Shall I put the question?
Sinn Féin Funds Bill, 1947—Committee Stage (Resumed).
Question again proposed: "That Section 10, as amended, stand part of the Bill".
The Taoiseach is just about to intervene to answer all Friday's debate.
The House discussed the section at great length on Friday and pleaded with the Taoiseach to answer some of the question that were then raised. The Taoiseach seemed to indicate that he would do that in his own time. I would like him, when replying to the questions that were raised on Friday, to answer this question: sub-section (1) of this section says that on the passing of this Act, all further proceedings in the pending action shall, by virtue of this section, be stayed and he makes his general case for section 10 that to take any action other than to pass this section and to take this matter entirely out of the courts, would squander money. In column 1754 of the Dáil Debates of the 11th March, dealing with the introduction of this measure, the Taoiseach says:—
"...the present Sinn Féin organisation proceeded to take action in the courts. They issued a plenary summons in which both the Attorney-General and Judge Power were cited as defendants."
Then I intervened and I said: "When was that?" and the Taoiseach said:—
"About the end of 1941. In December and January at that time there were some communications and I would say it was in January, 1942, that the plenary summons was issued. Considerable expense was incurred by the defendants in preparing the material necessary in order to deal with the case."
So that this case was taken up either at the end of 1941 or in January, 1942, and it was not until March, 1947, more than five years later, that the Taoiseach, whose point now is that this Bill is intended to prevent the wasting of money, brought in this Bill. I would ask him if he can justify the grounds which he now puts before the House for this section and for taking out of the courts a case which has been in the courts for the last five years?
Since the House last discussed this matter, the Government's specialist in misrepresentation, otherwise known as the Minister for Local Government, has apparently been unleashed for the purpose of trying to explain to a bewildered public what all this Bill is about. The Minister, on Saturday night, at a Fianna Fáil cumann made a speech on what he thought to be the merits of this Bill.
Of course, we are at present on the merits of Section 10.
But what we want to do is to find out what the real purpose of this Bill is.
No; Section 10.
I want to know what the purpose of this Bill is, and the House and the country are entitled to know what the purpose of this Bill is.
It was given on Second Reading.
We are entitled to know what is the purpose of the machinery set up in Section 10. The machinery set up in Section 10 is to prevent this case from going into the courts, the Taoiseach says, in order to avoid money being frittered away. Now, the specialist in misrepresentation throws a new light on the matter. He says that is not the purpose at all. He says the purpose of this Bill is to provide a fund out of which the victims of Black-and-Tan tyranny in this country may get some assistance. If the Minister is right in the matter, the Taoiseach has been deluding us and fooling us all the time.
Now the abusive mouth-organ of the Party is being let out to tell the country an entirely different story. He tells us that the purpose of the Bill is to provide some sum of money to relieve cases of distress among people who were victims of Black-and-Tan tyranny. Is that the purpose of the Bill? I do not believe for one minute that it is the purpose of the Bill. I think that is a subtle little subterfuge on the part of the Government in order to get themselves out of the legal difficulties involved in this matter. They probably said to themselves: "In order to kill this Bill we will pretend that the real purpose of the money is to relieve distress among people who have suffered and for whom every citizen in this country has very considerable sympathy." I suggest that the real purpose of this Bill is not to make these funds available for the victims of Black-and-Tan tyranny but to keep the Taoiseach and members of the Government out of the law courts, having regard to all the ghostly stories that may be told of the past and all the compromising political utterances that might be adduced there in all their old-time nakedness and of the embarrassment that might flow. If the Minister for Local Government is right in his assertion, I want to ask the Taoiseach if he contends with any process of reason that this country and this Legislature could not make available to-morrow, if it so desired, £1,000,000 of money for the purpose of relieving distress among victims of Black-and-Tan tyranny. Is there any difficulty in doing so if we want to do it? Have not we got an abundance of paper money to do it? Had not we a declaration here a few years ago from the present Uachtaran when he was Minister for Finance that there was an abundance of money in this country for every worth-while object. If we have an abundance of money for every worth-while object in this country, if we have sterling assets worth £400,000,000, cannot we quite easily introduce a simple Bill in this House setting aside £1,000,000 to be administered by an impartial committee among victims of Black-and-Tan tyranny or among those who suffered loss in the fight for freedom and who might not be covered by the strict interpretation of our pension code? There is no difficulty in doing that. The only difficulty I see is that the Government will not do it. It is dishonest for the Minister for Local Government—deliberately and patently dishonest—to seek to give to the country the impression that the purpose of this legislation is to make these moneys available to relieve distress among people who were victims of Black-and-Tan tyranny. That is not the purpose of the Bill at all. It is a subtle, dirty little trick. The Minister for Local Government knows perfectly well that by the time this Bill is through, and all the consequences flowing from this Bill have to be paid, there will be very little money available for those who might otherwise present a claim on this fund. Even though the sum available will probably be in the vicinity of £10,000 or less, is that the best we can give them? Does that represent the measure of our gratitude or the measure of our desire to help those who suffered? If we are going to have an honest debate on this Bill we ought to know definitely who is correct in his statement. Is the Taoiseach correct when he says it is to prevent moneys being frittered away or is it the Minister for Local Government who, apparently thinking that the Taoiseach was not making a sufficiently good job of this Bill, thought that his talents were necessary in order to clarify the position? He went on the rampage last Saturday night and delivered the type of speech which, in any well conducted country, would result in his being sent out of the Cabinet on Sunday morning. I want to try to get the basic truth as to what is the purpose behind the Bill. Is the Minister for Local Government right or is the Taoiseach right?
Neither!
As between the two, I still want to find out who approximates more to the truth. Is it the Taoiseach or is it this self-appointed and rather embarrassing assistant, the Minister for Local Government?
Before the Taoiseach intervenes, as he has undertaken to do, may I remind the House again that out of the root of this section designed to stop an action in courts many evils are already beginning to grow before our eyes? I put it to the Taoiseach that inasmuch as this Bill, from the Government's point of view, is a matter of expediency and in that it represents for us on this side of the House, belonging to all Parties, a matter of fundamental principle, in any well-ordered democracy the Government of the day, commanding an absolute majority——
The Deputy should not make that statement.
I am only asking the Taoiseach to reply and without further argument as to the merits involved yield to the point and let there be an end of this matter. I invite him to end it now in the certain knowledge that all sides of the House will combine with him to make equal provision from the Exchequer as might have been made from the remnants of this fund for whatever body of persons the survivors of the old Sinn Féin movement rightly wish to assist. Nobody in this House feels more strongly about these matters than I do. Doubtless many feel as strongly. Feeling as deeply as I do about it, I would be glad to see it disposed of on those terms. That is not because I have any reluctance to fight this matter out to the bitter end. I am ready and willing to do that. I would sooner see an end made of it now before more damage than has already been done is done.
This particular section appears to contain the real kernel of the Bill. I think it should be clear to everyone by this time that the Bill itself is what seafaring men would call "an unlucky Bill", a Bill that was conceived, I would say, in political prejudice and born with a curse on its face. Nothing but misfortune and regrettable events have followed in the wake of this particular Bill. Not the least is to have the Taoiseach, the Leader of the House, so far forgetting his position in the House and the high position he occupies as to refer to the Opposition members of the Dáil as so many "cubs".
I am not aware of having used that expression. I ask the Chair or anybody in the House if I used that expression.
I quote from column 1342 of the Official Report of the 24th of April, 1947:—
"Mr. Dillon: And we will talk after him and he will not enjoy it.
The Taoiseach: Will I not! I always enjoy the bellowing and the violence of the cubs on the opposite benches."
I did not use that expression.
What about the Official Report?
I do not care what is in the Official Report. I appeal to anybody who was present here in the House, to the Chair, to say if I used that word.
What about the Official Report?
I do not mind what is in the Official Report. I deny absolutely that I used the words. They are not the words I used. I used a Greek phrase which was misunderstood. I used a couple of words of Homer, "Poluphloisboio Thalasses", which means of the loud-resounding sea. It was misunderstood by the reporter.
That is the first I ever heard of a Greek quotation.
In the course of his political manoeuvres, the Taoiseach has repudiated many things, many of his own statements, and many of his colleagues. It now remains for him to repudiate the official records of this House.
I deny absolutely that I used these words at any time in the debate.
Is the Taoiseach accusing the official reporters——
Will the Deputy come to Section 10?
The Deputy is quoting from a speech made and recorded in connection with this Bill and the Deputy is within his rights——
Section 10.
The Deputy is pointing out what followed in the wake of this Bill and the Deputy introduced his remarks by saying that the kernel of the whole Bill was in this particular section.
He referred to a particular phrase, which he is trying to say that I used and which I know perfectly well I did not use.
Am I trying to say it? The official record has it.
The Taoiseach's word or a Deputy's word must be accepted. That is not an official document.
On a point of order. Must the Taoiseach's word or the word of any other Deputy be accepted in all matters against even the official Report of the House?
That is a general question. I was in the House when the Taoiseach was speaking. I did not hear that word, I might say. I was here at the time and I heard the Greek quotation. That is an uncorrected copy of the Official Report. If a Minister or a Deputy says that he has not been correctly reported, I take his word.
One of the misfortunes that followed this unlucky Bill is a report circulated to the effect that the Taoiseach referred to members of the Opposition as cubs.
It was incorrect.
Another misfortune which followed on this particular Bill is that for the first time in the history of this House and this State we had, through the instrumentality of this Bill, the high office of the Chief Justice of Ireland dragged in——
The Deputy might come to Section 10 which deals with taking the case out of the courts.
I am referring to the Bill and this is my first intervention.
The Deputy must come down to Section 10.
Section 10 proposes by the weight of a political majority that broke away and repudiated Sinn Féin to high-jack the Sinn Féin funds from under the very noses of the Chief Justice and other members of the Supreme Court and the instrument selected to participate in that bit of high-jacking is the Chief Justice.
The Chief Justice is not in this section. There has been a five hours' debate on the section which, I think, is enough, if not too much.
What is in this section is that on the passing of this Bill all further proceedings pending, whether before the Chief Justice or any other judge of this State, shall be quashed and that the funds which are at the moment sub judice before the courts of this country shall be taken from under the noses of the judges and passed over to a committee nominated by the Taoiseach, of which the Chief Justice is one of the instruments. That is the proposal in this section. I think it is certainly another misfortune that that should be the position we have reached. The third misfortune which followed this unlucky Bill is to have a Minister of State so far forgetting——
The Deputy must not anticipate a motion which is to come before the House to-morrow.
At the present moment we are anticipating a matter that is sub judice, a thing that was always considered entirely improper. It was never allowed by the Chair in this Assembly even to pass a remark about a case which was sub judice. All previous precedents have gone by the board and all previous rulings are completely inoperative in face of the upset that has come to a well-established precedent as to proper procedure and the propriety of Dáil action, in face of this particular section. Not anticipating any motion which comes before the House to-morrow, but merely to make a point to indicate the reason and the justification for my opening remarks, another misfortune is the fact that a Minister of State so far forgot himself when discussing this Bill outside of this House that he used a political platform, a public hall, a Fianna Fáil ceilidhe——
That has nothing to do with Section 10.
——to make an attack on the Chair and the impartial administration of the Chair. What are we proposing to do? We are proposing to take from out of the custody of the Irish courts a sum of money that is there awaiting the decision of these courts, and that proposal is made by one of the parties to, not one, but two of the three splits that reduced that organisation to what the Taoiseach now describes as a position of insignificance. It would not be so bad, it would not be so improper, and it would not be so distasteful and nationally degrading if we had a Taoiseach and a Government supported by a Party over there that did not happen to be the principal in the discreditable dog-fight or dog-fights that took place between parties and peoples 25 years ago. But imagine the quite natural resentment of any one of those parties who had been in conflict with other persons and other parties, and whose treasurers and trustees, with a sense of decency as to the proper thing to do, had consistently refused to break up the swag amongst any of the warring elements, no matter whether they were mighty or insignificant. When funds had been placed in the custody of the courts for anybody who could establish a claim to get the funds or to get their portion of the funds, was that the time for one of the principals in all those splits and dog-fights to come in by weight of a political majority and say: "I am taking over the funds to be disposed of in accordance with my decision"?
The impropriety and indecency of such a course should be apparent to the Taoiseach, seeing that he was one of the principals in all those disputes and divisions and controversies and splits. To use a democratic institution, to use a Parliamentary majority for such a purpose is steamrolling completely any of the commonly accepted principles of democracy and is certainly trampling in the dirt any ordinary standards of fair play. Is it the Taoiseach's contention that a Parliamentary majority, no matter how dumb, how disciplined or how regimented, can justify anything that is done by virtue of that majority? There was a time when it was contended that a majority had no right to do wrong. Is it now the contention that the majority has a right to do anything, has a right to trample on the courts, has a right to snatch from the courts something that is entrusted to their custody for distribution or for safeguarding? I think we have reached a point where it is not the amount of money that matters—if it was a ha'penny or a million; it is the principle of the thing.
There is neither conscience nor decency nor principle associated with the particular proposal that is made here. I do not claim by any manner of means to be a constitutional authority, but I claim as an ordinary citizen and as a plain Deputy the right to say that the Constitution of this country is a sham, a worthless sham, if it makes it possible and admissible for one rump of a political split, when it gets a majority, to wade, like a gang of gansters, even into the courts of Ireland and take from the custody of those courts the funds of that organisation, merely because others have not got a Parliamentary majority, merely because they are insignificant, merely because as a result of a split and splitters they are, comparatively speaking, powerless.
What is our constitutional remedy? To appeal to the President to submit it to the Council of State. And what is the procedure before the Council of State? To refer it to the Chief Justice to see whether it is proper or improper, constitutional or otherwise.
The Supreme Court.
The Supreme Court, headed by the Chief Justice——
Not necessarily so.
——sitting alongside justices who are invited by that particular measure to repudiate the Chief Justice. Does not even Deputy O'Connor see the impossible tangle that has been created by this particular Bill, impossible for the courts, impossible for the President, impossible for the Council of State, impossible for the insignificant persons or body that had the audacity to look to the courts of Ireland for justice, to look to the courts of Ireland for impartiality, merely to find a political body wading in to take the money and to distribute it amongst camp followers? That is the point we have reached. No wonder the Taoiseach lost his head, no wonder the Ministers lost their heads. Their heads were lost before that Bill was drafted. There is every evidence of that on the face of the Bill. I hope that even at this stage wiser counsels will prevail.
Deputy Mulcahy was accused by the Taoiseach and by his Ministers, inside and outside this House, of having been bullied by his legal colleagues into opposition to this Bill. Does the Taoiseach suggest that the legal colleagues of Deputy Mulcahy bullied other individuals and every other Party in this House? Does the Taoiseach think that the influence of those legal colleagues of the Deputy is not only able to throttle and humiliate a man of the standing and courage and character of Deputy Mulcahy, but that it is so great that they can make potboys out of an Independent Deputy like Deputy Dillon, the Leader of the Labour Party, the Leader of the Farmers' Party, the Leader of the Clann na Talmhan Party?
Will the Taoiseach get away from his jaundiced, political bias, and will he not see that here, with the exception of a regimented pack, a Party where there is no will but the will of one man, every free Deputy and every free Party in this House is disgusted and nauseated by the intentions in this particular Bill, concentrated in this particular section, and will he show himself sufficiently democratic to bow to the free will and the independent thought of the overwhelming majority of free Deputies in this Dáil?
Are we to take it that the Taoiseach has no intention of replying to anything said on this section since Thursday night last?
There seems to be very little use in making any reply. Everything that was needed to answer the points that have been raised was stated already in connection with the various sections and on the Second Reading. On the Committee Stage one can continue to repeat and repeat the arguments that have been used and, no matter how clearly the position has been stated, to go back and act as if no answer had been given.
The suggestion is that there is something extraordinary proposed in this Bill. That is not true. In several cases already the Legislature has come in to deal with matters which have been before the courts, even when they were decided by the courts, and to say even that the law was not as it was interpreted by the courts, but was deemed to have been different. One would imagine that this was the first place in which there was a question of retroactive or retrospective legislation. That is not so.
Would the Taoiseach give us the names of the others?
I will give you the names of several other Bills. I have a list of the whole lot here.
Give us one of them.
I shall give them one by one, if the Deputy waits. To start with there was the Land Act of 1926, the Deputy Registrar in Bankruptcy (Cork) Act, 1926, the Copyright Preservation Act, 1929, the Finance Act of 1929, the Courts of Justice Act, 1931, the Land Act of 1936 (in two sections) and the Accidental Fires Act of 1934.
What particular cases in the courts were affected by any of these Acts?
If the Deputy wants me to read out all these material matters——
We are dealing with the particular case in the courts in this instance.
There have been several cases in the courts in which such matters were dealt with—first of all, in which judgements were set aside and nullified, and others overruling the decision of the Supreme Court—the Stokes case of 1931, the Performing Rights Society case of 1928——
That was to prevent an appeal to the Privy Council.
Of course no one Act will be the same as another, but the fundamental principle is that the Legislature comes in and declares the law, acts as the Legislature, the body which makes the law. The courts are only interpreting the law. The courts will interpret the law as it is at the moment—at whatever moment they are taking their decision —but it is for the Legislature, having the common good and the general interest in mind, to make the law as the common good suggests it should be made.
From day to day?
At any time. This Parliament has sovereign authority to make the law except in so far as its power is limited by the Constitution. As I said, in the earlier stages, if there is anything in this Bill which is contrary to the Constitution that matter can be settled in the usual way. I am confident that there is nothing in this Bill which is in any way contrary to the Constitution. It is not unusual for the State to introduce Bills of this kind. There have been, in every book dealing with matters of this sort, instances of this kind. It is the right of the Legislature to pass retroactive legislation. The one thing which it is forbidden to do in that particular way, under the Constitution, is to declare acts to be criminal, to be crimes, to be illegal, when they were not so at the date of their commission. That is the one single obstacle that is put to retroactive legislation by this Parliament. In other Parliaments where they have no written Constitution, certain conventions have come to be regarded as governing their actions but legally they are sovereign and their acts cannot be legally questioned, as Acts of this House can be under the Constitution. There is nothing unusual then in that sense in legislation of this sort.
It is right of course that in any appropriate case a question should be raised as to whether a Bill is repugnant to the Constitution. It is desirable that on a matter on which representatives of the people in Parliament will naturally have different views such questions should be raised but, as for suggesting that there is some extraordinary question of principle involved here, that is simply not true. That objection is not based on anything sound. It has been urged that it is the highest function of democracy that we should give way to the views expressed on the Opposition side. I do think that in a deliberative Assembly if some of the people present put forward views from their side, even though these people may be split up into different Parties, consideration should be given to them but when due consideration is given to all the points raised, are we to say that if the Opposition plead principle the Party in power must necessarily to give way to them? It is very easy to plead principle but am I to be regarded as such an innocent that I must believe that every one of the arguments to which I have listened here was made in good faith? I have lived a certain length of time in this world. I have listened to arguments under a variety of circumstances and there has been more make-believe, in my opinion, in the arguments that have been put forward from the other side during the debates on this Bill than in any other matter I have had anything to do with.
That is saying something.
It does say a great deal. Democracy, as I understand it, means that the people of the country elect their representatives in representative assemblies. The idea in this Assembly is that every individual who is elected by the people stands on the same level here and that a vote on one side of the House is as good as a vote on the other side of the House, but the working of democracy is that when there is a difference of opinion and that difference comes to be resolved by a vote the majority vote should prevail. Of course, Deputies on the opposite side say that because they are split up into several Parties, their vote should count for more. I deny that. Each one counts for what he is. That is democracy. The suggestion is that because a large section of the people or a large organisation elect a majority belonging to a particular Party, the votes of the members of that Party should not be regarded as equal to the votes on the opposite side. We know that if the people on the opposite benches are split up into several Parties, it is because they have not a policy on which they could agree. If they had a common policy on which they could agree, they would be one Party. Would they suggest that if they were one Party their votes should not count as much as if they were separate? I think the whole thing is nonsense.
We know what democracy means here. We have a law-making institution, which is this House. The duty of the Oireachtas is to make the law. The duty of the courts is to interpret the laws as they are there at any particular time. They have never suggested that they should be allowed to make the laws. If at any particular time the law is not what it should be, in the common interest, then it is the duty of the Legislature to make the situation accord with what the common interest demands. You have, as I have said, the Legislature to make the laws. You have the courts—to do what? To interpret the laws as they are there at any particular time. It has never been denied by the courts, or never been held as any derogation of their position by the courts, that the Legislature should come in and exercise its proper function at any particular time. There is no interference with the courts or with the independence of the courts in that. The courts have their own proper function and they are allowed to carry out that proper function.
We have, in addition, the Executive. The Executive here is subject to the day-by-day control of Parliament. It can only exist as an Executive, if it has the support of the majority.
I have no qualms whatever about this Bill. As I said at an earlier stage, these funds were subscribed by the nation in a national struggle and the greater part of the nation subscribed to them. When the divisions came, they were put into the courts and they have remained in the courts for the past 23 years. A situation arose, as I have already informed the Dáil, in which the treasurers had died and in which the representative of the last treasurer came with a proposition that these funds should no longer be allowed to remain there. I indicated willingness to deal with them by legislation, as was suggested, and it was only when the Legislature, so far as the Executive part of it is concerned, was seized of this particular matter, that an attempt was made to block it through the courts. Are we to have the position in the future that, when the Legislature is about to deal with any matter which may affect the rights— and nearly all legislation does affect rights of one kind or another—of individuals or sections of the community, the Legislature can be brought to a standstill by the simple process of somebody affected running to the courts and trying to put in an action there? When it became known that the Executive was about to bring this matter before Parliament, the courts were used in this particular way.
The question then was: should we go ahead? I thought that perhaps the matter would be tried quickly and that, if the expenses were not going to be very great, that was perhaps the best way to deal with it, but the years began to pass and then the defendants, the Attorney-General and Judge Wyse Power, pressed for a hearing of the case and took legal steps to bring it about and then we had other actions taking place. It was suggested here that we should have intervened. We could not very well have intervened to get a date set down for hearing, so long as this other side issue was being tried, and the trouble with all these cases is that motion after motion can be brought in to delay and cause extra expense. It is not merely the plaintiffs who undergo expense in this case. Those who are defending the funds have to incur expense also, and, if they really mean to defend the funds, they have to take every possible care to make sure that the people who, in their opinion, are not entitled to them should not get them, and, consequently, you have expense after expense piled up.
I must say that when I asked what expenses had been incurred, I was shocked, as members of the House have been shocked, by the figures given to me. I did not ask that anybody should exaggerate or give me an exorbitant account as to the sums spent, but I saw that a position would be reached in which we were going to have the old situation, in which the amount which those who succeeded in a litigation for those funds would get would be trifling, because the moneys would, in the meantime, have been lost in legal costs, no matter which side judgment was given for. On the previous day I said that if this case went for hearing it was a case which was likely to last for three or four weeks, inasmuch as the proving of continuity or whatever else might be in it would have involved going through the history, in a sense, of the past 20 or 25 years, and that the expenses up to the present would be doubled by the time the hearing was over; that there was then almost certain to be an appeal and that the appeal would cost about an equal sum, with the result that, by the time that process of law had been completed, about £20,000 out of the £24,000 would have been spent.
I felt that it would be a shame that moneys subscribed originally in the way in which these moneys were subscribed should be dissipated in that manner and it was for that reason that I said: "Very well; we have waited long enough". If we are to have cases like these which were being brought forward, where a solicitor held on to the papers which the other side wanted and there were then to be motions, if we were to have that sort of thing continuing with the variety of side issues and motions that could be raised, it was better to cut our losses at that stage and take action. That is what is done here. We have decided that the losses should be cut at the particular stage at which we have arrived, that no further expense should be allowed and that in order to see that that would be made effective, the case should be decided here by the Legislature.
I believe, as I said at the start, in view of the way in which these public funds were subscribed, by subscribers all over the country in very large numbers, many of whom have died, that the original subscribers cannot be appealed to in the ordinary way. If we had a long list of the subscribers of the particular sums, what would naturally be said is: "All right; the people who subscribed this money may not, in present circumstances, desire the moneys they subscribed to be used in a way quite different from that for which they were subscribed originally" and a decision could be taken to give the money back to them. It is quite obvious that the money could not be given back and therefore this body, as representing, in the main, the majority of the Irish people, should say what should be done with the funds.
It was suggested by one speaker that we were capturing these moneys and using them for our own purpose. There is no truth whatever in that. There is no truth in any suggestion that our political Party is capturing the money. The money, which was subscribed for national purposes, is being used for a national purpose, and can be so used, only if this law is passed. It will be suggested that because we happen to be the majority in the House, we are doing so and so. I cannot help misrepresentations. If most of us, in the course of our lives, were deterred from doing something we thought right because it was going to be misrepresented, many a proper thing would be left undone. There has been misrepresentation both of our purpose and of what it is proposed to do. To my mind, any shame in that is on those who make these misrepresentations. If the courts have been brought in here in any way which is derogatory to them, then that is not the fault of the Bill. It is the fault of those who used an occasion like this for such a purpose. That could happen in the case of any Bill in which it was proposed that a member of the judiciary should act in any capacity in accordance with the provisions of the measure. Henceforth, it will be very difficult to ask a member of the judiciary to accept any position except such as he is compelled to accept by law or by his office. Up to the present, it was of great value to this Assembly to be able to ask an individual who might, by common consent, be regarded as impartial to act on any board which was being set up in any capacity in which impartiality was obviously valuable. We have had judges brought into Bills in one way or another in the past. We had that accepted in the sense in which it was proposed. It will be extremely difficult in future to ask a judge to do anything of that sort, because he will naturally ask himself whether, under one pretext or another, his office or his views will be brought up in this House and discussed.
As I have said, democracy is working and will work here so long as we regard each person in this Assembly, elected by the Irish people, as having the same weight when it comes to a vote. There is no other way of dealing with the matter. I am not going to admit that, if somebody on the other side claims that this is a matter of principle for him, we should give way. As the matter has arisen here, the right of the Legislature to act in a matter of this kind is, in the opposite direction, as much a matter of principle —more important, in my opinion. I have been asked the details of a number of cases. I have read them, but it would take a considerable time to deal with each case. I have the summaries here, but I have not memorised them. I have satisfied myself, in going through them, that they were examples of cases in which the Legislature did not hesitate to come in and declare the law to be different from that which the courts had declared it to be and to provide that it should be deemed to have been different. The Legislature also provided that the aid which was sought by litigants should not be given to them and that the rights which they were deemed to have possessed should be declared not to exist or to have existed. That is all that is contained in this measure. Therefore, it is not novel. Where you have retroactive or retrospective legislation, you have, of course, a different set of circumstances in each case. We are not likely to have a case exactly the same as the case we have here but, fundamentally, the principle would be the same—that the law can be declared by the Legislature whether a matter is to come before the courts, is in the courts or has been decided by the courts.
An Leas-Cheann Comhairle took the Chair.
The Taoiseach has purported to give a number of examples of precedents——
I was asked for the names and I gave them.
I said the Taoiseach purported to give them. No analogy, precedent or example can be given. The Taoiseach did not deal with Section 10. Section 10 proposes to do what no Act proposed to do up to the present—take a case out of the courts, refuse to allow the courts to come to a decision and transfer the case from the courts to this House for decision.
The Deputy's own county was deeply interested in a case which was taken from the courts. What about the Erasmus Smith case? Was that taken from the court?
If I cannot convince the Taoiseach, I have no hope of convincing Deputy Walsh.
The facts are there.
All the parties were agreeable in that case.
I should like to hear a lawyer of the standing of Deputy O'Connor try to justify the action being taken in this case. I should be interested to hear Deputy O'Connor speak as a lawyer on this matter, as he is very competent to do.
It might help the Deputy if I were to read a note——
The Taoiseach will have plenty of time to read it. I want the Taoiseach to read a note of a Bill which transferred a case from the courts on the ground that this House should be the deciding body and which provided that the decision of this House should be given effect by a committee handpicked by the Taoiseach. There is no precedent for that. I need not go back over the records or go down to the Library to look that matter up. I defy Deputy O'Connor, Deputy Walsh and the Taoiseach to produce here any Act passed by this House since it was established which took a case out of the courts to be decided, as the Taoiseach said, on the merits, by the Legislature, effect to be given to that decision by a committee handpicked by the Taoiseach. There is no precedent for that.
The Erasmus Smith case.
That is not a precedent. I know something about that case.
I know all about it.
I hope that the Deputy will tell us all about it. There is the fundamental difference that every Party in this House had a common viewpoint on that case. It is completely different.
It is a precedent for the Government taking out of the courts a case which was before them.
I shall not say any more about that. The Taoiseach told us, for the first time, that, when the Legislature contemplated bringing in legislation, action was taken in the courts to block the proposed legislation——
I mentioned the Executive as the means by which the Legislature is informed——
I hope we are not going to have any more Greek phrases. The Taoiseach said that this action was brought in the courts to block the Legislature. How many years ago? In 1941. It has been allowed to stew for six years. What we have not been told is why the courts cannot be allowed to determine this. Why cannot it be left to the courts? What is extraordinary about this case that the courts cannot decide it? Are the courts not deciding every day in the week more important cases?
The Deputy might ask Deputy Mulcahy about that.
I have a few questions to ask myself.
Does the Taoiseach seriously suggest that this House will deal with it in a more impartial way than the courts? Does the Taoiseach suggest that the committee which will be handpicked by the Government will disburse the funds having regard only to the degree of destitution and misery of those to whom these funds are proposed to be disbursed?
I believe so, so far as they may know the facts or be able to get them.
Like the Taoiseach, some of us have lived a long time and, like the Taoiseach, we are not as innocent as to accept all that. We have had too many evidences to the contrary, in relation to matters of far greater importance, even than this or what is at stake. The Taoiseach, through the course of his speech, in a much more subtle way, of course, than his Minister performing on Saturday night, tried to allege that it was the Opposition who were bringing the courts into disrepute. The Taoiseach said that it was not the first time judges have been brought into Bills. No judge has ever been brought into a Bill before in a capacity similar to the one in which the Chief Justice is brought in now. Judges—and the Chief Justice, perhaps, on occasion, and though personally I cannot remember a case, that does not mean it has not happened— have been brought in on more than one occasion to preside over committees. We have had very recent examples of that, but not in relation to anything such as we now have before us.
I tried to look on this as an ordinary layman. As any plain man, I want to know why the case cannot be determined by the courts, why the courts cannot be allowed to hear the facts stated by both sides and determine to whom the money belongs or what is to be done with it. This House is to decide. Every argument which the Taoiseach used in the course of the statement he has made just now, in relation to this particular matter, can be used to take any case out of the courts. He asserted here the principle that the Legislature has the right from day to day to take any case out.
If the public good demands it.
Yes. I am not suggesting that they have not the best right; but the public good is to be determined, not by the impartial courts but by the Party which for the moment has a majority of one or 51.
By the Dáil, the elected representatives of the people.
Or, as it is in actual practice, by one person. I am not saying for a moment that you can have any machinery other than that it must be determined by a majority of the Dáil. I am not suggesting there should be, or that there is, but I am suggesting that it is a very dangerous thing to lay down and assert that the Legislature can interfere with the courts of justice of this country from day to day, at any time it pleases and on any matter it pleases and upon any case it pleases. That is what is preached by the Taoiseach to-day.
When the public good requires it.
I wonder if there is any lawyer on this or on the other side who will subscribe to that.
It is a fundamental truth, whether they subscribe to it or not.
He has looked into his own heart.
That is the whole trouble. I suppose we would not be discussing this matter at all, if the Taoiseach were not the sort of person who, when he convinces himself that a thing is right, assumes that everybody else is of the same opinion and must be so. That is the whole trouble. That is the reason why we have this thing before us. We have it now stated here, in plain, blunt language and laid down flatly, that the courts are no longer independent and free.
Nonsense.
The courts are to be there so long as the majority of the day in this Parliament will leave them there. Judges can function in the courts on the existing law so long as they are allowed to function by the Government of the day. That is what the Taoiseach laid down, whether or not he appreciated—I am sure he did—the full meaning of what he was laying down. Who can say that the courts are free, who can rely on the law of the land, if it is laid down here that whatever Government—whether it is Fianna Fáil, Farmers, Labour or Fine Gael—happens to be sitting over there with a majority of one or 51——
They can make the law.
Of course, they can make the law. That is what we are here for. The point is that they can stop the law——
The courts will have to take the law as laid down by the Legislature.
——that is the point and the Taoiseach knows it and he is butting in now, trying to put me off the point, but I am not going to be put off. The Taoiseach is laying down here that the courts will do what he tells them to do, or what his successor tells them to do.
The courts will do what the law tells them to do.
This Bill is to prevent the courts working the law.
And why? Because the Taoiseach says: "I believe that, in particular, I have a personal duty".
Apart from that, on the first sub-section of this section, the object of this Bill is to deny to the courts the right to administer the law of the land as it is to-day, to take this case away from the courts. I am not concerned with the merits of this case and I do not care whether it is 8d. or £8,000,000 that is at stake. I am not concerned very much as to who receives the money but I am concerned that this principle which is now being applied to the Sinn Féin organisation or what is left of it can be applied to-morrow morning to any individual citizen or to any group of citizens, whether they are a trade union, a trade association, a farmers' association or any other association of citizens which may feel obliged to go to the courts to have their rights asserted. That is now laid down by the Taoiseach as fundamental truth. If the constitutional position is as the Taoiseach now tells us it is, then his Constitution, so far as the citizens' rights are concerned, is not worth the paper it is written upon. Is not the only protection the ordinary plain citizen or group of citizens has, in this or in any other country, against the Executive of the day, the courts of the land?
In the way the Deputy is putting it, it is absurd.
I am putting it that the only protection the ordinary citizen or group of citizens has against the Executive of the day is the courts.
That is not so.
What other protection have they?
The point is that Parliament, under the Constitution, is supreme, and it can at any time pass a law. Every Deputy should try to get that into his head.
The Taoiseach wants to get the Parliament, the Executive and the judiciary—the trinity—into his own hands. There is a Parliament there, there is an Executive and there is the judiciary. What is the judiciary for, primarily, except to see that justice is done as between citizen and citizen, to protect a citizen or group of citizens, if necessary, from either the Executive or the Parliament? I am no lawyer, constitutional or otherwise. I am an ordinary citizen.
You cannot protect the citizen except in so far as Parliament protects him, and the Parliament is supreme.
If the Constitution for which the Taoiseach was primarily responsible is not able to guarantee the fundamental rights of the citizen, then it is not worth the paper it is written on. If, in spite of that Constitution, any Executive that happens to have a bare majority in this House can, at any time, come in and take any case out of the courts and prevent judges in any court in this State from administering the law as they find it, where is the protection?
The point is that when a judge pronounces judgement, he declares the law to be what it is at the moment, not what it was before or may be after.
And you are taking care he will not be allowed to decide that.
Decide what? It is not the courts but this House that makes the law, and this Legislature has full competence to do that.
This House is not a judicial assembly to interpret the law.
It makes the law.
There is a body for making the law.
And this is it.
The Taoiseach's point is that we must make the law and interpret it.
No. You are making the law. That is what this Bill is for —to make the law.
You are making a law that is going to allow a judge to determine, under another law, the justice of a particular case. The Taoiseach is trying to turn this Chamber not merely into a Legislature but into a court. It is a Legislature, but it is not a court nor is it intended to be. I am making the point that this is a matter that affects every citizen and every group of citizens. What is being done to-day in relation to Mrs. Buckley, "Sceilg" and others can be done to-morrow in relation to any citizen or group of citizens, by a majority of the House. That is a sad state of affairs.
The Taoiseach went on to another point which he very often resorts to when he is not too sure of his ground or too comfortable. He gave us a little lecture on democracy. He stated that we all stand equal in this House and that democracy will survive as long as we have equal rights in the House—each and every member of it. Did he hear his first lieutenant on Friday last tell one of the oldest members of the House, a man who has been elected and re-elected over and over again for one of the principal constituencies in the country, that he had cheek even to mention one word about these funds or the organisation that is claiming them? This is not a matter of the Sinn Féin funds. It goes far beyond that. The principle that is at stake is far greater. I do not know what the Taoiseach's reasons are, and I am not concerned with them—whether it is that he does not want to go into court or stay out of it. That has nothing to do with it or should have nothing to do with it. The net point for this House is whether or not we are not embarking on a most dangerous principle, and that is interfering with the courts in administering the law of the land.
Where is Deputy O'Connor? He quoted the Erasmus Smith case. I sent out for the Eramus Smith Act, and when he saw it come in he shot out. Why? Because he knew what was in it. This Bill says to Mrs. Buckley: "Get out of the court". Mrs. Buckley says: "I do not want to go, I want my judgement". This Bill says to Mrs. Buckley: "Well, you shall not have it". This Bill says to the Supreme Court and to the High Court of this country that when the Attorney-General shall apply ex parte to the court it shall make an order dismissing the pending action without costs. What does the Erasmus Smith Act say? It says:—
"And whereas with a view to setting such doubts at rest the said governors instituted an action against the Attorney-General of Saorstát Éireann by summons dated the 12th day of November, 1929;
And whereas the said governors appealed from the judgement and order of the High Court of Justice in the said action;
And whereas at the date of the consent hereinafter mentioned"——
Where is Mrs. Buckley's consent?
——"the said appeal from the judgment and order of the High Court in the said action was pending in the Supreme Court;
And whereas on the 12th day of June, 1937, a consent in the said action was entered into between the said governors and the Attorney-General of Saorstát Éireann setting forth the agreement arrived at between the said governors and the Attorney-General of Saorstát Éireann with a view to ending the said litigation, saving further expenditure, and providing for the application and future administration of the said endowments;
And whereas by an order of the Supreme Court made in the said action dated the 23rd day of June, 1937, the court on reading the said consent ordered that the hearing of the said appeal and all further proceedings be stayed"——
not on the ex parte application of the Attorney-General supported by an Act of this House and nothing else, but on reading the consent. Is it any wonder that Deputy O'Connor shot out of the House as the Erasmus Smith Act came in? Deputy O'Connor is an officer of the High Court of this country. By virtue of his membership of the solicitors' profession he is himself, in a sense, an officer of this very court which, for the purposes of his own political Party, he chooses to traduce by saying that the procedure in the Erasmus Smith Act is identical with the monstrous, shameful and outrageous proposal contained in the Sinn Féin Funds Bill. Every evil that is in this disgusting Bill was anticipated and provided against in the procedure adopted in the Erasmus Smith Act.
"Whereas by an order of the Supreme Court made in the said action dated the 23rd day of June, 1937, the court on reading the said consent ordered that the hearing of the said appeal and all further proceedings be stayed;
And whereas it is expedient to empower the said Governors to carry into effect the agreement contained in the said consent, and to set at rest all doubts with regard to the administration of the said endowments, and to provide for the future administration thereof;
And whereas the purposes afore-said cannot be effected without the authority of the Oireachtas;
Be it therefore enacted by the Oireachtas."
What hateful thing is there in Fianna Fáil, that once a man joins that Party, all the standards common to the profession to which he belongs, or to the job he ordinarily does, seem to go by the board and if he is summoned to the fray, everything must be jettisoned and cast overboard in order to back up whatever the machine proposes to do? Deputy O'Connor is back now. I trust he will read the Erasmus Smith Act which I read out for him. He was deeply involved in the Erasmus Smith litigation on behalf of one of the parties that believed itself to be a beneficiary under the trust. Here is Deputy Walsh, a Sinn Féiner of 40 years' standing, certifying to the House that the executive of Sinn Féin is still in existence, to his knowledge.
What remained of it.
Yes.
A skeleton.
Yes. The few that remained faithful are still there, he says.
A skeleton.
But both of them will trot into the Lobby when the whip cracks to vote for the exact opposite to what on their testimony they have established in this House. Why is that?
I should like the Taoiseach to give us a list of the cases on which he relies. He relies upon Leatham and Quinn. What is the fact in that case? Is not Leatham and Quinn the case where Oireachtas Éireann stopped the proceedings when the appellants sought to go to the Privy Council?
No. Quinn v. Stoke, I think, I mentioned.
Was it the Performing Rights case?
No.
I know there was one case. If he will give us the list of them we will check them. By the mercy of God's Providence I was in the House when the Erasmus Smith case was going through and I can nail Deputy O'Connor's ear to the post by memory.
I have not finished with that yet.
But, when we come to another case—Leatham and Quinn, I think it was—in which the Legislature did stop proceedings, what were the circumstances there? Under an international agreement between this country and Great Britain, Great Britain maintained the thesis that every subject of this State had a right to have decisions of our Supreme Court reviewed by the British Privy Council. The Irish Government held that that was not the correct interpretation of the international agreement and that we entered into that agreement with the British Government on the understanding that no citizen of this State had the right to go beyond our Supreme Court. Our Government may have been right, our Government may have been wrong, but that is what they believed and they said before allcomers: "Believing that to be so, we intend to give effect to that and if anyone tries to go beyond the decision of the Supreme Court, we will pass legislation declaring the law to be what the Supreme Court says it is, no matter what they declare, whether we like it or dislike it, for the purpose of preventing persons, in effect, bringing the Supreme Court of Ireland before the British Privy Council. We shall protect the Supreme Court with the necessary legislation to make that operation both expensive and ineffective on the people who do it."
What analogy is there between that procedure and this? Produce the rest of your cases and I defy you to find the case—I defy you to find any case in any civilised community which acknowledges an independent judiciary—in which a citizen of the State goes into court to claim her right under the law and where the Executive claims the right to reach into the court, take her by the throat and throw her out and say: "Whatever your rights are, you are not going to get them because we are going to make up our minds what we would like you to get and we are going to change the law and until we have time to change the law we are going to prevent you proceeding under it and if you do proceed under it in our despite, while we are changing the law, we fix you with notice that we will take from you your decision."
There is a category of cases in existence in which this can happen—it commonly happens in connection with Finance Acts. We pass a section of a Finance Act which we believe to do a certain thing. It is worth somebody's while to brief high-power attorneys and high-power barristers and they succeed in punching a hole in our Finance Act in the court and getting a verdict for their own benefit which we did not believe the law as we made it would allow. The moment that verdict is handed down, 10,000 people start actions and it is quite a common practice in that state to say: "The man who has got his verdict shall retain it; he is entitled to it; but we fix all others with notice that if the way in which we drafted the law begot that verdict from the courts, we will redraft the law because we did not mean it to mean that when we passed it. We will not step into the court while the citizen is in there looking for his statutory rights and stop the proceedings of the court for fear the court would decide in a way we did not want them to decide, but we fix all other citizens with notice that, if the verdict goes against us, it is not because there was any doubt in the mind of the Legislature; it was because there was a doubt in the mind of the Parliamentary draftsman and it was a doubt that our best assistance has been unable to remove, but, now that we know what words they were that gave the judiciary an impression different from that which we wished to make upon their mind, we will change those words". In that sense you prevent the other 10,000 who have instituted proceedings benefiting themselves by the loop-hole created by the first litigant. But surely no rational Deputy will draw an analogy between that and a person who goes in to seek the relief that Mrs. Buckley seeks at the present time.
The Taoiseach sometimes throws a searchlight upon this famous heart of his into which, from time to time, he looks with such catastrophic consequences. Carried away on the tide of his own vehemence to-day, he said: "That is what we have to do now, to make a law." There is the very root and essence of his sinning. It is no part of the function of this Legislature to make a law. Our duty as the Legislature of a democratic State is to make the law, the law for all the people, not a law for one man and another law for another man. The very essence of freedom is that the Taoiseach and the dustman live under the same law and that there will not be a law for the Taoiseach, a law for Deputy Dillon, a law for Mrs. Buckley and a law for somebody else. The day this House accepts the proposition that our duty is to make a law, for Mrs. Buckley or for anyone else, then we accept the principle that all men are not equal before the law and, when we accept that, we accept the principle that individual liberty and justice and freedom have perished in this land. Does the Taoiseach challenge that proposition?
I do.
Does he think it right that we should make a law for Mrs. Buckley or does he think that our task is to make the law which should apply to every man? The Taoiseach admits that when the scheme was first put before him his reaction was to say:—
"This smells a bit. I do not like it."
He told us so to-day. He said:—
"When this first was brought to my attention I thought if the expense was not too high the court action was the best method and that the best way to dispose of this business would be to let it go to judgement."
What was it about this procedure that he did not like? Why did he think the best method was to let it go to judgment? He is not the kind of person who makes snap judgements. He is not the kind of person who rushes into decisions. He had plenty of time to think this thing out and his own testimony is that when this plan was first proposed it smelled a bit. He did not like it. He thought the best method was to let it go to judgement. Why? If he bared this bleeding heart of his we might find common ground altogether in this capacious Chamber. Buried therein is the deep conviction that this whole procedure smells a little, but with sufficient oratorical perfume he hopes to get it through. He is mistaken. That kind of smell that he got when this proposal was first made to him is penetrating and enduring. We may sprinkle it with all the perfume you please, we may hold as many plebiscites as you like, we may get 90 per cent. majorities and public demonstrations but when people begin to assassinate liberty the instrument whereby they stop that operation smells a little, but penetratingly. The Taoiseach's first instinct was right. His nostrils did not deceive him and I do not believe that they deceive him now. He knows it smells a little of corruption—the corruption born of liberty dying. The Taoiseach is trying to force more than one person in the House into the assertion that he has designs on this money, for himself, his Party or whatever else you please. Let us go on record about that at once. I do not believe the Taoiseach has designs on this money for himself, for his Party, for his friends, or for anybody else but he just wants to get the best of Mrs. Buckley. He is just determined that Mrs. Buckley is not going to bring him down and cross-examine him in the courts, and scandalise him, and ask him about what he said in 1924 and 1926, and make a hames of him. That is what all this is about.
I was amused to hear the Taoiseach tell the House how the necessity for this Bill arose. Here was the insoluble problem! The people who had subscribed to the fund could not be found. Many of them were dead. The primary purpose of the fund was no longer there to be served. What were we to do? How out of this dilemma except by a Bill? I saw Deputy O'Connor shift uneasily in his seat. His years of studentship in the Incorporated Law Society and of practice thereafter had taught him to know that the poor, rigid, incompetent old courts of law had evolved a procedure for just that contingency so long ago that the judges were still talking French. That difficulty arose 800 years ago, when some old dafty left money for a preposterous purpose, on trust, and the preposterous purpose shortly afterwards ceased to exist and the old dafty was in Heaven and could not be reached, and somebody said: what are we going to do? We cannot ask the old dafty what she wants done with the money now, and the poodle for whose maintenance she left the money is dead and buried. What now to do?
Give it to a watch dog.
I do not know what he means.
You have not read the Sunday Independent lately
I do not know what the man is talking about.
He does not know himself.
I do not think he does, but any time he cares to enlighten me I shall be glad. The courts of equity of that day said to themselves: "This is a situation which is likely to occur from time to time and it is a situation in which we shall have to devise a method which will be equitable and just," and they evolved the doctrine of cy pres. That doctrine has grown into a formidable body of law the existence of which is fully recognised by the Statute which created the Commissioner of Charitable Donations and Bequests who, not infrequently, has to direct the attention of the courts to the existence of such a fund, and the courts have to be asked in that situation what is to be done with the money. In such circumstances, the courts will consider all relevant matters, prepare a scheme, and, subject to objections that interested parties or parties who think they are interested, can make, after a given time, they finally settle the scheme and the trust moneys are diverted to the new purpose. It is nothing new. It is as old as the law. But it was not invoked in this case, because Mrs. Buckley might have gone after the Taoiseach and she was not going to be let.
The Taoiseach returns gaily to the proposition that in the last analysis in a democratic country the will of the majority must prevail. Agreed. The Taoiseach forbore, with his accustomed delicacy, from referring to the fact that his Party constitutes an absolute majority of this House. I declare it does. What is more, he stands at the head to-day of the most freely elected Government in Europe. There is not a Government in all Europe with a better title to function as the Executive of the State in which it acts as the Government of this country. We will give him all that. But he deliberately avoids one matter in that connection to which I sought to draw his attention. I said again and again, even to the disedification of the Ceann Comhairle, that where the Government side of the House stand on principle and the Opposition stand on theirs, I entirely agree that the Government side of the House should prevail. It is the only solution when both sides have had their say. But, suppose the Government themselves say and believe that there is no question of principle involved, that their Bill is founded merely on a desire to devise expedient machinery to give effect to a purpose about which there is no dispute in principle and suppose the Opposition say, even wrong-headedly, but bona fide and honestly that for them——
If the Deputy will tell me how we will just be able to get at that then I will be prepared to consider it. Am I to be accused by every speaker of doing things and not acting fairly, hiding my sentiments and so on, and are the Deputies who make these charges to be judged by me as saying what they mean?
What does the Taoiseach want? Does he want me to stand on the floor and spin round like a teetotum in order to carry conviction to his heart? If he believes that I have been trying to pull his leg for the past two days, he is just playing. I have a heavy cold and I am speaking under great difficulty. I am doing it because I am deeply concerned. The Chief Justice is a man for whom I have the warmest affection and I wish to think that I enjoyed his friendship. I have never discharged any more detestable and painful duty in my life than to be the means of involving him in a controversy of this kind. I do not want to express the slightest regret for having done it. I would do it again if I had to. But why does the Taoiseach doubt that this could be a matter of principle to me or think that I would want to cause people pain?
I have heard the Deputy too often in this House.
My submission is that where he is satisfied in his mind that we, a minority, stand on principle and that no principle is involved for the majority, it is the essence of any democracy for the majority to say: "We gladly give way". But, where we are arguing about the way, whether it is the most expedient way to do the thing, and the Government have a way of their own, the Government need not give way. That is a fair rule. That is, I suggest, the only rule which it is desirable for a democratic Parliament to pursue. I have pressed that as far as I can. To tell the truth, I think about as much has been said on this Bill, certainly by some of us, as could be usefully said. On the Fifth Stage, there will be something more to be said and in the Supreme Court I trust the matter will be tested and our instinct in this matter vindicated by the judiciary. For everybody's sake, I would much sooner see this Bill dropped and the method advocated by me for the solution of this problem adopted. It does not seem likely that that will happen now. I assert that that is the right thing to do. I am certain that it will be a blessing from every point of view. I am certain that it will avoid occasions where a man like Deputy O'Connor, himself an officer of the High Court, comes in here and tries to persuade his colleagues that there is an identical principle underlying the Erasmus Smith Act, where there was an agreement between the trustees and the Attorney-General and where the agreement was——
Why did the case come to court if there was an agreement?
The agreement was brought into court.
I will read it again.
Has not the Deputy gone over all that?
It is denied.
There was a contest between three groups of parties.
What happened?
"Whereas with a view to setting such doubt at rest the said governors instituted an action against the Attorney-General of Saorstát Éireann by summons dated 12th day of November, 1929;
And whereas the said governors appealed from the judgment and order of the High Court of Justice in the said action..."
The Deputy has already quoted that.
"And whereas at the date of the consent hereinafter mentioned..."
The Deputy already quoted that.
I did not make much impression on the attorney because the minute I got the book he went out of the House.
I should like to say that it was not because of Deputy Dillon that I went out of the House.
I hope the Deputy has come back furnished with a copy of the statute. If he has not, I will oblige him.
Everybody knows what happened. It was to save the funds from being lost.
Was there not a consent?
I said so.
Where is Mrs. Buckley's consent?
I will deal with that.
Deputy O'Connor apparently thinks it is the same.
He did. That is what he said.
I am satisfied about it.
That there is consent? Surely you cannot believe that?
Does Deputy O'Connor believe it?
Deputy O'Connor has said what he intends to say.
Will Deputy Dillon address the Chair?
I am trying to find out where Mrs. Buckley's consent is contained in this Bill. I have argued that it is strange that Deputy Moran and Deputy O'Connor, both officers of the High Court, inasmuch as they are solicitors of the High Court and members of that great profession, should come in here and tell their non-professional colleagues that there is an identical principle underlying the Erasmus Smith Act and this Bill, when to demonstration there is not. I invite Deputy O'Connor to get up and rebut that. I will sit and listen to him.
That will be a new procedure.
I will make way for Deputy O'Connor.
My reason for mentioning the Erasmus Smith case was because there was a certain similarity in the circumstances.
A certain similarity?
In the Erasmus Smith case there was pending litigation in regard to certain funds and it was feared that if that litigation were continued the entire funds might be wasted in legal costs and this House passed an Act to settle the issues.
It did not.
To that extent there is a similarity in this case.
It did not pass an Act to settle the issues. It gave legislative approval to an agreement.
I wonder am I making this speech, or is it Deputy McGilligan?
You are not stating the facts.
Deputy O'Connor should be allowed to continue his speech.
The object of this section—I believe it is Section 10 we are still discussing——
It is.
——is to stop court proceedings in the present action that the moneys may be made available for the benefit of the men who took part in the War of Independence, and their dependents.
Read the Bill.
Perhaps Deputy Dillon would prefer if that object were changed to provide for the men who fought for another country instead of their own.
Might I draw the Deputy's attention to the fact that the moneys to be distributed do not come under this section?
There were references to this House interfering with the courts and the suggestion was made that if any Bill is brought into this House relating to a decision of the courts, the House is overruling the courts. I have heard that suggestion made here many times.
You did not
I would like to remind Deputy Mulcahy of a very courageous step he took in 1928, when there was a decision given in the Circuit Court in regard to the Local Authorities Mutual Assurance Act. That decision was against the public interest and within a very short space of time Deputy Mulcahy introduced a Bill into this House which, in effect, set that decision aside because it was in the public interest to do so.
He did not do that.
There was a rather interesting debate on that:—
"Mr. Fahy: ... Of course, the purpose of it, I presume, is to reverse Judge Davitt's decision.
An Ceann Comhairle: I do not like that phrase. The purpose of it is to alter the law for the purpose of future decisions.
Mr. Fahy: It amounts to the same thing."
Hear, hear—future decisions.
Not to set aside.
The debate proceeded:—
"An Ceann Comhairle: No; there is a very important distinction. We make laws; the judges interpret them. If the interpretation does not meet the intentions of the Oireachtas, the Oireachtas can change the law."
Hear, hear; a sound statement.
That disposes of the statements to the effect that we are trying to interfere, to intimidate or overawe the courts.
Do you believe that?
Deputy Dillon referred to the doctrine of cy prés. I must confess that I had almost forgotten it, but I have some recollection that it applies only in this way, that where there is a general charitable intention and also a particular intention and that the particular intention cannot be carried out, the courts will settle a scheme. I do not think that has any application to the funds which are the subject of this Bill.
Why not?
It is my opinion that if this litigation is continued the State would become the owner of the property, but before that there would be very heavy inroads into it by the costs of the litigation. I could give Deputy Dillon precedents where that happened in circumstances of a similar nature to this, but I do not like to waste the time of the House speaking on legal matters.
You are very prudent.
I will give the Deputy the references if he wishes, but I do not think he wishes it. I think Deputy Dillon is quite pleased because this gives him an opportunity of emitting that poisonous political propaganda of which we have had so much in recent years. I consider the section should be passed. It is for the benefit of the country that the litigation should be stopped so that the funds may be available for the purpose stated in the Bill.
Less £8,000.
The gentlemen on the opposite benches have been complaining all day of misrepresentation from this side of the House on the issues involved in this measure, and Deputy O'Connor and others have stood up to confuse the issues still further by introducing a number of irrelevancies. The Taoiseach to-day misrepresented the law, the constitutional law in relation to this whole issue, and I want to direct his attention to the fundamental rights of the citizen, guaranteed to him under the Constitution. Article 40 (1) states:
"All citizens shall, as human persons, be held equal before the law."
Article 40 (3) says:
"The State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizens."
Article 40 (3) also says:
"The State shall, in particular, by its laws protect as best it may from unjust attack, and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen."
I hold that these matters are in issue and are brought directly into issue by the introduction of this measure.
The House is dealing with a particular section.
I am dealing with the section, which endeavours to set aside the personal right of every citizen to have direct access to the courts in any matter in which he feels that he has a right cause of action. I am here to defend that right and that right only. I am not concerned, as I said on Friday last, with the merits of the action, with the facts in issue in the case before the courts relating to the Sinn Féin funds; I am concerned solely with the right of the citizen, or any group of citizens who feel they have a grievance and who seek in ventilating it to have access to the courts. That is the fundamental issue and the basic principle that we have been discussing. But a number of side issues have been dragged in to confuse the public mind. I said on Friday last, and I repeat, that there is no question of the public interest being involved in this measure. I say again, as I said on Friday last, that the common good is not served by any particular section or sub-section of this Bill. As I argued last Friday, the common good dictates that this Bill should be withdrawn. The common good dictates that the citizens who regard themselves as the lineal successors of the old Sinn Féin should have the right to go to the courts and fight the case to a conclusion there. These are the fundamental issues we have been fighting. That is the big principle that is involved.
A number of cases and previous Acts have been quoted by the Taoiseach as precedents for this measure. May I say that not one of them has any analogy or bearing on this issue? The Lynam and Butler case, which led to the Land Act of 1931, and the various copyright cases—the Stokes' case—all were fundamentally different. In one case the issue was whether or not our citizens should have the right of appeal to an alien jurisdiction.
I did not quote any of these cases.
I understood you to quote all the cases from 1926.
The Lynam and Butler case was quoted.
I did not quote it.
It was quoted by someone on that side.
The Lynam and Butler case was introduced to oust the jurisdiction of the Privy Council. There is no analogy between an Act brought in for that purpose and this particular Bill. The Taoiseach quoted a 1926 Act and other Acts but he did not refer to the particular cases.
I thought we had moved on to reality, but apparently we have not.
The case quoted by Deputy O'Connor was definitely in no way analogous to the present case. Deputy O'Connor walked straight into it with his eyes and his mouth open.
What did Deputy O'Connor walk into?
He walked into this position, that he quoted a case in which a Bill had been introduced, not for the purpose of setting aside the Circuit Court decision but for the purpose of making the law such that no such decision could be possible in future.
What case are you referring to?
The Deputy referred to the Public Bodies Mutual Assurance Act. There is no analogy between the two Acts.
I quoted it in answer to the speeches made here.
Deputy O'Connor knows the doctrine of cy pres as well as I do.
I have forgetten it.
Since my student days I have not been very much associated with it but I do recollect that where the physical objects of the trust fail or where the original intention could not be carried out——
It must be a charitable trust.
Yes, but charity gets a very wide definition in this country.
It can be enlarged on by the courts.
If there is any analogy between the cy pres doctrine and the present case, my recollection of the cy pres doctrine is that where the physical objects of a trust fail and the original intention cannot be carried out, then the court will endeavour, by the application of the cy prés doctrine, to formulate a scheme which will go as nearly as possible to carry out the original intention of the trust. Here it would have been very difficult for the court to carry out the original objects or the original intentions of the trust, if we regard the Sinn Féin funds in that light, but it was not beyond the competence of the court to have suggested that a scheme might be agreed upon between the parties and that effect might be given by legislation to such a scheme. That is one way of dealing with the matter. It would have been a very simple matter to have a scheme drawn up by agreement between the parties—the Taoiseach laughs.
I do. That was tried so often.
Let us have the laugh explained.
It was tried for many a long year.
So Deputy O'Connor's analogy is no good.
The point is that although there was no hope of agreement, the Taoiseach, as representing one Party, took it into his hands to come to this House with this measure to give effect to what his Party considered should be done with the money. Is that not what we are getting? The Taoiseach has been talking democracy all the afternoon. I am beginning seriously to thing that we should spell democracy with a capital V instead of the "m." It is the Taoiseach's ego that counts in this matter; it is the Taoiseach's will. "I am the supreme arbiter in this matter; I am going to decide what is going to be done with the money and nobody else shall have that right." Other issues are brought in as red herrings. The fundamental issue here is that, rightly or wrongly, these people have made up their minds that they have a legitimate claim to these moneys and they have had recourse to courts to decide that case. If they are foolishly embarking on litigation of such an expensive character, if they have a frivolous case, I say that they should be made pay for the consequences of their folly but at least they should have the right of appeal to the courts. That seems to me to be fundamental if our courts are to function in an atmosphere of independence. On the other hand, I understand the Taoiseach to say that they might have a reasonably good case, and that the courts might not award costs against them. If that be so, there is all the more reason why the case should be allowed to go to the courts irrespective of what becomes of the money. Does anyone seriously suggest that £24,000 is going to solve the grievances or salve the wounds of the many people mentioned as beneficiaries, if this measure were passed? A sum of £24,000 will be a fleabite in dealing with many of the cases I know of which were not compensated under previous measures.
The Deputy knows that the question of the allocation of the money does not come under this section.
The question of the frittering away of the money comes under this section. I am suggesting that it is "codology" to talk of this money being set aside, as the Minister for Local Government did last Saturday night, to compensate people for their losses in the Black-and-Tan war. These are, I suggest, red herrings dragged in to confuse the public as to the fundamental issue. The fundamental issue is that a group of citizens, feeling they have a grievance, think that that grievance should be ventilated in the courts. In pursuit of that policy, they have made a claim and they have asked the court to decide that claim for them. They are entitled to that and they cannot be gainsaid in any way. Every group of citizens has the same right. Unless the proceedings are entirely vexatious or frivolous they should have the full protection of this House in seeking that redress. The common good does not demand that this measure should be passed and that these people should be prevented from seeking the measure of relief which they are seeking through the courts.
The common good, as I understand it, under the Constitution which I have already quoted, lays it down that this House should not pass any law which would deprive citizens of rights which they had under the existing law and under the Constitution and that, as far as practicable, they should be protected.
We cannot deprive them of any rights they have under the Constitution.
Strike out your action then.
They cannot be deprived of their rights under the Constitution.
Strike out your action.
The section says that all proceedings shall be stayed.
Our action is null and void if it is contrary to the Constitution.
You certainly are not upholding your Constitution.
The Constitution says:
"The State guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizens."
I say it is the duty of the House under that Constitution to defend and vindicate the rights of these parties who are seeking that measure of relief from the courts at present, and that if this House passes a measure of the kind adumbrated here, we are doing it in flagrant violation of the Constitution and in the face of that Article of the Constitution I have read.
In that case, it is null and void.
It may be null and void, and it seems to me that it is a terrific waste of public time that we should be forced to fight the issue in this fashion.
That is a different foot.
Apparently the Taoiseach has satisfied himself as to the constitutionality of this measure. He is not only pre-judging the Sinn Féin action, but the issue that may come before the Supreme Court.
I have a right to express what I am sure is the case.
I am not concerned with any other issue in this matter. I want to see these people who make this claim getting their claim through in the ordinary way. I want to hear the Taoiseach put up the reason why the courts should not decide for or against these people by the ordinary process of law. If the Taoiseach made the case that perhaps these people might use these moneys for subversive purposes, for purposes contrary to the public interest and particularly contrary to the security of the State, one could sympathise with him introducing a measure of this kind, but that case has not been made. It is clear to me that if these people get these funds, they would be free to use them for political purposes. Perhaps that is the reason the Taoiseach is so anxious to prevent them from having their rights asserted in court.
There would be very little for them, I think, even if the money were given to them, by the time the lawyers were finished and the law costs taken out of it.
The law costs to date amount to £8,000 which you are going to pay under this section.
It is better to cut your losses at a particular stage than to continue losing money.
You are going to pay £8,000, part of it to people who do not deserve it.
With all due respect to those who handled the early proceedings in this case, there was a good deal of bungling. This case has been pending since 1941, and, without going very deeply into the matter, it is quite clear to me that a certain course could have been taken early on and this entire case could have been dismissed for want of prosecution.
They could have set it down for trial themselves.
We must have only one Deputy at a time.
I rose to explain why I feel there is a definite principle involved here. That principle, as I see it, is the right of the citizen to go to court. The cases which have been quoted are all cases which certainly are not analogous to this case by any stretch of the imagination. Most of them were cases in respect of which legislation was introduced to stabilise judgements of the Supreme Court and oust the jurisdiction of alien courts, and particularly the British Privy Council. But, whatever measures were introduced here, I challenge the Taoiseach to produce one in which a citizen already before the court was prevented from exercising his legal rights before that court.
There is no such case.
I challenge the Taoiseach to produce one.
Can the Taoiseach give one?
The local authorities' mutual assurance case.
They had no case before the courts.
I am challenging the Taoiseach to produce one Act of this Oireachtas in which a precedent on all fours with this was established.
The Deputy knows perfectly well that he will not get one on all fours.
Give us one near it.
I gave a number of them, and I will give them again.
Can you mention one of them now?
What Deputy is speaking? Is it Deputy Coogan or Deputy McGilligan?
I am in possession, but everybody seems to be speaking. I want to repeat the challenge to the Taoiseach to produce an Act of this Oireachtas which gave legislative effect to an encroachment of this character upon the courts. I challenge him to produce that Act.
Deputy O'Connor thrusts himself into this argument as a lawyer. He thrusts himself in, with the confession that he does not know much about the cy pres doctrine. In that confession of lack of appreciation, he will be joined by very many lawyers, but he does know that every day before the courts consents are moved to be made rules of court. That is a very ordinary procedure. That is the Erasmus Smith case. That is the case of the Erasmus Smith proceedings— long litigation and money going to be wasted and then the parties come together and their agreement is recited in this Act, and, instead of the consent being made a rule of court in court, the consent is brought in here.
Why?
Because the parties wanted it.
It was not done in court.
Because the parties wanted it done elsewhere. Is there any point in that remark because I do not want any such remarks to be taken as argument? Is there any point in it?
I do not know.
Then do not interrupt as if there was a point in it. Is it not clear that the Erasmus Smith Act of 1938 was founded on a consent? Is there consent here? There is not. Is that not a complete difference between the two cases? The Deputy shakes his head. What is the difference other than that? That is the big difference. Day after day, solicitors and counsel go into court and move consents and they are accepted by the courts. Not very often but now and again the consent is dragged out and made the foundation of a legislative Act. That is the Erasmus Smith case. Fundamentally, they are the same thing—consent was the basis. May I read one paragraph from Section 10 which we are discussing? It says: "On the passing of this Act all further proceedings shall be stayed"—without the consent of the parties. That is the big difference—that is the enormous difference. That is the difference between having courts of justice and having a Dáil which pretends to be a court of justice.
There is always a difference in the case you are arguing against.
I am not talking about minor differences of detail. The Deputy knows the difference between going into court and saying, "I agree" and being dragged into court by somebody else who says, "I have power from the legislative body to stop you going any further". That is the big difference and not any pettifogging nonsense about points of detail. The foundation of the one is consent and the pivot of this is the objection by one party to relinquish its rights and what the Taoiseach has called this sovereign court, if you please, Dáil Éireann, coming in now to adjudicate upon the merits of a case at hearing before the courts. Will there be any more nonsense talked in the way of an attempt to make an analogy between the Erasmus Smith case and this?
Deputy O'Connor has brought in the public bodies' mutual assurance business and the very phrase he read out was to the effect that the second Bill was brought in with regard to future decisions. Has this to do with future decisions? Not at all; it is the present case. I was partly responsible for the Insurance Bill. I appeared as a witness in court and Judge Davitt held that that piece of legislation was not properly framed. We left it there. We accepted his decision and people paid costs and people suffered by being mulcted in costs as a result. Certain people got their costs out of it and we did not come to their assistance. But we said: "We failed in our objective; we have given a piece of legislation to the courts upon which the judges could not give the decision which it was the opinion of this House they should give. For the future, here is the new legislation", and we again threw it out to the courts to interpret and we never interfered with the decision of the court. I should be very strong in upholding the right of this Dáil, on any occasion on which it passes legislation and when the courts have come to a conclusion opposite to the views of those who passed the legislation, to say: "As from a certain date, we will re-establish our viewpoint", but that is not taking away from people the rights they have already gained.
I do not know how often that has happened in connection with the income-tax code, and the Finance Bill year by year is built up in this way, that the Revenue Commissioners seek to close gaps which taxpayers had found in the code up to that date, but they do not go in and say that such and such an action shall stand dismissed. They leave the people with what they have gained by their appearance in court and, if the revenue loses, it suffers the loss for the time being. It may make it up by extra taxation during the year, but the Revenue Commissioners do not change the law to swerve a judgement away from the person who has got it and to prevent a man from pleading in court a case which he has started there.
I asked for a case to be brought to my notice in which a piece of legislation has stayed all further proceedings, that piece of legislation—and this is an important matter—being brought in to deal with a pending proceeding. I have said that there is no such case. I know that there is no such case. The Lynam and Butler case has been referred to here, though I gather that that has been repudiated. That was a case in which it was provided that there were to be no appeals to the Privy Council. Appeals were to go no further than the Supreme Court. If we had not declared that to be the law, we would have been regarded as unnational. We provided for a final decision by the highest judicial tribunal we had and people were warned, before they commenced litigation, that they would not be allowed to go further than the Supreme Court. We interrupted no pending proceedings to take the matter out of court and into what is called "this sovereign Assembly". I need not labour that point further. Deputy O'Connor knows what a consent judgment is. This is not a judgement of that type.
We ask our citizens to believe that the Constitution really has meaning and virtue. When they go along to a certain stage, we stop them and say: "You may have thought that you had only the courts to deal with; we have another trick up our sleeve; we have the sovereign court of the Dáil; it is not in the Constitution as a court but we shall make it one and establish its action as the judgement of a court." I move to report progress.
Progress reported; the Committee to sit again at 7.30 p.m.