The last Deputy's remarks were rather illuminating. The Deputy is, if I may use the word in a religious sense, a hypocrite. The original sense of that word was an actor, and I think one could say that the Deputy was not too well up in his part this morning and he did not strike me as putting his whole soul, so to speak, into the particular words he spoke. He says these funds were collected for a particular purpose and he thinks there is no better authority than this House to distribute the funds. He forgets altogether the purpose for which these funds are now to be set. The proposed object of the trust funds was never in the contemplation of those who subscribed them—I do not think there is any doubt about that. We are making a diversion to certain other objects, however laudable those may be— although that may be questioned—and we are definitely getting away from the original object of the trust.
The Deputy, who has just left the House, is also of the opinion that the Dáil represents the Irish people, is the embodiment of the people, and by a sudden jump he gets to the conclusion that the Dáil is the best body to distribute the funds. I do not know that the people, as such, had anything to do with the subscriptions to the fund; certain members of the community had. But the case cannot be made here, and it certainly has not been established, that the people who, by a majority, are carrying this measure, have any title, or claim any title, to represent those who subscribed.
The Deputy has asked whether there might not be agreement between the trustees and the subscribers. I do not know whether any agreement between the representatives of the subscribers and the trustees was ever sought. So far as I understand, the subscribers, or any remnants of them that there may be, are the last people to be thought of. We have not heard them introduced into this debate, in any event, even though the Dáil does embody the people and even though we may take it that the people as a mass include some of the greater part of those who subscribed.
The Deputy went on to make a further jump and he said that nobody could be better qualified than the Dáil to distribute the funds. I questioned that, and it has been sincerely questioned here. Any arguments we have heard in the House have been rather against the Dáil as being a properly qualified body to distribute the funds. The arguments against its qualification weigh more than the arguments, such as they are, put forward in an attempt to show that the Dáil is qualified.
One of the items one must think of in connection with qualification is not the mental character or the competence of the people here who are asked to enter on this discussion, whether they know and are sufficiently aware of the facts, whether they know about the claimants and how far they stand in the line of succession from the people who were the original trustees and, if they are, what is the case made to depose those people and set up this body which was gathered together on very many arguments and for very many considerations, but certainly without, in any election that I know of, the slightest word being said to the people that one of the tasks the Dáil would have to discharge would be the diversion of these funds from their old-time purpose to the purpose set out in this particular measure. The qualifications of the Dáil could be, and have been, challenged on many grounds. As to the pharisaical scandal that has been caused, the Deputy's effort was quite a gallant effort to make good out of what is evil in regard to what has been discussed here and evil in regard to the wider repercussions of the introduction of this measure or the arguments used in support of the measure.
Before I go back to one more effort to get this into its proper framework, there was one matter stressed here in the opening debates to which I should like to refer. It has now been withdrawn from its old-time prominence in regard to the arguments here, but it was reintroduced by Deputy Moran last night. On the question of delay, the Deputy was asked if he would state what were the reasons that affected his mind in casting his vote for the measure, seeing that this is an attempt to withdraw from the courts a particular matter with which the courts are ordinarily competent to deal. Instead of answering that point, although he threw himself into the argument as a person who could answer it, with a lot of irrelevancies we again got introduced the question of delay. He said with a rhetorical flourish: "This action has lain there for so long and might lie there"—there was this point of exaggeration—"for another 100 years". Another 100 years! It need not lie for another five weeks if the defendants would take the proper steps to bring the matter before the court and Deputy Moran knows more about that particular procedure than most of his colleagues.
No matter what track was pursued early on which did not lead to a satisfactory conclusion, the way is again open for the defendants to take the thing into their own hands and to bring it before the courts. I do not think there can be any denial of that. They can force the plaintiffs into court. Why they did not do it in the early stages, I do not know. They, no doubt, had advice in the matter—and I am certain it was good advice—and they took another course. They tried to get this action dismissed for want of prosecution. Mind you, the court, after studying all the arguments on that point, and faced with all this record delay which is supposed to have compelled the Government to introduce this Bill, decided in the end that they would not dismiss it for want of prosecution. In any event, it is certainly not for me to express an opinion counter to those offered to the defendants. All I am claiming is, as I claimed before, that defendants are not subject to such delay as a plaintiff might like to impose upon them. The case, as presented here on the first day of the Second Reading—and an attempt was made to re-establish that case by Deputy Moran last night—was that defendants are helpless in the face of adversaries of a plaintiff type who will not move. That is not the case, and I repeat that because, as I said before, it has been challenged.
The question of delay is then put out of consideration because there is no question of delay. Defendants at any time from six weeks after the pleadings and the issues were joined, had power to bring the plaintiffs to court. Why did they not do it? I can give one answer. The period occuring immediately after the close of six weeks from the end of pleadings would not be considered as sufficient time to get the action going. It was not for the defendants to say what time would be necessary or what time would be reasonable to get the action started. It was for the court to say, on an application made by the defendants, to bring the plaintiff into court. I hope my legal colleague opposite will corroborate that. I do not think it can be denied. He talked here, as the Deputy phrased it last night, as if a plaintiff could start an action and then stop his pleadings if he hopes to achieve a bargaining position and that the defendants are helpless in face of that. The Deputy must know that that is not a correct statement to make to the Dáil.
As well as not bringing the plaintiffs to court, the defendants have now, apparently, reached the point where they recognise that the plaintiffs have such a bargaining power that they are going to be paid their costs up to the date of the introduction of this measure. Why were they allowed to get to that position? Is it considered that their bargaining power is so great that they must be paid every penny of the costs they have incurred up to the date of the introduction of this Bill, because the background of that, as I tried to argue in a realistic way on Second Reading, on this section and on an earlier section, is that they have no bargaining power. In so far as bargaining power is admitted, it is an argument that they have a case.
Deputy Moran again makes a statement, which, as a general statement, might be passed over without comment but as a statement appropriate to the particular matters under discussion here was quite misleading. His attitude apparently, is that if any plaintiff enters the court with litigation and gets to the length of issuing pleadings, where there is a trust fund involved, the plaintiff, on going into court no matter how bad his case, is going to get his costs. Again I suggest that the Deputy knows that that is not so. The test is going to be whether the plaintiffs who are claiming have a bona fide claim and whether it is reasonable for them to make the fund incur the costs. Now we are asked in this House to accept this position, that these plaintiffs were bona fide. Of course if they were not bona fide they have no chance of getting their costs but it is not merely their bona fides that are in question. Deputy Moran will agree that if bona fides lapse, the right to costs goes but there has to be more than bona fides—is there a reasonable claim? Only if there is a reasonable claim will the plaintiffs get their costs, if they are defeated, out of the particular fund. Now we here are asked to say that these plaintiffs should get their costs. By doing that, the Government are asking us to say, (a) that the plaintiffs were bona fide in the prosecution of the claim and (b) that they had such a reasonable chance of success that the court would say: “We will give you your costs”. Now that argues for them the possession of a far better case than the Taoiseach otherwise presented to the House. His attitude to the House ordinarily is that they have no case and that nobody can think they have a case. They are not, he says, in the line of succession. Nobody could give them that and no body of any reasonable type could give a decision in their favour. Yet, that being his presentation of the case, to get the plaintiffs ousted from the court, he asks us to take the stand that the courts would give them their costs and we are asked to give them their costs.
The two things are incompatible. If they have no case, if their case in their representative capacity be as poor as the Taoiseach at times asserts, the Taoiseach ought to bundle these people into court without further delay and get the matter finished. Does Deputy Moran agree that on a matter like this coming before the courts in connection with a trust, the courts are not entitled to go any further than to say: "Not merely do we rule against these plaintiffs, but we have a trust fund, the old time purposes of which we think are no longer suitable in respect of payments out of the funds and we will establish a scheme for purposes as near as can be to the original purposes"? I suggest that the courts have full power to inquire into the old-time purposes—into what their reality was and their objects were—to find out whether there is any such purpose still in existence to which the moneys can be applied and, if not, to make a scheme of payments out of the trust fund for purposes as near as possible to the original purposes.
