if it is not the interpretation I have given them.
I misunderstood the Deputy.
It is quite in keeping with the Party spirit that is trampling on the courts, as this Bill plans, that the disbursement of the funds it is hoped thereby to secure would be entirely in the hands of Party nominees for Party funds.
The situation is even worse than Deputy Mulcahy has described. We have now a board which is to be presided over either by the Chief Justice or as set out in Section 4. Then we have ordinary members to be appointed by the Government. Each one of those ordinary members is under the control of the Government. He is to hold office until he dies, resigns or is removed from office. Provision is then made to enable him to resign under sub-section (4), and provision is made in sub-section (3) that as soon as anybody either resigns, dies or is removed from office, another appointee of the Government is to take his place. Then you come to the all-important question: How is a person to be removed? The machinery there is novel, but certainly plays into the hands of the Party. A committee consisting of three persons is to be nominated by the Chief Justice—that is to say, the Chief Justice who has taken his position in this, in disdain of his own court, and at the request, possibly at the orders, of the Government. These three people are to inquire into and report upon the question whether or not a particular, ordinary member of the board shall cease to hold office, and if by a majority they say that that should be done, then that man leaves.
The machinery for the inquiry is to be set going by the Attorney-General. So far, the distinction that has been made between the Attorney-General and a judge is that a judge once appointed is put in a position of independence. First of all, he is appointed for a particular term and can only be removed by a very special procedure, which is not ordinarily going to be operated against him, and his salary cannot be changed downwards while he is in office. Therefore, so far as the ordinary practice can go, the judges in this country are put in a position in which they can be independent and are expected to be independent. In opposition to that, the Constitution quite boldly sets out that the Attorney-General is a creature of the Government. He is appointed by the Government and can be removed from office at any moment. The position now is that we are to have a board composed completely and entirely of Government appointees and if they happen to show some sort of independence and do not operate in the way the Government want, then the Government press a button and their other appointed person, the Attorney-General, comes in. They get him to make a request for an inquiry into whether or not a person should be removed from office and the board which considers that is to be a group of three, appointed by the Chief Justice who, as far as the debate goes to-day, has been told to take up this post by the Government and more or less told what he is going to do. Deputy Mulcahy was quite right—it would be almost better to say that the whole lot are appointed by the Government and removable at the Government's pleasure and let it be seen that that is so, instead of keeping it in this other way, by a letter quietly and secretly sent to the person who does not do what the Government wants. That is the situation.
That is not the situation.
What is the situation, if that is not it?
I have spent a good deal of time in trying to put the facts before the House and every time I do, it is a repetition. One gets sick of that sort of thing.
I do not know whether the Taoiseach has got sick of hearing the facts established. Is it or is it not a fact that the Attorney-General is removable at will by the Government? I suggest it is. I await a denial of that, but I do not think a denial can come. The Attorney-General is, therefore, under the full control of the Government in this matter. The board is to be appointed by the Government. They are going to be people whom the Government will hand-pick for their purpose. That is evident from the section. Even if one of those handpicked men decides to take a course that is not in accordance with the views of the Government, surely it is right to say that the creature of the Government, removable from office by them, is the person who will set in operation machinery to get a recalcitrant member removed? If there is any one of these statements I have made capable of any qualification or is wrong as I have stated it, I would like to hear what the qualification is or where I am wrong. It goes without denial.
It does not—it is denied on the face of it.
Where is it denied on the face of it? Section 5 (5) says:
If a committee, consisting of three persons nominated by the Chief Justice, is requested by the Attorney-General to inquire into, and report upon, the question whether it is desirable that a particular ordinary member of the board should cease to hold office—
(a) the committee shall comply with the request,
(b) if the committee by a majority reports that it is desirable that the said ordinary member should cease to hold office, the Government may by order remove the said ordinary member from office.
What is wrong with what I have said?
It is a misrepresentation.
What is misrepresentation.
I am not going to argue any further.
One can understand that reluctance.
I know a very good reason for not arguing.
It is quite obvious that this is obstruction. Why did the Opposition not put down an amendment, if they were serious about this?
Because the whole section is wrong.
The Taoiseach asked why we did not put down an amendment—to what?
If this was an objectionable method and there was a better method, why did not the Deputy set down an amendment?
The bell would ring and people who have not listened to the case made would come trooping in here, already prepared to vote, probably having been told to do so.
And to those who had made up their minds to vote for it, it would not matter what arguments were made against it.
At least, none of the people who would vote for our amendment has yet said he would be voting against his conscience, as some of the Taoiseach's followers said they did on recent occasions.
When did they say so?
Not on this Bill, anyway.
So they did say so on some Bill—but not on this?
What did Deputy McCarthy say?
Quite a number of Deputies, including Deputy McCarthy and Deputy Allen, said that their consciences were very definitely being harmed.
I do not see what a Deputy's conscience has to do with this.
What the Deputy has said is not so.
Order! We must proceed by orderly debate.
Deputy McCarthy said that his conscience was definitely wronged and harmed by having to go into the Lobby on a particular occasion.
He did not. Quote his words.
I will, if the Deputy thinks that I am misquoting. Do you deny that Deputy McCarthy, on a particular occasion, said that if he were to vote it would be against his conscience?
I do.
Order! What has Deputy McCarthy's statement to do with this?
Deputy Walsh apparently agrees that a Deputy did make that statement, notwithstanding the look that Deputy O Briain gives him.
I did not give any look.
One looking at the section might have said, before the discussion in any event, that there is the guardianship of the Chief Justice. Three people are to be nominated by the Chief Justice, but now it emerges that the Chief Justice has been first of all consulted.
There was a debate of five hours as to whether the Chief Justice should be chairman or not, and I think that is enough.
He has other duties as well as that of being chairman. He is given the specific duty here of nominating three people. I am speaking on that.
There is a decision of the House that he be chairman.
I am not speaking of the Chief Justice qua chairman but in a new capacity, the man who is going to be approached on request by the Attorney-General. The Attorney-General, I say, holds his office at the sweet will of the Government, and that Attorney-General, holding his office in that way, is going to request the Chief Justice to inquire into a particular matter. The Chief Justice, who has been paraded before the House in a certain way as chairman, swings around and has another function to discharge. He is the person who is to nominate three people. Is it likely that the Chief Justice who has so little care for the judicial independence of his colleagues —the judicial independence set out in the Constitution—is going to be very particular and very conscientious as to the people he will appoint in this matter, particularly as it has emerged from the debate, I understand, that the Chief Justice has been pretty well ordered in respect of the chairmanship?
That is not true.
We are not resuming the debate on the chairmanship.
I cannot segregate these things. If an individual who is Chief Justice is paraded in a particular way as accepting the office of chairman, I cannot think of him as being a different type of character when it comes to nominating three people to make an inquiry of this sort. We might as well have it open and frank and without any evasion that this committee is going to do what the Government want it to do. Whatever little cloak there may be for the public, the background is quite clear, and it is that the Government are going to control this committee. The committee will give these moneys, taken out of the jurisdiction of the courts, to such friends of the Government as the Government want the moneys given to.
Question put: "That Section 5 stand part of the Bill."
The Committee divided: Tá, 43; Níl, 30.
Tá.
- Aiken, Frank.
- Allen, Denis.
- Bartley, Gerald.
- Beegan, Patrick.
- Blaney, Neal.
- Brady, Brian.
- Brady, Seán.
- Breslin, Cormac.
- Burke, Patrick (County Dublin).
- Carter, Thomas.
- Colbert, Michael.
- Colley, Harry.
- Crowley, Honor Mary.
- Derrig, Thomas.
- De Valera, Eamon.
- De Valera, Vivion.
- Flynn, Stephen.
- Gorry, Patrick J.
- Harris, Thomas.
- Hilliard, Michael.
- Humphreys, Francis.
- Killilea, Mark.
- Kilroy, James.
- Lemass, Seán F.
- Little, Patrick J.
- Loughman, Frank.
- Lydon, Michael F.
- Moran, Michael.
- Moylan, Seán.
- O Briain, Donnchadh.
- O'Grady, Seán.
- O'Loghlen, Peter J.
- O'Reilly, Matthew.
- Rice, Bridget M.
- Ruttledge, Patrick J.
- Ryan, James.
- Sheridan, Michael.
- Skinner, Leo B.
- Smith, Patrick.
- Traynor, Oscar.
- Ua Donnchadha, Dómhnall.
- Walsh, Laurence.
- Walsh, Richard.
Níl.
- Anthony, Richard S.
- Coburn, James.
- Cogan, Patrick.
- Commons, Bernard.
- Coogan, Eamonn.
- Corish, Brendan.
- Cosgrave, Liam.
- Davin, William.
- Dillon, James M.
- Dockrell, Henry M.
- Donnellan, Michael.
- Doyle, Peadar S.
- Finucane, Patrick.
- Giles, Patrick.
- Heskin, Denis.
- Hughes, James.
- Keating, John.
- Keyes, Michael.
- McFadden, Michael Og.
- McGilligan, Patrick.
- McMenamin, Daniel.
- Morrissey, Daniel.
- Mulcahy, Richard.
- Murphy, Timothy J.
- O'Higgins, Thomas F.
- O'Leary, John.
- O'Reilly, Patrick.
- Redmond, Bridget M.
- Roddy, Martin.
- Rogers, Patrick J.
Tellers:—Tá, Deputies Killilea and Ó Briain; Níl, Deputies Doyle and McMenamin.
Question declared carried.
SECTION 6.
Question proposed: "That Section 6 stand part of the Bill."
On Section 6, we again see the ubiquitous chairman. If the Chief Justice remains to be chairman of the board, he shall, if present, be chairman of the meeting. If he is not present, the chairmanship is taken by a member of the board. Sub-paragraph (2) give the chairman a second or casting vote and under sub-paragraph (3) the board may act notwithstanding one or more vacancies amongst its members as long as there is a quorum of four. Then, under sub-paragraph (5), the board is to regulate the procedure and business of the board.
Regulation of business is all right but they are to regulate procedure. What they are to do is set out in Section 12, 13 and 14. It means that they are going to distribute a sum of money that is somewhere in the region of £24,000 and in so doing they are to regulate their own procedure. Already, by the sections that the Dáil has passed, they are definitely a handpicked and well-picked sort of jury and they are to do anything they like, on any evidence they like. They are to regulate their own procedure. There need be no evidence remaining for anybody to question. There need be nothing that anybody could question or raise any comment about. They are to regulate their own procedure, the method by which they will distribute the money, the evidence upon which they will do it, the records they will ask for in relation to the various things that are set out in Section 13. It is a hand-picked Board not merely as far as its membership is concerned but, apparently, lest they might leave any record on which people could afterwards judge them for their actions, they are given here the completest power simply to decide at their own sweet will. There is always a suspicion that this is only a way of distributing £24,000 amongst needy followers of the present Government. It is clear from this section that that is what is aimed at.
What practical alternative does the Deputy suggest?
The same as there is in the Military Service Pensions Act, which talks about records being brought forward and the records that will be put before the board and the statements that will be made on them. That is one example, from the rather inefficient legislation which the present Government have introduced.
That is not a practical suggestion. It is not a sensible suggestion.
It was at least so sensible that the present Government included it in an Act.
Yes, but a different Act.
An Act to distribute money by the State for services rendered—exactly the same thing as is here.
The circumstances are entirely different.
I do not say that because the present Government passed it it was sensible, but at least it is an example of what they thought at one time was sensible in an exactly analogous situation.
Oh, no.
What is the difference?
The Military Service Pensions Board had entirely different functions to perform.
It had to distribute money on the grounds of certain terms of reference given to it with regard to service. This is to distribute money on the grounds of the terms of reference given in Section 13. The Military Service Pensions Act set out the way it was to be done. It did not set out procedure to the final point but it certainly prevented the people from just distributing the money to their friends. This does not prevent that. In fact, it is obviously aimed to allow that.
Will it be distributed the way in which the American money that was paid into the loans was distributed?
That has nothing to do with it.
It may have a lot to do with it, Sir. I am suggesting that this money can be used, or misused, in the same way as the other moneys were misused to bolster up the Irish Press and to put it on its feet.
That is a completely groundless suggestion.
We are not going to debate it now.
Surely I am entitled to say——
You are not entitled to say it.
——that in my opinion these moneys can be used or misused in the same way as other moneys have been misused.
They cannot give £24,000 to the Irish Press.
Why not?
To the people who are behind it.
They did a more difficult thing than that.
There was no money invested in the Irish Press except by the voluntary wish of the subscribers.
Voluntary wish— that is what you would not face. There was no voluntary wish expressed.
What was done with those moneys does not arise.
Except that the analogy of loot has been introduced. This is a loot Bill, the same as the other one.
And to suggest that the people who were capable of doing that in relation to any other measure or other moneys are quite capable of doing it under this measure.
It is accepted that this is a loot section——
It is not. That is a suggestion which is worthy of the Deputy and of his colleague, Deputy Morrissey.
——and that the funds will go to the needy followers of the present Government.
Question put and agreed to.
SECTION 7.
Question proposed: "That Section 7 stand part of the Bill".
Is it the position that before we have disposed of Section 6 we find ourselves at Section 7?
I put Section 6 once. I put Section 7 twice, while the Deputies were talking. I am putting Section 7 again.
I did not hear Section 6 being called.
Section 6 was accepted.
Apparently it was not accepted by the Minister as a loot section. I do not accept it. If Section 6 has been passed it may be. I am protesting against it as a section.
Does Section 7 stand?
No.
Have you anything to say against it?
Have you anything to say for it?
It stands on its merits.
Then it is dead already.
Question put.
The Committee divided: Tá, 43; Níl, 26.
Tá.
- Aiken, Frank.
- Allen, Denis.
- Bartley, Gerald.
- Beegan, Patrick.
- Blaney, Neal.
- Bourke, Dan.
- Brady, Brian.
- Brady, Seán.
- Breslin, Cormac.
- Burke, Patrick (County Dublin).
- Carter, Thomas.
- Colbert, Michael.
- Colley, Harry.
- Crowley. Honor Mary.
- Derrig, Thomas.
- De Valera. Vivion.
- Flynn, Stephen.
- Gorry, Patrick J.
- Harris, Thomas.
- Hilliard. Michael.
- Humphreys, Francis.
- Killilea, Mark.
- Kilroy, James.
- Lemass, Seán F.
- Little, Patrick J.
- Loughman, Frank.
- Lydon, Michael F.
- Moran, Michael.
- Moylan, Seán.
- O Briain, Donnchadh.
- O'Grady, Seán.
- O'Loghlen, Peter J.
- O'Reilly, Matthew.
- Rice, Bridget M.
- Ruttledge, Patrick J.
- Ryan, James.
- Sheridan, Michael.
- Skinner, Leo B.
- Smith, Patrick.
- Traynor, Oscar.
- Ua Donnchadha, Dómhnall.
- Walsh, Laurence.
- Walsh, Richard.
Níl.
- Anthony, Richard S.
- Coburn, James.
- Cogan, Patrick.
- Coogan, Eamonn.
- Donnellan, Michael.
- Doyle, Peadar S.
- Giles, Patrick.
- Hughes, James.
- Keating, John.
- Keyes, Michael.
- McFadden, Michael Og.
- McGilligan, Patrick.
- McMenamin, Daniel.
- Corish, Brendan.
- Cosgrave, Liam.
- Davin, William.
- Dillon, James M.
- Morrissey, Daniel.
- Mulcahy. Richard.
- Murphy, Timothy J.
- O'Higgins, Thomas F.
- O'Leary, John.
- O'Reilly, Patrick.
- Redmond, Bridget M.
- Roddy, Martin.
- Rogers, Patrick J.
Tellers:—Tá: Deputies Ó Briain and Killilea; Níl: Deputies P.S. Doyle and McMenamin.
Question declared carried.
SECTION 8.
Question proposed: "That Section 8 stand part of the Bill."
On this section, we have to complain of the same set-up that there is with regard to the chairman and the members of the board. The board is to be allowed to appoint such and so many officers as they may think proper. There is no limitation whatever as to the numbers. There are no terms of reference given to the board with regard to the qualifications of the people they are to appoint, no statement as to whether they are to be civil servants on loan or anything like that. No statement has been made to this House from which we can judge how long these people will be there, what their duties are likely to be, and how long this will take them. The board is given power to remove any officer for any reason it likes, without in fact giving a reason. The board pays them whatever it likes. The board may be composed of the needy people who have to be provided for who, of course, may not be the people referred to in this Bill, but political partisans who want a bit of a lift. They can be provided for, and then a few extra henchmen can be brought in as servants and given whatever salaries the board likes for so long as the board likes. The board will be constituted as to the main part of the membership by Government nominees and as to the rest by the Chief Justice. Was there ever such a racket as this?
If there is a board, the board must have officers. If the Deputy gives competent legal advice, he knows that they could not appoint officers unless that is provided for. Once we have approved of the principle of this Bill we have approved of this section also.
For the board to appoint whomsoever it likes?
Whoever is necessary to discharge the duties.
Is that here?
It is assumed that the board will be a board of intelligent people.
Is that to be assumed from what we have here?
Yes.
I describe it as a racket.
Are the officers to be appointed by the board to have a competent knowledge of Irish?
It is probable that they will have as competent a knowledge as the Deputy.
The Deputy is not likely to be appointed an officer of the board. The Deputy's very little knowledge of Irish might be as good as the Minister's. The Deputy is at least as keen about Irish as the Minister.
If we are to have contests in the Dáil, perhaps a test of that kind will be as good as the tests which have preceded it.
Or as good as the Minister in winding up yesterday the debate on his Estimate.
Let us not go back to yesterday evening's debate.
We will get back to it before all the Estimates are finished. I want to know is it to be obligatory that the officers to be appointed by this board shall have a competent knowledge of Irish—yes or no?
I should say that it is desirable. It is not proposed to make it a statutory provision.
In other words, it would not suit to make it a statutory provision, because, I presume, the people who are in mind have not got a competent knowledge of Irish.
I do not know who they are.
That is only insisted upon when they have no other qualification.
Is the Deputy competent?
He is competent so far as common sense is concerned.
That is questionable.
The best evidence of that is that for 20 years I have been in opposition to people on the opposite side. I am saying that a competent knowledge of Irish, apparently, is only insisted upon or put into a statute when the person whom the Government have in mind to appoint to the office has no other qualification.
Will we insist that they should call themselves "Seán" or something like that, or that they should write their names in Irish? Some people at least have that knowledge.
I do not think it is desirable to make that statutory.
I think it would not be. Some henchmen may not be able to do it. Is there an Irish word for racket?
Question put and agreed to.
Section 9 put and agreed to.
SECTION 10.
There is an amendment in the name of the Taoiseach. I move:
In sub-section (3), paragraph (a), to delete sub-paragraph (i) and substitute the following two sub-paragraphs:—
(i) Charles Stewart Wyse Power, party thereto, his costs of and incident to the pending action, as between solicitor and client, when taxed and ascertained, and all other costs properly incurred by him as a trustee and incident to the court funds and the moneys on deposit in the bank, when taxed and ascertained,
(ii) the said Charles Stewart Wyse Power, as personal representative of the late Jennie Wyse Power, all costs properly incurred by her as a trustee and incident to the court funds and the moneys on deposit in the bank when taxed and ascertained.
It is merely a drafting amendment.
What is it for?
It is primarily for drafting purposes.
It does not seem to me to be a drafting amendment.
It is just an expansion of what was in the Bill originally.
Tell us what it is about. We ought to keep up even the appearance of a deliberative Assembly. This amendment is obviously not a drafting amendment.
It seems to be obviously a drafting amendment. The purpose it to delete a provision in the Bill as originally framed and insert a corresponding paragraph of a slightly wider significance.
"A slightly wider significance"—and that is described as a drafting amendment?
The purpose is to enable the board, out of the funds, to recover to the individual named not merely the costs of and incident to the pending action, but also all other costs properly incurred by him as a trustee and incident to the court funds and the moneys on deposit in the bank. If the costs incurred by the trustee are to be recovered, it is clearly necessary to make that wider provision. The original section was defective in that regard as it left out whether the board could recover to the trustee the costs properly incurred as a trustee and incident to the court funds and the moneys on deposit.
It is a very important amendment, yet the Minister tried to make out it was insignificant.
Is that all that is in it?
That is all.
You can be sure the Minister is not hiding anything.
There is a statement that goes wider than "trustee".
It is to enable the costs incurred by the late trustee as a trustee to be paid off.
That is a somewhat different matter.
I hope we will not get any more of this type of drafting amendment.
Amendment agreed to.
Question proposed: "That Section 10, as amended, stand part of the Bill."
This is a pivotal section. This is a section which means that an action now in court is to be taken out of court. It is to be taken out because we have been told, first, that the court might give an unreal decision; secondly, that the court is apt to give decisions based upon narrow legal interpretation, and, thirdly, that the court could not get the facts properly before it, whereas the Dáil can. On these three main grounds this section stands. I do not know what is the narrow legal interpretation that is feared, and the House has been given no enlightenment on that. I do not know what is an unreal decision, except it be a decision that would not appeal to the present Government. Then we are told that this House is competent to have the facts brought before it and to pass judgment upon them, whereas the court is not. This House has not had any facts put before it to come to any conclusion. The proposal is that the action ought to be taken out of the court and transferred here for decision.
We are asked to make a decision. On Second Reading the House has already made a decision. Looking back on the debate, all I can find said on the merits of the case is the statement made by the Taoiseach, ex parte, that the present plaintiffs are an insignificant group, that they could not possibly establish their affiliation with the group for whom the funds were first raised, and that they have no case. They are an insignificant body, to start off with; they have certainly no way of establishing their affiliation with the body for whom the moneys were held in trust, and they have no case. I do not think any judge would come to a conclusion on a statement of that type, or would pass judgment on it. If the courts are being discredited because they will not take an easy and quick decision on that sort of a statement of defence, then that recorded in the Dáil debates will redound to the credit of the courts and will not redound to the credit of this Assembly.
I asked the Taoiseach to tell me the distinction between these funds and any other funds. I can conceive many answers, but the only one I got was that there are quite a number of other funds where the moneys had been wasted by actions in the court. I do not know whether that was intended to forecast that on many future occasions we will have similar types of legislation passed like this, brought in to save trusts being despoiled by those who want to take them to court. It is the only line towards which the Taoiseach's argument pointed. The worst of that type of argument is that the more exaggerated it is, the less case can be made for removing this from an adjudication by the court. If it is quite clear that the plaintiffs are insignificant, with no possible affiliation as between themselves and the people by whom the trust was accumulated, and if they have no merits, it is very hard to think of a judge coming to an unreal decision with such clearly established facts as those.
Then, when the argument developed, we were told that not merely might a court decide in favour of these plaintiffs, but it might even decide that they had such merits that they ought to get their costs out of the funds. So, in relation to people who have so little merits that on a real decision they ought to get no costs we propose to give them their costs. The argument about depleting the funds then falls to the ground.
The other point, urged in a subsidiary way, covered what is called the delay and, on the question of delay, the Taoiseach made the point that this action was started at a particular time and there was no activity following on that. I pointed out there was a procedure whereby a defendant, after a certain period has elapsed, can give notice of trial and can bring it to a head. The answer I got to that from the Taoiseach was that there was no procedure and it was fortified by this not merely insulting but meant to be insulting statement, that people who are better lawyers than ever I could be informed him that there was no procedure whereby a defendant or plaintiff lying idle in a case could bring the matter to court. There is such a procedure.
I doubt very much if I did say that—unless there was a complete misunderstanding of the point made.
There was a misunderstanding of the situation, but the statement was made.
I would like to see it.
Was not the argument put forward that the plaintiffs, having inaugurated this action, could not be got into court and my counter to that was that the defendants had it in their power to bring it to court? A denial came and there was a query as to whether that could be done. The very rule of procedure on which the defendants have operated contains a statement setting out what I speak of.
Will the Deputy refer me to that?
It was referred to on the Second Reading. Of course it was said. The rule upon which the defendants have so far acted contains a statement about the procedure. The rule is that after a certain period has elapsed, and issues have been joined, if the plaintiff does not give notice of action the defendant may do either of two things; one is that he may go into court to have the action dismissed for want of prosecution, and the very rule that says that goes on to say that they may serve notice of trial themselves. I suggested that and it was denied. If it was not denied why did not the defendants do that?
They did.
They did not. They took the other action; they moved to have the matter set aside for want of prosecution but they could have set the matter down for trial.
The point is being made that the defendants could not have applied to have it set down for trial. I answer that they could. Is it agreed that the defendants could have served notice of trial in this matter? I assert very precisely and very definitely that they could, that they could have brought this matter to a head, always of course subject to this: that the plaintiffs might have made the plea, in excuse of their delay, that the matter was complicated and required a great deal of documentation and that it was not ready. If the court believed that plea, the court would not order the action to be brought to trial there and then. That could only be done if the court were satisfied, and had established to it on the grounds of argument, that there was good reason for the delay. I think there can be no doubt that one of the arguments upon which the Taoiseach relied was that this action was long-standing, that the plaintiffs had not moved on it and that there was no way open to the defendants of bringing the plaintiffs to court. I say that is a wrong statement as made by the Taoiseach.
And the Taoiseach is very doubtful if he made the statement in that form.
I say that it is a wrong statement. But let us assume that it was not said, that there was no such assumption made by the Taoiseach. It is then agreed that the defendants have it in their power to bring this matter to a head. Why did they not bring it to a head? Why did they not serve notice of trial? Why did they not force the pace? Why did they not, feeling assured as they apparently did that this was only a matter of delay and that the real action was not going to be proceeded with, take the step open to them under the rules, of getting the matter set down for trial? There are two answers. One is that they did not want themselves to have it brought to trial. The second is that they did not believe that the delay was anything extraordinary, having regard to the documentation that had to take place. In any event, they could have forced the issue and asked the court to order the matter to be put down for trial.
There is another matter on which the Taoiseach definitely misled the House on the question of delay. This action was listed for trial. This action was listed for trial twice, and listed by the plaintiffs. Of course the matter had to be presented here as if the action were unreal, that the plaintiffs never intended to go ahead with it, that they merely put in their summons and the statement of claim and allowed the matter to lie there. On these various grounds I say that the Dáil has not been treated fairly. I say that when the courts come hereafter to deal with these cases, it will be shown that what the Taoiseach was afraid of, was not that the funds would be frittered away but that he and many members of his Government would be paraded as witnesses. That is what the Taoiseach wants to avoid and not the squandering of the funds.
I have already alluded to the fact that certain letters passed between the plaintiff organisation and the newspapers. Might I refer the Taoiseach to column 2539 of the Official Report of the 20th March last? As reported there, the Taoiseach said: "I do not believe that the people who are looking for these funds have any hope whatever—". On that I interrupted: "That can be tested in the right way." The Taoiseach went on: "It cannot be tested; it has taken five years to bring the matter to trial and it has not been brought to trial yet." I responded: "The defendants can set it down for trial." To which the Taoiseach rejoined: "The defendants cannot." I then asked him: "Have you been advised on that?" And the Taoiseach's answer was: "I know this, that the people who are in charge of this matter know the law as well as Deputy McGilligan." I was not far wrong in my recollection of what happened. The Taoiseach did deny, and certainly got it presumed by the Dáil that he had been advised on that by people who were well versed in legal matters, that the defendants could have set it down for trial. If the Taoiseach would like to have a copy of the report, we have got it.
It is easy to see that the Deputy is omitting something. The Deputy is deliberately leaving out certain matters.
What am I deliberately leaving out?
The Deputy is speaking at the moment of another motion.
What am I omitting? I was told that I was deliberately leaving out something. What is it?
Perhaps I should not say "deliberately".
You did say it.
I am sorry. I could not say deliberately because it is a question of what is in the Deputy's mind. What I say is that, when the passage quoted by the Deputy is read in the context of my speech as a whole, it will be clear that I was referring to the position as it was at that moment. In fact, the defendants had served a notice of motion that the action be dismissed for want of prosecution.
It is no wonder that people are looking forward with joy to having the Taoiseach sworn as to the position in 1924-26, when he can be so evasive on a matter in which he is caught out now.
I am not caught out.
Caught out, indeed.
The Deputy has not given the facts.
I am giving the facts. The Taoiseach can speak later if he wishes.
All right, I shall speak.
In a serpentine way. Why the Taoiseach should parade himself as knowing anything about legal procedure except that he must parade himself as knowing everything, I do not know. However, it is quite clear what the Taoiseach's attitude is. It is brought out in one significant matter. The plaintiff organisation sent a letter to the newspapers in connection with this whole business. The Irish Independent adopted the attitude that as the matter was sub judice it could not be referred to, but the Irish Press had no such scruples. They published the letter but cut one sentence out of it. It is a significant sentence, the sentence in the letter in which they said: “The evidence of Mr. de Valera would be very important. He must be aware that we propose to subpoena him as a witness in the action, as he was president of Sinn Féin from 1917 to 1926, when he resigned to found Fianna Fáil.” That is the sentence that was cut out of the letter. The Irish Press purported to publish the letter from Sinn Féin with that excision. They know well how wounding that would be to the Taoiseach, because is was a giving away of the whole business. They knew that a lot of their readers did not know that, but perhaps some of the witnesses knew it and that is what has to be evaded.
I am not speaking for the plaintiffs in this; I do not know how strong their case is, I do not know whether they are an insignificant body, that the Taoiseach thinks they are, or a really important body. I do not think that insignificance enters into it. I do not know whether they can claim an affiliation with the old Sinn Féin organisation or whether the court would say clearly on the facts that they cannot, but I do know that the defence plea put on the files against them is that this money was lodged in court in 1924 and that, prior to that date, the Sinn Féin organisation was defunct and that, therefore, nobody can claim to be the inheritors of it now. That is stated by the Attorney-General of the Taoiseach.
The Taoiseach called a meeting of that organisation, as president of it, in the early part of the year 1926 and tried to get a certain resolution carried. He was beaten and left as a minority, leaving the majority behind him. It will take a great deal of arrogance to say that the court will decide that, just because the Taoiseach left the organisation, the organisation stopped at that point, but the legal adviser of the Taoiseach has put boldly on the files that that organisation was dead two years before. That is why Sinn Féin, the present group, rightly claim that the Taoiseach would be an important witness, because he paraded before the country as president of Sinn Féin up to the year 1926 and left, not carrying the majority of that body with him. How it lies in his mouth to say that if he were brought in by the Attorney-General in support of the contention on the file that that organisation was defunct prior to 1924, or at least by 1924, he stands over that, I cannot understand, and, as I said before, he would be in an unhappy position in that respect.
Not a bit.
If the Taoiseach thinks he would be in a happy position, it is strange that he would not give himself the few bits of happiness he has had in recent years by going down. I have suggested before, and I suggest again, that there is no necessity for this fund to lose money. If the courts would only take the Gaiety Theatre for the action and charge admission fees, they would make twice as much as is in the fund. Think of the number of people in the country who would like to hear the Taoiseach on his oath telling what happened in the background of Sinn Féin between 1924 and 1926.
It is all known to the public long ago.
The difference is this that we would be now presented to the public in a court of law, after witnesses had been sworn and when their evidence could be tested by cross-examination and put up against the evidence of other witnesses who might be brought into the case. In a court, one does not get just the onesided view across that you may get across through a propagandist organ. There is no doubt that the whole point in this is not any matter of conscience or scruple about the money which is going to be lost, or anything like that, but the question of evading service of a writ as a witness.
I have here two documents published as a White Paper long ago—two documents which were found in a raid on premises in 27 Dawson Street, Dublin. I am sure the Taoiseach knows the documents.
How do they come in on this section?
They have to do with Sinn Féin. This was an organisation which was parading itself as a little bit of a hybrid concern. It was partly Sinn Féin, partly the successors of the Second Dáil and partly a new group, a conception of the Taoiseach's, Comhairle na dTeachtaí. It was going to be the last remnants or the decaying remnants of the Second Dáil, with such people as might have come in by election from time to time, elections which the Second Dáil did not recognise, but at which certain people stood for election, and, as newcomers coming into their ranks, they avidly welcomed them.
One of the things I looked up, in case the Tánaiste was left here to argue this matter, had reference to a matter questioned at this meeting which was as late as 18th—19th December, 1926. Mr. Seán Lemass said that he held a position on the Executive as head of the Department of Defence. "In that position," he said, "I sanctioned certain military acts, for example, the raid on Mountjoy in November last." That was November, 1926, and he as Minister for Defence, if you please, in a defunct organisation was sanctioning a raid in which lives might have been lost, and he claimed later the power of life and death. "I think," he says, "it is a most astounding suggestion that my action needs any ratification from this body. I think that we should resent that very much; these acts were just as valid then as they are now; I, as one of this body, in giving my saction to this act gave it all the justification it needed."
There was then an attempt to pour oil on these troubled waters by the president at the time, the president of the association, who was not the Taoiseach, and Mr. Lemass comes in again to ask: "Is it suggested that these acts were invalid at the time?" There then follows an explanation from the Taoiseach, and, if anybody wants an exercise in confused thought, I suggest that they read the next three sentences. I will not attempt to read them here. Later, Mr. Lemass comes in again to ask: "When you said that these acts require validation, does that mean that any acts I did as Minister for Defence were not valid?" Would it not be interesting to hear Mr. Seán Lemass paraded as a witness in this case and asked whether he sanctioned a raid, an armed raid, on Mountjoy in November, 1926, and asked by what authority he did it and then presented with that document which is a record from the files which were caught and having pointed out to him that he there said he required no validation for his acts, that he was Minister for Defence in a particular organisation and then being reminded that the Attorney-General in this case had put on the files of the courts the defence that the organisation was defunct from at least 1924.
That is only one of them. There are many gems in this. I thought the Tánaiste was going to remain for this debate and I picked that one out for his enjoyment, but there are many other gems from the Taoiseach himself in this document.
Is that document not in the Library?
I am not quite sure. If there is any sort of committee of expurgation of Fianna Fáil, it will have cleared that out of the Library. It is highly dangerous and I think a tender mind like that of Deputy Allen should be protected from such literature. There ought to be a censorship of that kind of literature—it is nearly evil literature.
What is the official title of the document?
"Two documents, `A' and `B', found by the police on the 10th April, 1928, during the course of a search of the premises, 27 Dawson Street, Dublin." It is a Parliamentary White Paper published under the number P. No. 202 of the year 1930.
Are you sure it is not two documents, document No. 1 and document No. 2?
I think there was a certain amount of delicacy about the naming of the document.
Its publication did not keep you in power, either.
I can tell you one thing it has done—it has kept certain people out of court.
We know why it was published, too.
If the Deputy knows so much about it, he will perhaps say why they are called documents "A" and "B" instead of documents No. 1 and No. 2. There is the record. There is a heap of it—the document runs to nearly 90 pages and is full of that sort of ráméis, complete ráméis, but that was the ráméis that was going down from platforms. I am sure Deputy Allen talked about his Minister for Defence and his raid in Mountjoy in 1926, and would have backed up what his Minister did, but how would he like now to be put on his oath in a court and asked to say that that organisation was defunct before 1924?
That is not the organisation, if I know anything about it.
Let us not quibble about that. Is there no affiliation between the organisations?
That is a very different matter.
That I would love to hear explained on oath also. Leaving that document aside, did Sinn Féin exist as an organisation as late as 1926? Was the organisation in existence at the time when the Taoiseach proposed a resolution before that organisation and was defeated by a counter-resolution proposed by the late Father O'Flanagan? Was the Taoiseach president of it? Did he leave as a defeated minority and is it possible for the people who now put this forward as plaintiffs to say that they have the right of succession from the group the Taoiseach left? I am not sure that my dates are right but somebody authorised the man who is the present Minister for Justice to go to Moscow on one occasion to look for help. I think it was Sinn Féin. I wonder if the Taoiseach would correct me in my dates. On what date did that happen? Was it near 1924? I think that it was. So that the defunct organisation sent a member of that organisation to Moscow to look for aid from the people at whom we are now so horrified. To look for aid for what? To beat down the legitimate Government in this country. At the moment, President Truman is getting America to lend money to Greece because there are certain guerillas in Greece who are being financed by Moscow to beat the legitimate Government of Greece. President Truman is throwing the United States of America into the scales against that. What about producing the Minister for Justice before the courts and having him sworn to say by what authority he tried to get Russian aid—a thing which President Truman is objecting to in respect of another Government— against the legitimate Government of this country?
That is an old chestnut.
That would be an interesting topic to have discussed. It is quite clear that the Taoiseach cannot have these matters discussed. It is all very well to get people who are appreciative of his efforts to write books, pamphlets and newspaper articles about his movements and his activities. The real test comes when a man has to stand on his own feet and submit himself to examination and cross-examination about that sort of thing.
The Deputy was under cross-examination on one occasion and was found out.
I do not remember that occasion.
In court.
When?
It is not so long ago at all.
Perhaps Deputy Allen would be more precise. A Deputy, when he has said that sort of thing, should not fade into silence.
I did not fade into silence. The Deputy well remembers it.
I want to be reminded.
Before a tribunal set up by this House.
I want to be reminded of the occasion.
It does not come under this Bill.
Neither does Russia come under the Bill.
It does. That is where Deputy Moran's immaturity saves him. He was, probably, a babe in arms when these things were being discussed. I am not trying to make a bogey out of Russia but it would be interesting, under present circumstances, to get the Minister for Justice to explain to the population who sent him to Russia and for what purpose.
Get a new chestnut. The old one is worn out.
The Deputy, apparently, did not hear of that one because he put in a query regarding the document.
I told you where it was.
Russia is not in that document.
It is not in this Bill.
It is. That is what Deputy Moran forgets. This Bill goes back not merely to 1926 but to 1924. This Bill carries part of the pleadings with it. In order to set aside a court action, one of the pleas is that a certain organisation lapsed in 1924. That is a matter to be inquired into. In these circumstances, people would be asked to explain their authority to do certain acts and how they were validated and the only way they could validate them would be by saying that the organisation which was the heir of the Sinn Féin organisation validated them up to 1926.
Sinn Féin did not validate anything.
In 1926, when the Taoiseach left defeated, a group stayed on behind. These are things that would have to be examined into.
They are a long way from Moscow.
Deputy Moran is going to vote for this section quite soon. This section provides that all proceedings are to be stayed. Will he, as one Deputy, tell me why these proceedings should be stayed?
I shall tell the Deputy in due course.
So far, I put it to the Dáil that the only argument is what the Taoiseach said. Nobody else has submitted any argument. The Taoiseach's argument is that these people are insignificant, that they have no merits and that their claim would not be substantiated before any court except there was an unreal verdict. Is that Deputy Moran's idea of the courts—that people who are insignificant and without merits might get a decision from them? The Taoiseach told us on another occasion that the courts are not capable of understanding the facts in the background of this action but that this House is. Let us take our competence to understand the facts for granted. Have we been given the facts on which to operate our minds? Has Deputy Moran been given the facts? Certainly, not in this House. If Deputy Moran thinks there is a case to be made for this section, I should like him to make it and tell us where the weaknesses are in the plaintiffs' action and where the weakness is in the courts which does not permit of a weak action going before them lest that weak action should not suffer the fate of all weak actions which go before the court.
We are trying to take the action out of the court. Having done that, let me remind Deputies of the remainder of the story. We are going to pay the costs incurred so far. We are told that £8,000 has already been incurred in costs. I have met no person yet who read that statement by the Taoiseach who gave it credence. Anybody I have met has gasped his astonishment at the figure of £8,000 presented by the Taoiseach as the amount of costs already incurred. If the Taoiseach gives us that figure again, as I suppose he will, I want him to add to it— to tell us who prepared that figure for him. Was it a costs drawer? Was it a civil servant thinking of a number and multiplying it? Was it a taxing master?
Whichever of these three brought that figure to the Taoiseach's mind, will he say—I do not want the details —what evidence anybody brought before him to enable him to say that the costs so far incurred were in the region of £8,000? That is the sum we are not going to save in this action. That is to be paid in any event. It will be interesting afterwards, if this Bill be passed and if we can get the information, to learn what sum was, in fact, paid. I believe it will be found to be nearer half the sum the Taoiseach mentioned.
Finally, I ask consideration of this point. It is a point on which I was contradicted previously but I am not going to bother about that. If these plaintiffs go into court with as bad a case as the Taoiseach says they have, they will not get any costs. I do not know what fraction of that £8,000 is supposed to represent the costs incurred by them. That sum can be saved if the Taoiseach's case is as strong as he makes it out to be. If the plaintiffs are insignificant as a group, have no merits and cannot establish their right to this affiliation, they will lose their action and their costs. It is clear that costs can be given against them but we need not take that into account because they, probably, could not pay. But they need not be fed out of this fund and should not be if their case is as bad as the Taoiseach says.
The question is that Section 10, as amended, stand part of the Bill.
I thought that Deputy Moran was going to give us a statement on the case.
I do not know what the main basis of the attack by Deputy McGilligan is. If you take sub-section (1) of Section 10, that this House should interfere with this particular action, one would think that it was the first time that this House has interfered in this particular way. We had it quite recently in connection with a number of claims being brought under the Military Service Pensions Acts and this House interfered. It is not correct to suggest that these funds are on the same basis as an ordinary trust fund, and no one knows that better than Deputy McGilligan. These funds are, from their very nature and for the purpose for which they were subscribed, more or less a national type of fund. There was an action pending, we are told, for a period of approximately five years. No one knows better than Deputy McGilligan that the plaintiffs would have gone ahead long before the five years expired if they thought they had a possibility of succeeding.
The defendants could have made them proceed.
No one knows better than Deputy McGilligan that the best sign of a bad case is for the plaintiff to refuse to proceed. We have the chancy litigant in the country who launches an action, makes a statement of claim and when the defence is being served, he sits back in the hope that he will get something from the other side.
He can be made bring it to trial.
He has a lever. He has got his writ issued and has incurred a certain amount of costs. He knows he is going to bring the matter to an ultimate conclusion and is going to cost the other side a certain amount of money. That is his lever and his bargaining power. Having got that far, and having put the other side to the cost of going that far and to further cost if they are going to bring the matter to a conclusion, he knows before the trial ever comes off that he is going to stick them for that. He is still in a bargaining position and Deputy McGilligan knows that quite well. I am sure that never in the Deputy's experience has he known of a case in which the plaintiffs have sat back for a period of over five years and refused to do one thing or the other.
I know that, because the defendants would bring them to trial.
As the Deputy has stated, they can move to have the action dismissed for want of prosecution.
They can set it down for hearing.
The Deputy wants to have it both ways. He knows quite well that it is the choice of the defendants to move under whichever procedure they think seems fit. The Deputy's complaint seems to be that the defence in this particular case did not move as the Deputy might direct them for his own particular ends. It was solely for the defendants to say what particular line of country they would take, as the Deputy well knows. They followed the procedure laid down by our legal rules and the Deputy's complaint is that they did not take a particular line that he would suggest and that would suit his argument here now.
That is not my complaint.
What are the realities? You have this action dragging on all these years and a very substantial amount of costs incurred that are to come out of the fund. The plaintiffs have the bargaining power that they are going to drag on for another few years, possibly ten years, and we will ultimately come to the position when there would be nothing in the fund. It would be completely exhausted. The Deputy seems to be perturbed that this matter has been dealt with by the House. This House is the proper body to deal with this particular type of matter, as there are some people who have inherited difficulties in connection with the matter and unless this Bill was introduced there would be no way out for them.
The suggestion was made in the House earlier by Deputy Dillon that the Chief Justice was being used as a tool by the Government. I speak subject to correction. It was suggested long before this writ ever was issued and long before this squabble came about in the courts, that this House should deal with the matter; and at the time that suggestion was made, the present Chief Justice was not sitting as Chief Justice. His predecessor was. I do not know if it would be suggested now by Deputy Dillon that the former Chief Justice was being used as a tool for this particular purpose.
Is the Deputy saying that the former Chief Justice was approached in this matter? If so, I will deny it.
Please do not interrupt the Deputy.
That Chief Justice was not approached beforehand about this.
I am suggesting that, before ever a writ was issued in this case, when some people had practical and legal responsibility to deal with these funds, the suggestion was made that the funds were going to be dealt with in the way the Deputy suggested they should be dealt with and the suggestion was then made——
To the Chief Justice?
The Deputy will please allow me to continue.
Even questions, no matter how put, can be very disorderly.
I am asserting that the suggestion was then made that a scheme on the lines embodied in this Bill should be brought in and that the then Chief Justice would have the powers that we give him in this Bill.
It is a scandalous statement.
I listened with amazement to the suggestion that the Chief Justice was being made a tool of by this particular Party. If any other individual had been suggested to carry out the functions envisaged in this Bill for the chairman of the board, the very first people creating a further smoke-screen about the infringement of the rights of democracy and interference with the courts and Fianna Fáil trickery would be Deputy McGilligan and Deputy Dillon, just as they tried to attack us to-day on the grounds when we appointed the one individual who could be suggested as impartial, the Chief Justice, to carry out these functions. The fund is there, though a certain amount of it has gone. The principles in this Bill for the administration of the fund would appeal to most thinking Deputies as the most expeditious way of dealing with the matter. After these people sitting down for all these years and refusing to go any further and still squandering more and more of this fund, if they are allowed to continue, whatever is left would be of very little use, judging by the figures that have been given and certainly would be insufficient to form a reasonable nucleus for the purpose we set out to achieve under this Bill.
Other criticisms have been offered of this measure. Dealing with a difficult matter like this and taking into consideration the surroundings and the whole picture from the time it emerged in the courts to the present day, the duty certainly devolved on someone to do something about it. The only people in a position to do anything about it are the members of this House. On the principles set out in the Bill, what is suggested by the Government to be done in this matter appeals to me from a common-sense point of view. The machinery that it is proposed to set up is the proper machinery for this House to set up to administer what is left of this fund. I think that if Deputy McGilligan and his colleagues had their way, and if this matter were allowed to drag on for a further period of years, we would have no fund and nothing to discuss here. There would be no necessity for the introduction of this Bill because the Deputy and his colleagues would have collected whatever was in the fund by trying to continue the fight between the different sides endeavouring to collect it.
There is only one point that I want to emphasise. I did not belong to Sinn Féin and I am not interested in the disposal of this fund. To my mind, however, there is an important fundamental point underlying the Bill, namely, interference with the courts. To my mind that has been overlaid by a certain amount of local colour and local enthusiasm by people who think of the justice of their contentions and of the injustice of other people's contentions. The point that I want to emphasise is that in this matter the functions of the courts are being set aside. How many actions are proceeding in the courts at the present time in regard to which a lot of people might not with justification intervene and say: "Look here, you two people are spending your money very foolishly and this matter ought to be decided in quite another way"? I would like to make this appeal to the Taoiseach, that this is a very small step but that a very big principle is involved. Remember, every movement had its beginning.
The Taoiseach is better acquainted with European history than I am. There were totalitarian States in Europe and they all started with the principle that the individual lost his right of appeal to the courts. If I remember—the Taoiseach can correct me if I am wrong—Nazi Germany started by putting out of the universities the professors who were opposed to Government policy and took their means of earning a livelihood from them. That may have seemed a very small point. They were talking against the Government or saying something that the Government did not like and their livelihood was interfered with. Those people could not appeal to the courts. The right of appeal to the courts was taken from the ordinary people. Starting in that way, the monstrous structure was reared which brought ruin to many countries. I am sure the Taoiseach will say that is not contemplated under this Bill, but that was the start—interference with a fundamental right of the individual. That is the point that we have to keep before us in connection with this Bill.
Listening to Deputy Moran, one had the interesting experience of seeing the political mind of the Fianna Fáil Party unveiled. Everyone realises that there is a big principle involved in this section, a principle which nobody could defend. Nobody in this House with any respect for the liberty of the people and the independence of the courts could defend such an attack as is contemplated in this section. Deputy Moran knows that there are a certain number of ignorant people in this country. He knows that such people have been the backbone of the Fianna Fáil Party. He knows that the number is considerable, and he hopes it will increase. Therefore he seeks to have this attack on the independence of our courts brushed aside in the minds of the people by making an attack upon the people who plead in the courts—the lawyers. His line of argument is this: "There is a big sum of money involved and we of the Fianna Fáil Party propose to divide it amongst the poor and the destitute relatives of those who suffered in the national cause. We are going to do a big, public-spirited act on behalf of those poor weak people, but the greedy lawyers of the Opposition Party want to have this money divided amongst themselves. They want to have this case going on in the courts for years so that they will swallow up the amount of money involved."
That is the kind of propaganda that has been used for years to gull simple-minded people, but I think that even the simplest of simple-minded people are beginning to grow up. Events have happened, as Deputy Dockrell has pointed out, in Europe during the past five or six years which have revealed the danger of placing unlimited power in the hands of an Executive, even when that Executive is elected by the majority of the people. Events have shown the danger of taking away from independent courts the power which they should have to check an all-powerful Executive. There is no doubt whatever that if, whenever a question that affects the executive Government comes before the courts, you step in and deprive the courts of power to deal with it you are reducing the courts to complete futility and an absurdity. The time will come, if this procedure is continued, when no lawyer or counsel with any sense of self-respect will allow himself to be made a member of the High Court or the Supreme Court if he finds that every time an action is brought into court which reflects in some way upon the ruling politicians of the country, his power is taken completely from him and legislation is passed suspending the action.
That is a principle which no impartial and no free-minded member of this House could support. Let the courts deal with this case and decide as they will. If there is nothing left when this complicated action is finished, well the amount of money involved is not so big as to justify us in destroying the principle of the freedom of our judiciary to decide all questions of justice. That is the issue that is raised in this section. It is an issue which cannot be brushed aside by appealing to the kind of loutish outlook which Deputy Moran has suggested. In spite of the Fianna Fáil Party, in spite of Fianna Fáil's educational system and their intensive propaganda over a long period, the people are still capable of deciding important issues and this particular issue is too important for the people to allow themselves to be gulled in respect to it.
If we calmly accept this section on the plausible plea that it will save a small amount of money for poor and destitute people, we may find, and the members of the Fianna Fáil Party may find, in time, that we have no protection in this country from an all-powerful Executive, that we can be treated as plain people in Russia are being treated to-day and as plain people in Germany were treated yesterday. We must defend resolutely the independence of our courts. Therefore, no matter how our action may be misrepresented by the Fianna Fáil propaganda machine, we must resist this attempt to destroy the liberty of the plain people.
Deputy Walsh of Drogheda has been 40 years a member of the Sinn Féin organisation. There is no better authority in Ireland than he on the history of that organisation or on its present state. He intervened in this debate on an earlier section to-day to tell the House that, of his personal knowledge, the remainder of the executive of Sinn Féin were in existence and he complained that, being in existence, they were trying improvidently to dissipate the remaining funds of the organisation. His bona fides in making that statement cannot be called in question. He believed he was contributing to the case the Taoiseach was making. He was trying to help the Taoiseach. His capacity to give testimony cannot be impugned for he has spent half a lifetime in the service of this particular organisation. In the light of his testimony we are confronted with the position that a body, for whose continuity and existence the Deputy of the Fianna Fáil Party is prepared to go bail, is striving in the courts to assert their right to their own property. Now, that may be improvident. It may be, in our judgment, foolish. It may be, in our judgment, inexpedient. But surely no one can contend that it is criminal. No one can contend that they are doing something which is against the law. Far from it. They are availing of the law to assert their right to what Deputy Walsh at least holds strongly is their own property, which they hold for the benefit of the Sinn Féin organisation —of which they are the surviving executive—and the national work for which that organisation was originally instituted.
No one will more readily agree than I that in the long history of political organisations or any other human organisations there will tend to be differences and partings on the way, and sometimes there will occur ambiguity as to who departed and who remained. Such a situation appears to have arisen here. The Taoiseach believes that when he departed nothing remained. Mrs. Buckley insists that he was not the first one to abandon the ship and doubtless will not be the last, but she is cast in the rôle of Casabianca and maintains that so long as she is prepared to stand upon the burning deck no one will strip the ship of its sails. We may all have our opinions of her prudence and perspicacity. Most of us have read the case as put by Mr. J.J. O'Kelly and we may all have our opinions as to his prudence and discretion. But can there be any two opinions in this House as to their rights to be equal with their fellow-citizens before the law? That is all I am concerned for.
I have said before that I know nothing of the merits of this dispute. I was never a member of Sinn Féin. I know nothing of the origin of these funds and have no opinion as to how they might properly be disposed of. I am solely concerned to ensure that the rights of persons described by the Taoiseach as insignificant, unimportant, will not be trampled upon and doubtless I am not disinterested in that. I am apprehensive on their behalf lest on to-morrow's morrow I might find myself in similar case.
Bear in mind what it is proposed to do. These people are not contemplating an action. These people are not planning a foray. These people have made their appeal to the court and the court has received them and is at this moment in the process of deliberating the issues joined between the parties. It is quite true that these people, because they are poor people, because they are silly and insignificant people, have been unable to raise the funds to prosecute their cause with the industry and expedition that rich people and influential people could have employed.
Does that disqualify them from the right to have their case tried? Deputy Moran intervened this evening. Deputy Moran is a solicitor and an officer of the courts. He seemed to me to subscribe to the proposition that it is a very laudable thing that Oireachtas Éireann should take an adverse view of one litigant's case, that we should break into the courts, terminate the proceedings and give what he is prepared to describe—a "common-sense decision". Deputy Moran often provides for this House the oddest echoes of the past. A few days ago he talked about the obligation of maintaining law and order and I saluted him as the pleasing echo of that admirable old gentleman, albeit he is dead, Buckshot Forster. There was a time when oppressed citizens, fleeing from the vengeance and ferocity of the executive, used to take refuge in sanctuary —in those days the Church—and the most bloodthirsty and reckless oppressor used to stop short of the sanctuary threshold. Then there came the time when respect to the Church began to dwindle and we got some bloodthirsty villains who, when moved with sufficient fury against their victims, would break into the sanctuary and murder their victims on the steps of the altar. Then when the sanctuary of the Church was turned down a similar protection grew up in free societies whereby men who were oppressed or who feared that their rights were going to be taken from them had recourse to the courts. The principle was that, no matter how powerful the antagonist, once you got into the courts you were safe. Time and time again we see the interim injunction granted, the conditional order of habeas corpus, in which the court says: "We have not had time yet to judge all the merits of this application. Here is a humble individual who has applied to us for protection. We will give it. Let no man touch him until such time as we have heard his case, and if his case is good we will give him an enduring protection; and if his plea is frivolous we will turn him out from his sanctuary where, for the time being, he must be safe." That endured for a long time and the knowledge that that is part of our life is what makes us the free men that we are—the knowledge that if anyone tries to restrict our freedom the courts are there and we can have recourse to them.
There is no power in the land powerful enough to set them at naught. That is what gives me courage to say in public what I think of the Taoiseach. Much as we detest the Government of the country at the present time, this is a free country and every man in it is free to speak his mind, to think his thoughts, to write and say whate'er he pleases within the law. No matter how bad the political Government may be, it is a happy thing for people when they can boast they live under free institutions and that if they have complaints to make all the majesty of the State will be martialled to protect their right. All that is put in peril here. It is the merest absurdity to pretend that we do not always know that the reason the Executive has gone into action with this Bill at this stage is because Mrs. Buckley and Sceilg have announced their intention of subpoenaing the Taoiseach and of getting a particular senior and junior counsel to crossexamine, whom I could name. The Taoiseach is blooming well not going to be cross-examined. That is the length and breadth of it. He thinks that that chapter in history is best closed. Observe what we are asked to sanction. The Taoiseach is the leader of the largest Party in the State. He is the Prime Minister of the country. He is a very important person. He has 70 odd obedient Deputies in this House who will tramp into any lobby he flogs them into for anything. In the hands of an unscrupulous man such power might become the latchkey to dictatorship. In that very different situation in which he has this obedient flock of sheep at his beck and call Mrs. Buckley and Sceilg whom he describes as "insignificant people" challenge him, throw down the gauntlet to the great man, and say: "Trivial and insignificant as we may be, powerful as you have become since you deserted the ship to which we have remained faithful, before the law we are equal and we propose to avail of that advantage".
There is the crisis. There is the powerful pater and once the wicked one has had recourse to the sanctuary of the law he will refrain to use his power to break down the door and destroy him at the altar. Is not that what he is trying to do? Nominally, the defendants in this action are the trustees. They are merely persons whose names appear there and who consented to hold these funds purely for purposes of kindness. The director of this operation is the Prime Minister, and it was his decision that these proceedings should be brought to an end by legislation of this character.
If we do this for the Executive at the expense of Mrs. Buckley and J.J. O'Kelly, two insignificant members of the Executive of Sinn Féin, what guarantee have we, any one of us, that if the necessity for seeking sanctuary in the courts should arise to-morrow or the next day an exactly similar procedure would not be adopted? What individual liberty remains with any of us if there is no power left in the land which can stand between the individual and an Executive stirred by vengeance? Remember, it is just on this slippery slope that every State in Europe has lost its freedom and started on the way down. In every case it was represented that the first occasion for setting aside the courts was due to the wholly exceptional character of the individual case in which it was proposed to be done. But, invariably, the consent of the Legislature to that course was used as a precedent to do it in a wider and wider category of cases, until eventually it became merely the creature of the tyrant.
Think then what we put in jeopardy and the reward we reap. £8,000 of this money has gone. When this Bill passes, there is another £8,000 of litigation available to the parties in this case, because they can contest the constitutionality of this Bill themselves by going to the Supreme Court. When the provisions of this Bill are used in the High Court to stay the action and to compel the court to do the things set out in Section 10, if the court proceeds to do that, what is to stop the plaintiffs appealing to the Supreme Court on the ground that the action was ultra vires the Constitution and that the court was acting outside its jurisdiction? Does anyone question that there is sufficient doubt about whether this piece of legislation is ultra vires the Constitution that the Supreme Court would not at least hear argument upon it and say that the one who brought that issue before them for determination was justified in seeking a ruling from them?
If £16,000 of this fund is spent, there is to be salvaged £10,000 for the excellent purposes the Taoiseach and others have in mind. I will vote gladly for a Supplementary Estimate, if it is introduced to-morrow, to put into a fund from the public Exchequer, £28,000, the whole of this sum, if the Government will drop this Bill. I would sympathise with certain of the old veterans of the Sinn Féin movement who feel that here is a sum of money which would provide an endowment with which old people who did their best in days gone by would be relieved. I can sympathise with their chagrin at seeing it dwindle in the course of litigation. We are a sovereign authority; we represent the people; we have power to act in their name and we have to answer to them for our actions. I will vote for a Supplementary Estimate of £28,000 to-morrow and nobody need worry another hour about the potential beneficiaries of these funds suffering as a result of allowing the law to take its course. Then all this controversy can stop, and all the scandal, all the doubt, all the apprehensions that have been raised will be put an end to and we can find common ground, but not to establish a new fund to be administered by the House as a whole. I am breast high for the proposal to put £28,000 into a fund to be administered by such members of this House as were members of the old Sinn Féin organisation and let them choose whatever form of body they think right to administer this fund in the interest of their old colleagues, or any person who deserves help, or any suitable purpose that commends itself as a proper cy pres trust to a group of members of this House who at one time shared responsibility for the Sinn Féin movement.
It is not the money that matters. It is that most precious right of sanctuary without which written constitutions mean nothing; without which individual liberty is the merest chimera. If I have no place where I can go in the certain knowledge that my liberty will be vindicated by someone who is stronger than the Government, I am no longer free. It is not the disinterested solicitude of the rights of Mrs. Buckley and Sceilg that makes me fight this issue. It is because I feel the hot breath of something that is worse than anarchy upon my neck that Sceilg and Mrs. Buckley should lose the rights without which I would rather die.
It is because I am afraid Deputies may not realise the gravity of the decisions that are being taken to-day that I exhort the Taoiseach to sound all the Parties in this House as to whether the proposal I make would not be much more acceptable. I dare to swear it will. If that course is adopted, then all our apprehensions disappear and the fire and the controversy, which are only just beginning, will be averted. Surely £28,000 is a small price to pay for the deliverance, more especially when we are paying it to trustees whose function will be to relieve those who served the country according to their consciences.
I intervene in this debate, without having had any intention of doing so, largely because of the speech of Deputy Moran. Amongst the many difficult tasks that faced the first Government of this country after the establishment of this State, and perhaps not the least difficult of those tasks, was the problem of seeing that the Irish people realised and appreciated that the laws which were enacted by the Oireachtas and which were being interpreted by the courts were the laws of the Irish people, and that the judges who were interpreting those laws were judges taken from the Irish people and who understood the Irish people. To bring home the realisation of what had been achieved and what was necessary if this State were to survive, Kevin O'Higgins gave his life.
An effort was made in every possible way to see that our courts justified the confidence of the people and that the people had confidence in our judges. I think it may be safely stated that, after years of effort, years of sacrifice, in the course of which some prominent people laid down their lives to see that achievement fulfilled, we reached the stage where our people did have confidence in our courts, and where our courts did justify the confidence the people reposed in them. Anything which disturbs that confidence of the people is to be seriously deprecated. Anything which makes the people suspicious or uneasy that the Legislature is unduly interfering with the functions of the courts, anything which makes it apparent to the people that something is being done for a political motive by the interference of this House with the functions of the courts, is something which will undermine the confidence which has been established in the hearts and minds of our people in their judiciary.
If this Bill does that, then we ought to drop it. Having regard to what has taken place in the debate, it seems to me there is an uneasiness in the people about this Bill and, when it is stated here, as it appears to have been stated by the Prime Minister, the head of the Government, that some sort of what he called an unreal decision would be given by the courts on certain facts and that that would justify the Oireachtas in stepping in before the judge who had to deal with this particular action exercised his functions, I think that the fear that I have will be justified, that that confidence which was built up by effort and by sacrifice, the confidence of our people in their own laws and in their own courts, will receive a very serious blow.
I appreciate that there is a problem to be solved in connection with these funds; I appreciate that these funds should not be allowed to remain dormant for ever and that something should be done. That that problem is one of some difficulty is fully appreciated, but what is not appreciated is that no effort has been made through the years to deal with that problem as it existed and while these funds were lodged in court, and why it should become so urgently essential, when the plaintiffs in a pending action in the High Court are pressing their claim for a hearing, that this Legislature should intervene to stop that action from being proceeded with to a judgment, I fail to understand.
Deputy Moran stated that this was not the first time we had done something like this through this Chamber of the Legislature. He is quite right in that assertion. Every time any such action was initiated by the Government, we opposed it. The very example that Deputy Moran gave, we opposed it for the same reasons of principle that we are now opposing this particular Bill. The Legislature, in my submission, should never interfere with the action of the judiciary unless the public interest gravely demands it.
I recommend the Taoiseach to the consideration of what I think was the first occasion when the Irish Legislature interfered in connection with a matter that had been the subject of a suit in the courts between private litigants, and that was in the case of Lynam and Butler. It fell to me, as my first official act, in the year 1926 to see that the efforts of certain people to subject the decisions of our Supreme Court to the examination of an outside body were nullified.
That task was entrusted to me by the late Kevin O'Higgins and it resulted in the passage of the Land Act of 1926, which was subsequently described by the Lord Chancellor of England as an amazing expedient in the circumstances. That prevented a private litigant, not from prosecuting his actions in these courts—it did not upset the decision of our courts—but from doing that which the people of this country did not want, namely, an appeal to the Privy Council, an outside body. And it did more than that. It declared the law to be, and always to have been, what our Supreme Court had laid it down as having been.
If Deputy Moran thinks that is a precedent for this particular action, then he is vastly mistaken. What was done in that case is what I suggest the Taoiseach could take as a headline— that if and when it becomes necessary to interfere with the decisions of our courts, it should be done only when the public interests gravely demand it, and it should be done so far as possible only in circumstances which recognise and establish the decisions of our courts, and if it is necessary to pass legislation in consequence of those decisions, those decisions must be regarded as sacred.
Here we have a case involving what is comparatively a small amount of money which has lain dormant for many years. I have already stated that I realise there is a problem to be dealt with, but this is not the time nor the place nor the means to deal with it. The time is at the moment when this action is being pressed for hearing, when counsel engaged for the plaintiffs are going to the court day after day asking for a hearing.
Deputy Moran suggested that the delay in bringing this case to a hearing was itself strong evidence, if not conclusive evidence, that the plaintiffs had no real case at all and that it was something in the nature of a blackmailing action. I do not know anything whatever about the merits or even about the facts of the plaintiffs' case, and I care less, but the suggestion put forward by Deputy Moran in regard to the delay in bringing proceedings could not under any circumstances be regarded as a justification for departing from a principle which should be held sacred by this Legislature, the principle of not interfering with the constitutional right of citizens to go to the courts and have their cases adjudicated upon by the judges appointed for that purpose. The procedure of our courts enables a litigant who has been harassed by an action, in which delaying tactics are adopted, to meet and defeat these tactics. I understand that some steps were taken by some of the defendants or the parties to this action with a view to seeing that the action was disposed of. The fact that a delay takes place is not due sometimes to any belief on the part of one of the contending parties that he has not a good case. It frequently arises—it may possibly be the reason in this case; I know nothing about the case and, as I say, I care less—that the parties have not the necessary funds to enable the action to be prosecuted to the end.
I do think that we ought to protest that, in a matter of such insignificance compared with many of the problems with which this Legislature has to deal, an attempt should be made to infringe on the fundamental right of citizens and to lay down a very bad precedent. I might approach this problem in an entirely different spirit if, after the plaintiffs in the present action had proceeded with their action and the court had determined that they had no case, something remained to be done with reference to the fund. Then the question could be considered calmly and without any danger of infringing fundamental principles. I do not think even in these circumstances, comparing the insignificant sum of £28,000 with the amount of money we normally have to administer, that this House should be involved in a consideration, occupying Parliamentary time, of what should be done with that particular money.
Some other method could easily have been achieved by consultation or co-operation between whatever parties were interested in the old days in this old organisation. Before the splits came and a spirit of bitterness entered into the matter some measures of agreement might have been achieved as to what should be done with the money. An agreed Bill could then have been passed without any bitterness or controversy, or the matter could have been left to the courts.
It may be that there are individuals who gave subscriptions to this organisation who are interested in this matter. I do not know, but as I understand the law, and I speak with great hesitation, in a matter of this kind, if it is established that an organisation has come to an end, whatever money is left belongs to the original subscribers. There is a well-known case of an Oxford professor whose daughters were in very needy circumstances and in very poor health. A subscription was made up for them and when they died something was left. The original subscribers then got back whatever was left, between them. It may be that there are some original subscribers who may want their money out of this £28,000. They are entitled to make their case in court if they wish. I do not know if there are any such individuals but we are not entitled to say that there are not such individuals until the court has determined the matter. The courts could easily deal with these funds under the machinery which the courts have for dealing with charitable funds. I would say, once any claim by private individuals to get any portion of the funds refunded to them, on the grounds that they were original subscribers, were dealt with, these funds could in the legal sense be referred to as charitable funds and be administered by the Commissioners for Charitable Donations and Bequests or a scheme could be drawn up for the administration of the funds cy pres, as it is called, without wasting the time of the court.
Here is an action brought by a number of individuals, an action which is on the verge of hearing. They would probably have their action heard by the courts if this Bill had not been introduced, in the next few weeks, certainly before the end of the long vacation. In that state of affairs we are wasting the time of this House on this Bill and we are introducing a note of bitterness that should be absent. Secondly, we are preventing the exercise of a very fundamental principle which should be sacred to every member of the House, no matter what side he belongs to. It is for that reason, because we are infringing on the fundamental rights of the individual to go to court to have his case adjudicated and, because we are setting up a bad precedent, that I venture for the first time on this Bill to enter my protest. I protest on the grounds of principle, on the ground that we are setting up a bad precedent and I cannot but have in my mind what was stated here within the last 12 months by a representative of the Government Party who now occupies a Ministerial position when he made observations which could only be, and were quickly interpreted, as being in derogation of our own courts.
Some statements have been made to which I should like to refer. If I thought or felt that the principles which it is suggested by the Opposition are involved in this case were at issue, I would think £28,000 or even twice £28,000 a very small sum to sacrifice, but I have not been convinced by anything which I have heard that such a principle is involved. I believe that we are doing justice here by this proposal. It is the common knowledge of everybody in this country that these moneys were subscribed to a great national organisation representing practically the whole of the Irish people. To point out the difference I asked how could it be said that people, who never had got these funds, never had any charge of them and who were so insignificant that I described them in the terms I did, could claim to be such an organisation. That was the spirit in which I introduced the comparison, and not to suggest that because a person is poor or something of that sort, he has not equal rights before the law with his fellow-citizens. I made no such suggestion.
It is because I know the facts of this case are so well known that I have not the slightest fear that anybody in the country will think we are going to establish a precedent by our action here. This is a unique thing in so far as this State is concerned. It is going to be unique and remain unique, because the great national organisation to which these moneys were subscribed, to the knowledge of everybody, was broken in two at the time of the Treaty, or subsequent to the Treaty, at the time of the attack on the Four Courts. It may be suggested, and I do not say it would be beyond the power of proof, that a certain continuity from the old to the new has existed, but do you think that, because there was some formal continuity of that sort which might possibly be proved, that would in justice say that the moneys subscribed, and well known to have been subscribed, in these circumstances went over? Is it not clear that that would be sacrificing the substance to a mere form?
The courts are not in a free position in dealing with these matters. I said the other day—the actual word I used may not have been the best—that the courts might be compelled to come to an unreal decision. What I meant by that is known to everybody—that our courts are fundamentally courts of law. They are constrained to give their judgment, not in regard to what might be looked on as absolutely fundamental right but in accordance with the law as set down by the Legislature, with precedent or the common law, and it is because they were constrained to do that that, long ago, there was established side by side a system of equity until that system has become practically as formal as the law itself. I say that we are here the court of equity in this matter, the fundamental court of equity, and that what I am striving for here is that substantial justice should be done as against formal justice.
I am not saying that it could be proved before the courts that formal continuity existed, but if it did and if, constrained by either some precedent or some law, they came to a decision on those lines, I would say that so far as fundamental justice, fundamental right, was concerned, the decision would not be in accordance with all the facts. One Deputy pretended that because I said the courts would not take all the facts into account, I was somehow casting aspersions on the courts. The courts, we know, cannot go beyond the law and a judge is not at liberty to go beyond the law.
There is a well-known case that comes to everybody's mind in this connection. Suppose A has lent a sum of money to B and the statutory period for repayment has elapsed. No matter how just A's claim, and no matter how much the judge may regard the debt as properly due and no matter how much the person who got the money is known to be able to repay and the person who gave the money is known to be in need of it the law will be pleaded against him and redress cannot be given. That is an obvious case. A person who escapes his obligations legally in that sense, who may get legally free, is not in conscience free and he is bound, if able to and if the circumstances are as I have outlined, no matter what the court thinks, to give back the money to the person who lent it, or gave it to him, if he gave it in the form of a sum to be paid back. That is a fact, and it could well happen in cases like this which are unique that the same sort of wrong could be done.
I say, and I am prepared to go anywhere in the country and say, that everybody who knows the circumstances in which these moneys were contributed, in the first instance, knows perfectly well that those who are claiming these moneys at the present day because of a formal continuity or because of something they think they can establish, are not entitled to these moneys. These moneys were a national fund. The national organisation to which they belonged was, first of all, shattered by the division which followed the attack on the Four Courts.
I did my best, following that, to try to keep the organisation in being, but there was nobody in the country who could deny that the organisation had been split in two. At a later period, another division came. It is quite true to say that, at the time of the division, those who left were in a minority, but we very soon proved before the people that we were very far from being a minority of that organisation, and the truth to-day is that, if we could do what has been suggested should be done, if possible, that is, to find the subscribers of that money, I feel certain that something like 90 per cent. of the people who subscribed that money would subscribe to the statement that the people who are claiming that money now did not represent them and did not represent the views they held. I would say also that, if there is any body in the country which did represent the national view at that time, it is the elected representatives of the Irish people, who are here.
A queer topsy-turvydom seems to be operating in the minds of those who are making out principles here in regard to this matter. This is a sovereign Legislature, sovereign under the Constitution. We can do nothing which is at variance with the Constitution. Anything we do can be declared null and void, if found to be contrary to the Constitution.
You are making it as difficult as you can.
I am doing nothing of the kind. There has been no suggestion in anything I have said that the proper constitutional machinery cannot be operated to test any case put up.
What you said is what is in the Bill.
What I have said is in the Bill, and it is true, and what I am saying now is true. The Constitution is the safeguard, and, under the Constitution, this House is sovereign. The courts are compelled by the Constitution and by the whole conception of parliamentary government and parliamentary institutions to carry out the will of Parliament, subject to the Constitution.
Why do you not let them do it?
The next thing brought up is that because we happen to be a majority of the elected representatives, we do not count at all, that the individuals who constitute the majority are not to count, but that the individuals who constitute the minority are. But we have the spectacle of different groups in the minority trying to get themselves into a single Party in order that they might become a majority. That is quite all right, but, so far as the reasoning is concerned, I say that the majority, whether as a single Party or as separate Parties, does represent by its vote here for the time being the will of the Irish people, and that there is no other way of getting it, except when election time comes along under the Constitution and the Irish people have to decide.
When we bring this matter here, we are bringing it to the sovereign court of justice, the court which can decide upon the substantial justice of what is proposed, and every act of ours here, every single measure and thing we do here, is to be judged by its fundamental justice, that is, its justice from the point of view of the well-being of the people as a whole, the common good. Bringing in this Bill, we have to stand or fall by it on the basis that it is for the common good. The only decent arguments, as I should describe them, put up on the other side were as to whether our action in this instance makes for the common good or not. As I said at the beginning, if I were to convince myself that the arguments put forward by the Deputies on the other side were correct and that the principle they referred to was involved, then I should say that it would be the duty of Parliament not to take this action, that the sum of money involved would be a mere bagatelle compared with the damage that would be done by violating that principle. But I see no principle being violated.
If there ever was a case in which it was clear to the minds of the people that we were doing the right and proper thing in preventing this money from being frittered away, this is the case. There is not the slightest doubt in the minds of the people that we are doing substantial justice in dealing with this money in this way. There is no fear that the people will be scandalised or that they will feel that an attack is being made on the independence of the courts or anything of that sort. The question of sanctuary, brought in here for the first time by Deputy Dillon, is a new principle, so far as I understand. I do not know exactly what it means. It is suggested by some people that we should wait until the courts would have decided and then take action. Action has been taken in cases where the decisions of the courts have been known to be contrary to the intentions of the Legislature. These cases are few, and I am quite willing to admit that it would be very wrong, indeed, lightly to enter into this case. This is no light matter.
These were moneys subscribed by the Irish people for a certain purpose. I have been in close touch with the movement the whole time. I was president when these moneys were subscribed and I have been in touch with political developments in one way or another since. I have no hesitation in saying that it would be substantial injustice—no matter how formally it might appear to be true—if these people were to get the money. What is happening? Not having the power to get the money without going to the courts, they are striving to have, at any rate, the satisfaction of seeing that the moneys will be dissipated. We waited, as I said before. It was the legal representative of the treasurers who had lodged the money in court who took the initiative by coming to me. He said that these funds had been lying there and that he was anxious that any obligation he had should be ended. He suggested that legislation might be introduced to deal with the fund.
When that was suggested, I said that some of those who were members of the executive of the organisation when these moneys were subscribed were still living. He mentioned to me the plan he proposed. It was substantially what is in this Bill. I suggested that he should go out and see whether those I had mentioned would approve of that and, if they did, I said I should be prepared to recommend the Government to bring in a Bill and that I felt that the Government would do so. He went out and got agreement, with one exception. There was some question of the exception being brought over to consider that this was the right and proper method and it was suggested that this proposition should be considered at a meeting. This action was then brought into court for the first time.
A statement of claim—I am not sure about the technical term—was put in and a defence was lodged by the Attorney-General. Deputy McGilligan tries to pretend that I should find myself in extraordinary difficulties if I were to be called as a witness in this case because, in the statement of defence, the claim of the plaintiffs was denied. Everybody knows that, if you do not deny the allegations in a statement of claim, they have not to be proven. For the legal conduct of an action, it is absolutely necessary, if you want to have the averments of the plaintiffs tested in court, that they should be denied. If not denied, they are taken as accepted and may never come before the court for trial at all. These matters were settled by the Attorney-General. So far as I should be concerned as a witness in court, all I should have to do, if asked, would be to give evidence as to what happened at a particular time. Giving that evidence would not embarrass me in the slightest. I should not have to make the final decision. If that decision were to go in a way with which I disagreed, I should be immediately relieved of any responsibility. So far as that is concerned, there was no difficulty to be apprehended. I am assuming that the court would see that the questions I would be asked would be relevant to the issue. If that were done I should have no difficulty in answering the questions put.
I might be asked: what was the position when these funds were subscribed and was I president. I might be asked, too, was I trustee. I was appointed trustee, I think, on the 9th December, 1921. It was after the signature of the Treaty. I was proposed and unanimously accepted as trustee of these funds in the belief that, if there was a division, as there was likely to be, I should act justly. There was a sort of responsibility upon me. I do not know how, ultimately, I should have to carry it out—whether I should have to do what the treasurers ultimately did and say: "I am trustee but that does not mean that I have any right to dispose of those funds in a particular way; I shall have to leave that to the courts". The moneys were lodged in court by the treasurers and, if I were asked such questions, I should simply have to state the facts as I knew them, so far as my recollection would serve me as regards matters which occurred over a quarter of a century ago. My recollection might be weak but there would be documents which could substantiate the truth of the situation. I might be asked what the position was when I tried to re-organise Sinn Féin. I should say what I have no hesitation in saying here— that I tried to re-organise the old organisation because some of the members of the executive wanted to let the whole thing drop. I tried to re-organise the organisation. How far I succeeded would be a matter for the court to determine in accordance with the facts. If I were asked relevant questions, I might be asked: when you put up those propositions in 1926 for the future policy of the organisation and when you were turned down, were you a majority or a minority? I should have to admit that I was a minority on the vote of the organisation at that time and that I left the organisation. If I were asked: what is the position to-day, I should say that, in the period which had elapsed, the organisation had changed very much in character and that, no matter what form of continuity they could show, the substantial fact was that the organisation to which these moneys were originally subscribed represented the Irish people as a whole while the body that claims the moneys now, no matter what they may say about formal continuity, do not represent the people as a whole.
If the money could be given back to the subscribers, it is suggested that would be the proper thing to do, but the circumstances were such, in the way in which the money was collected, that it would be quite impossible to do so. An individual subscriber might be able to come forward and say: "Here is my receipt; I gave this money to such a body; give me my share of the money." It could be done in that case. However, you could not deal with a question of this particular kind in that way. My way of dealing with it, which I believe is substantial justice, is to say that the representatives of the Irish people here, in whose cause and for whose fundamental purpose these moneys were subscribed, comprise the most equitable body to decide how the funds should be used.
When I came in with this Bill, I said that I was not wedded to it. As a matter of fact, personally I do not care for the method of approach which is proposed for the disposal of these moneys, as I am afraid that, no matter how it is done, a considerable amount will be spent in administration. That is a pity. I would very much prefer what was done on a previous occasion, in the case of the anti-conscription funds about which we could not agree. It was decided to hand them over for an educational purpose and those moneys became the basis of the Mansion House scholarship. I would prefer by far, if it were left to me, that these moneys should be used for some purpose which was closer to the common purpose of all the Parties who might exist to-day and who formed part of that organisation. One of the primary things we had in common was the restoration of the language.
I tried over a period of years to get the Sinn Féin organisation to agree with the other part of that organisation which had broken away at the time, that the moneys should be used for some such purpose; but I failed in that. What I am interested in is to see that the fundamental purposes for which this money was subscribed and the purpose in the minds of the people who gave the subscriptions should be fulfilled. I am also interested in preventing this money from being wasted on purely legal arguments over something which, in its nature, should not be decided on strictly legalistic lines. It should be decided on the fundamental merits of the case. If there had been any disposition on the part of the Opposition to co-operate in any way in dealing with this matter, I would have been only too happy to do so.
Give it to the St. Vincent de Paul Society and that will settle it.
If the principle is the principle that has been suggested in the Opposition Benches as being involved, we would not get any further in that way. I do not care in the slightest, as long as it is a national purpose agreeing with that for which the original subscriptions were given. I have no interest whatever in the way in which the money is dealt with. This particular scheme was put up to me—I did not originate it—on the basis that the majority of the old executive would have agreed to it. The death roll in the old executive has been pretty heavy, and only two members are alive of the officer board of nine which was decided upon—as far as my memory goes—as the body that would have control of the organisation after the February Árd Fheis of 1922. Those two are Dr. Kathleen Lynn and myself. Of the other body, the standing committee, I think only seven are alive out of 15. When Judge Wyse Power went to meet the existing members, there were more than there are to-day. In the five or six years that have intervened, a further number has died off. That body seemed to be willing to meet and try to decide the matter. It could not be said we were all of one opinion, as we had gone different roads politically. If those had met and had agreed upon a scheme of this sort, I would have been willing to adopt it.
I know that a certain amount of good can be done by the money, if it is administered properly. There are some cases which it would be desirable to relieve. Some Deputies, in speaking about this Bill in the beginning, asked why we did not bring in legislation to deal with cases like that, instead of having them dealt with out of a fund of this sort. It is impossible to deal with that by legislation, as the moment you bring in legislation you have to deal with a particular type of person and you have to be definite in terms of a general class and then the law takes its course. In the case of a body like this, it is intended they would have a good deal of discretion.
It was suggested to-day that we were going to hand-pick the board. I would be very willing and happy to have co-operation, to have a panel of names from the Opposition, which would suggest some people they would like to have on the board. However, somebody has to appoint the board, somebody has to be specified in the Bill. The Chief Justice was brought into this question. If I thought there would have been what I regard as scandalous attacks on the office and on the person of the Chief Justice through the introduction of this Bill, I certainly would have thought twice before bringing it in. The Chief Justice was thought of by us in a very simple way, as a person in whom there would be public confidence as chairman of this board, so that these funds would be administered only in accordance with the general terms of reference set out in the Bill. Someone has to decide on the appointments to the board and it is on the actual appointments that judgment should be passed. Why anticipate that and say that the Government is going to appoint creatures of their own just to do what they want? That is not the spirit in which it is proposed at all. If we were anxious to do that sort of thing, we would not have waited for 15 years to take action of this sort.
Regarding the suggestion that we were taking away from the independence of the board, since a committee could be set up on the initiative of the Attorney - General to investigate whether a particular person should be removed or not, my view is that the idea of giving the board continuity would require something like that. We are leaving them independent from day to day, but there must be some provision by which, if a person is going to operate for life, one can know whether the person is capable of functioning or not. We have to do that in the Constitution, even with such a high office as that of President. We have to have some machinery. If anyone suggested a different method, I would be willing to examine it, to see if we could not get agreement. I am anxious to get co-operation from members of the Opposition in trying to get this done, but am refused that co-operation on the ground that some fundamental principle, which I cannot see, is being violated here. This is a unique position with regard to these funds. If the Opposition hold that position and if I cannot get co-operation from them any more than I could get co-operation on the resolution which was passed recently about the privileges of the House—that is from the principal Opposition, because I forget whether the other members of the Opposition refused to co-operate— then the only thing for us to do is to go on and do the thing ourselves. I think I am explaining the position fully. There is only one way of resolving differences on disputed questions here and that is by a vote of the House.
The speech to which we have just listened compels me to intervene once again because it consists of a variety of muddled thought, false analogies and dangerous doctrines. The Taoiseach's speech is an example of the trite saying that a little learning is a dangerous thing. As I understand the position, he wishes to draw a distinction between law and what he calls a body of equity. We learned in our student days that equity did not vary as the phrase went with the chancellor's foot.
The Taoiseach's speech was to say that if the law does not suit him then equity is to be the length of the Taoiseach's foot. It is to be measured by what he thinks is to be the justice and equity of the situation. We are told here in plain language, so far as we can get any plain language from the Taoiseach, that this matter is decided now, irrespective of what a decision of the court might or might not be because, he says, either these people will be declared to be wrong by the courts, in which event everything is grand, or they will be declared to be right by the courts, in which event the Taoiseach says: "I say they are wrong because I know, and, therefore, equity is to be measured by while my knowledge of what I say is correct." Because a decision may be given in that case by the court, not on the law but on the facts as proved in evidence in court before an independent tribunal, if that decision is against what the Taoiseach conceives to be the facts as he knows them, and as he thinks they ought to be, then that decision, although a decision of a court of law, is something contrary to what he says is equity.
There is no such thing as a distinction between equity and law. If the Taoiseach will ask any experienced judge that he knows he will be told that the only anchor to which justice can be attached is the full interpretation and application of the law as declared by the courts. Otherwise, you will have each individual Deputy acting as a judge, as the Taoiseach wants to do now, giving what he conceives to be the merits of the case without hearing the full facts. There is nothing that leads to greater injustice in the end than to find each judge giving what he thinks are the merits of a case and not giving the full application of the law which is the only yardstick by which to measure justice. I think it is a very dangerous doctrine for the head of the Government to declare that there is a distinction between equity and law. The Taoiseach brought in the false analogy between the conscience of a person who gets a decision from a court and the Statute of Limitations that he is bound to pay a debt. The law declares that he is not. I am no theologian, but I assert that the Taoiseach's theology is absolutely incorrect, and that it is not binding upon the conscience of a person to pay a debt which is statute barred.
The Taoiseach said that he is bound theologically and legally, as well as in justice according to his own lights, as to what ought to be the situation. I say that is a dangerous doctrine that ought to be put an end to at once— this doctrine that something like equity comes out of one man's mind in this country. That is what I am protesting against, the suggestion that there is a difference between equity and law. If the Taoiseach says that there is a matter of conscience in any way under the Statute of Limitations then why, during the last 15 years, did he not bring in a Bill to do away with the Statute of Limitations? That is as false an analogy of the facts of the present case as could possibly be conceived. It is a false analogy, false theology and a dangerous doctrine to lay down in a country of this kind, and I think that the sooner it is repudiated by the Taoiseach the better.
I repeat that a person who gets a loan of money and knows that he should pay it back is bound in conscience to pay it back.
I know of no such case. If the law says that a person is not bound to pay a thing back there is no matter of conscience in that. A man is entitled to act in accordance with the law of the country, passed in accordance with the principles of ethics. I know of no law of conscience, of theology or ethics to force a man to pay back money in conscience. I repudiate any such doctrine being put forward as an excuse for this Bill.
The position is that the Taoiseach has decided this—that is what it comes to—because he knows the facts. I am a member of this House and I am supposed to vote and act according to my conscience on this Bill, and according to what I think is right. I do say most solemnly that I know nothing whatever about the facts of this case beyond the fact that there is an action pending in the courts of justice of this country in which certain people claim that they have a right to these funds. I do not care whether that action succeeds or fails. If the plaintiffs fail in that action then, as Deputy McGilligan has asserted, they will be condemned in the payment of costs for their failure.
Not necessarily, as far as I know.
The Taoiseach knows.
I know perfectly well that if the court were to say that there was a reasonable case, it might not do that.
If it is a reasonable case you are taking it away from the court. If those people have an unreasonable case they will be dealt with by an impartial judge. If they have a reasonable case you are interfering with their rights under this Bill. The Taoiseach says this House is a tribunal of fact, the best tribunal of fact to determine the facts of this case. No tribunal of fact can determine a question of fact without knowing the facts. I suppose I am in as good a position as any member of the House to get to know something about the facts if I took the trouble to ask some colleagues in the Bar Library. I certainly know very little about the facts. I do not know enough of the facts to enable me to say that this is a Bill which ought, in justice to the plaintiffs or anybody else, to be passed. I am told that the justification for the Bill is that this House is a tribunal of fact. The representatives here are elected to consider and to pass measures for the security, safety and welfare of the State, but that this House is a proper tribunal of fact, I repudiate that suggestion altogether. No body can be a judge of fact unless they have the facts before them, and the facts have not been brought before this Assembly. I am a member of this Assembly and I know very little, if anything, about the facts. I am told by the Taoiseach that I must vote one way or the other on the facts. I have no facts. I am unable to determine the facts, and, consequently, the entire basis of the Taoiseach's argument falls completely. He says these are the facts and because he says they are the facts, therefore, they are the facts, and he says if the courts decide contrary to that, if the courts decide that these plaintiffs are entitled to these funds, or any of them, they are deciding then contrary to equitable principles and in accordance with legalistic notions. I do not know what he means. I do not know what legalistic notions are or what are these matters that the Taoiseach brought into his speech about fundamental principles of equity as distinguished from legalistic concepts. I do not know what fundamental principles of equity are.
The day has long since passed when there grew up in the courts of Britain a body of principles which were not, as the Taoiseach would have the people think, a body of principles that varied from time to time, but were as definite and ascertainable as the common law of Great Britain. After a certain stage had elapsed, the principles of equity were as well settled and were as well known and the manner in which they were administered was as well known as the principles of common law. They were brought in, not as a body of doctrines that varied from time to time or that varied, as was said in the phrase that I have repeated, with the chancellor's foot or with the chancellor's conscience. They were certain principles that grew up over a long period of years to meet the exigencies of the situation in a particular state of civilisation in a particular country.
The Taoiseach, with his little learning, proceeds here to talk about fundamental principles of equity as distinguished from principles of common law. I regard that as a dangerous doctrine. I want to see the principle established here that the courts of this country are the proper body to interpret the laws passed by the Legislature of this country and that nobody is to come in here and say: "I say that is contrary to equity and, therefore, because I say it, the Party that I belong to and that is for the moment the majority of this House must override the rights of the individuals as declared by our courts". I say it is a false doctrine. The speech which we have just listened to by the Prime Minister is even more dangerous as showing that there is a far more dangerous principle underlying the introduction and the forcing of the passage of this Bill than even I thought when I was compelled by the speech made by Deputy Moran to rise to make a protest.
I do not think Deputy Costello has grounds for his complaint about the failure of the Taoiseach to use plain language. Deputy Costello is an expert in these matters and if he reads sub-section (1) of Section 10 of this Bill he will find that the language is very plain to anybody who wants to understand it. It is sufficiently clear to prove conclusively that this is a cool, deliberate and brazen attempt to interfere with the constitutional rights of individual citizens as well as the rights of organised bodies of citizens.
The Taoiseach speaks about fundamental principles and the purpose for which this money was originally subscribed. We are all either old enough or young enough to know that the money that was subscribed to the Sinn Féin funds by the patriotic citizens of the 32 Counties was subscribed at that time for the purpose of helping the Taoiseach and those who were identified with him—General Mulcahy and others—to secure the establishment of an Irish Republic. We know that, whether the Sinn Féin movement still consists of the heirs and successors of the original body, or not, it is an active organisation, in active existence, still fighting for that particular aim. Some of us may still subscribe to the aims but certainly I am one of those who do not subscribe to the tactics adopted by the body now in existence and the Taoiseach separated himself from the original body because he did not agree to pursue the tactics that were being pursued in or about 1926.
Now he talks about co-operation. I have some idea of the meaning of the word "co-operation" to the Taoiseach. I paid for my education in that respect and other Deputies on this side of the House also paid for the experience that taught them the Taoiseach's meaning of that word. Co-operation is not a one-sided arrangement. Co-operation is based on confidence between the Parties, faith in an objective and belief that the strong man—that is the Taoiseach in this case—is putting all his cards on the table. I do not think the Taoiseach is in the habit of putting all his cards on the table. He is always in the habit of keeping the joker or the ace of hearts up his sleeve when playing the political game of cards. If the Taoiseach wants co-operation, let him put all his cards on the table all the time. If he wants co-operation for the purpose of carrying out an arrangement of this kind he should seek it in a straightforward way before he brings in a brazenly worded measure of this kind, deliberately designed to interfere with the rights of the citizens of this State and to deprive them of the rights they have got under the Constitution, which the Taoiseach has christened his own baby.
Deputy Costello, Deputy Dillon and other lawyer Deputies have on previous occasions warned the Taoiseach about the doubtful constitutionality of certain sections in certain Bills. I thank God that we have left in this State one who has the power, if he exercises it, to refer sections of a Bill to a body that will protect the constitutional rights of citizens. That has been done on other occasions. If this Bill passes, in its present form, containing in it the present Section 10—I have only a common-sense idea of the meaning of the section and I believe that this section, sub-section (1) particularly, is unconstitutional—I hope the first citizen of this State will refer the Bill to the body that still has the power to override the Taoiseach and to prevent the Taoiseach from having the last word in interpreting the common good.
Of what body is the Deputy speaking?
I understand there is a body in this State——
The Supreme Court?
Yes.
But, sure, the Chief Justice is already in this.
I should not like to engage in an argument with Deputy McGilligan on an issue of that kind but, in spite of what he says, I hope the President will still have power to refer the matter to the Supreme Court.
Oh, yes.
I hope, particularly if Section 10 remains in the Bill, that he will exercise the right, seeing that there is such doubt in the minds of the members of this House, to refer the Bill to the Supreme Court for final decision on this vital issue. I could not possibly vote for a Bill containing what I understand to be contained in sub-section (1) of Section 10 of this Bill. In no circumstances would I do so. I believe it to be unconstitutional and I hope the President will refer it to the Supreme Court and thereby safeguard the rights of individual citizens and organised bodies of citizens.
Unfortunately, Deputy Davin has overlooked the fact that the Taoiseach has informed the House that he consulted the Chief Justice and, under Section 4, the Chief Justice has consented to act as the chairman of the alternative tribunal, and that, therefore, if the Supreme Court finds this Bill to be unconstitutional they will be in the extremely awkward situation of finding that the Chief Justice himself took part in what they have deemed to be a serious trespass on the constitutional rights of the people. I noticed with some relief that the Taoiseach is hard pressed. Did you hear him cross-examine himself?
Did he answer his own questions?
What a happy experience cross-examination would be for us all if we could ask the questions. But he is perfectly open and above board. He afraid to go down and give evidence in the courts! He afraid to be put on oath! He afraid to be put in the witness box! He will go right in, in our presence. In he steps. On with the wig and gown, asks a question, rushes around to the witness box, answers it openly and frankly. Back to the Bar. On with the wig and gown, asks a question, back to the witness box, answers it—as open as the day, simple as a child, clear as glass, anxious to answer any questions that anybody could think up to ask him. But he is everybody and he is going to take mighty good care that he is not going to be cajoled or coerced or persuaded or prevailed upon to enter any witnessbox or court in which he will not be everyone—judge, witness, juryman, counsel for the defendant and counsel for the plaintiff as well. I do not blame him. That kind of codology is good enough for the Party he leads. We can see them all with their mouths falling open. The Opposition confound them. The Opposition allege that Dev would not go into the box.
The Taoiseach.
The Taoiseach. There he was in the box, eyes pressed, answering away like one o'clock. Every line, every question, every answer. I have no doubt Radio Eireann is saying now that the Opposition slumped in their seats as the Taoiseach tore them to ribbons. Oh, that codology has no more relevance to the real issue here involved than if he had stood up in his place and played Phil the Fluter's Ball on a penny whistle. The issue was straightly put by Deputy Davin. Is Section 10 (1) to become the law? What matters is that the Prime Minister of this country can say it would not be in accord with all the facts if the court returned a verdict that he believed would be wrong. We, says the Taoiseach, are the court of equity. This is the language of madness when a man says in the same breath: “If the courts find contrary to what I believe to be the facts then their verdict will not be in accord with all the facts,” and in the next breath: “We are the court of equity.” Who does that call to mind? Who is the only other man in Europe who in this century allowed himself to be carried away to the point of claiming before the world: “I am the national conscience”? I will not answer that question. Let every Deputy answer it for himself. If he asks his neighbour he will tell him, and he will tell him how the man who persuaded himself that that was true ended up, and the nation which committed itself to his care. The Taoiseach likes to refer when in this particular vein to this proposition. This is a democracy, and in the last analysis the true test of a democracy is: shall the will of the majority prevail? That is not the test for democracy. The test of a democracy is, the measure of the majority's respect for the rights of the minority. When you find the majority recoiling from its power to impose its will on a minority who protests that a fundamental principle is here involved then you have a true democracy, and it is the measure in which that majority imposes that self-control that is the measure of a free democracy. We will do this, we will do that, by the power of our majority—“If need be,” the Taoiseach will repeat. That is the dangerous part of his mentality. So long as everybody is prepared to co-operate á la de Valera democracy flourishes.
The Taoiseach.
But when somebody claims that they stand upon a point of principle he feels constrained to remind all and sundry and, in the last analysis, that must prevail. As Deputy Costello has said, if the situation in which we find ourselves, apprehends that the verdict of the courts on the law as it at present stands will produce a result which is other than we would wish it to be we have a perfect right to say that out of the national resources we will restore the position to what we think it ought to be and if the courts award this money to Mrs. Buckley or to Sceilg or to anybody else then we will find funds to put £28,000 or such other sum as may be fair and equitable in the hands of trustees representative of the old Sinn Féin organisation. I have said once and I say again I will vote for that. But that is a very different cup of tea from blundering into the courts and smashing up the judiciary. The true test of democracy is this. Does the Taoiseach doubt now, whatever his own views may be, that a great many of us on this side of the House feel that something very precious and very fundamental is at stake? Perhaps we are wrong. Maybe we are mistaken, but we feel that way just the same. We are not asking the Government to abandon any fundamental of their policy. We are not asking them to jettison any part of the programme they claim as the mission of their Party. We are saying just because we feel the way we do, just because you are the majority and we are the minority: "Here is the opportunity to show that this country is a real democracy."
You feel that there is no principle at stake, merely a matter of expeditiously dealing with a tricky question. We feel a most precious and fundamental principle to be involved. If you are democrats, how can you weigh your expediency against our profound conviction that something vital is here involved? If there is democracy in this House, is it not the duty of democrats in a situation such as we find ourselves in to-night to say: "If you say that a principle that really matters to you is here involved, we have nothing more substantial than convenience and we recognise at once that the scales are borne down upon your side, and because we are democrats, because we have the power to pass this Bill, or tear it up, we will say no more about it; we will let this case be tried to its judicial conclusion and we will write off any money it costs us for the very precious asset of one more case where this country has proved itself to be a true democracy"? An undoubted majority, with power ready to its hand to impose its will should acknowledge that it has a duty to forgo that will and recognise that conviction in a matter of principle in a minority, no matter how small, provided it is honest, sincere and bona fide, is of infinitely more weight than any question of expediency, no matter how large the majority that entertained it. Are these sound principles for all? Is there not here an opportunity to give them unprecedented play? I do not expect their application to be considered, but I do not like to admit to myself that an appeal to the spirit of democracy in this House has become utterly vain.
We heard to-night many expressions about the innocence of some of the people speaking in this House. Following his colleagues, Deputy Costello spoke in a manner which suggested that he had his tongue in his cheek. He pretended innocence that he did not have. I think some of his colleagues on the Opposition Front Bench might withdraw their suggestions about the innocence or otherwise of statements by leaders of this House.
I did not ever pretend, nor do I claim to be innocent.
Then we will take it that the Deputy was deliberately misrepresenting when he said that he had no knowledge of this matter until it came before this House.
I did not say anything of the sort. I said that I knew nothing about the facts of the case to enable me to determine the issue as a question of fact.
I understood the Deputy to say that he did not know anything about this case.
You were not here when I was speaking.
I heard the Deputy. I will leave it to the judgment of Deputies as to whether Deputy Costello conveyed the impression or attempted to put over the impression very glibly that he was approaching this matter with a fresh mind and that he knew absolutely nothing about it until this Bill came before the House. It is not true that the Deputy did not know anything about this particular Bill before it was brought in.
I did not know anything about this particular Bill. I said I knew nothing about the facts of the case. Will the Deputy keep to the facts and be accurate?
I am keeping to the facts. The Deputy, I think, knew a long time ago in a professional capacity the ins and outs of this particular case.
I did not.
Evidently, even though Deputy Costello was briefed in this matter some years ago, it has gone so far from his recollection—
I was not briefed in this case. I was briefed when the money was lodged in court and I said: "There is the money; we do not know to whom it belongs."
The Deputy might tell the House how long ago that is.
About 1924. Were you in your cradle then?
After all these years this matter has gone on, now we have it that the Deputy knew all about this matter.
What matter?
Deputy Moran must be allowed to continue.
He is misrepresenting me. I want it to be perfectly clear, and I think I am entitled to claim your protection, Sir, when he misrepresents what I said. I said I knew nothing about the case which is pending at the moment and I assert that again.
He attempted to convey to the House that he had not heard about this matter until it came before the House. Now he has admitted that he knew about it years ago. The Deputy has the temerity to suggest that this matter could be dealt with quickly, while his colleague, Deputy McGilligan, who also spoke on this matter, spent two days in court during the past week arguing about two solitary words, the definition of what was "ordinary residence" in this country. If Deputy McGilligan was capable of arguing for two days about two solitary words, what would Deputy McGilligan and his colleague be capable of arguing on the implications of the matters involved in this particular case?
Particularly the misunderstandings of the Deputy.
Deputy Moran must be allowed to proceed.
It is obvious that Deputy Costello is talking on this measure with his tongue in his cheek. It is obvious that he knew for years and years that this matter was hung up. It is obvious that he knew even before the writ was issued that this matter was so involved and so difficult it would be virtually impossible to deal with it from any reasonable point of view in the courts.
That is why he brought it into court!
After all this, Deputy Costello tells us that the courts have been interfered with and this matter could be well dealt with by the judiciary.
I brought it into court in order that the court should deal with it.
An Leas-Cheann Comhaire
Deputy Moran is in possession and must be allowed to speak. Will he now move to report progress?
I move to report progress.
The Dáil adjourned at 10.30 p.m. until 10.30 a.m. on Friday, 25th April, 1947.