Before I intervene, I should like to hear a little more from some members of public authorities in relation to this matter.
Private Deputies' Business. - Public Authorities (Judicial Proceedings) Bill, 1952—Second Stage (Resumed).
Question again proposed: "That the Bill be now read a second time".
Major de Valera
There is nothing to be said for the Act as it stands.
That is Deputy de Valera's opinion in regard to the Act, not the Bill.
Mr. Boland
I do not like to raise the question of a quorum but there are very few here and I should like to hear some further views before intervening.
We shall give them a call.
Notice taken that 20 Deputies were not present; House counted and 20 Deputies being present,
I should like, first of all, to congratulate Deputies who have spoken on this Bill on having approached the question objectively and in a constructive manner. I think Deputy Dillon has rendered a service in bringing the Bill forward. There is no doubt that everybody, who has any connection with the law courts or litigation, realises the hardships that the present position imposes in a great many cases. Luckily, we do not have a great many cases of people injured by public authorities, but nevertheless, though the number of persons affected may not be very great, I think we should approach this question in the same way as most other questions relating to legal procedure would be approached—on the basis of what it is right to provide.
There does not seem to be any reason why a public authority should be placed in a more favourable position before the law than any ordinary citizen. The feeling I have always had in appearing for an ordinary citizen in the courts as against a public authority is that the ordinary citizen is always handicapped, quite apart from the provisions of the Act. The public authority has at its disposal a much better organisation and considerably more funds than the ordinary citizen. In a great many cases, the plaintiff in an action is a person of little or no means. Litigation is quite expensive and the ordinary plaintiff is always in a more difficult position than the public authority who is resisting a claim.
To give an illustration of the point, take an ordinary motor-car accident— a running down case in which a citizen is injured. The plaintiff must first of all have maps made of the scene of the accident. If he has been injured he has to have medical evidence, not merely from his own local doctor but also from specialists to establish the degree of injuries which he has sustained. In other cases even more complicated and more expensive technical reports are required. The onus of proof is always on the plaintiff, and thus the plaintiff has to obtain all this technical evidence and these reports before he can go into court. All these things cost money. A public authority going into court to defend a case of this nature has unlimited funds at its disposal to fight the case and is always able to get the best possible technical evidence that can be obtained, so that I think, quite apart from the provisions of the Public Authorities Protection Act, the ordinary litigant is already in a position of inequality before the law when he starts unless he happens to be a very wealthy private citizen or a corporation. I think it is, therefore completely unreasonable that, in addition to this handicap, the ordinary litigant will have to face the difficulties that are imposed upon him by the Public Authorities Protection Act.
I was very glad of the approach to this Bill shown by Deputy de Valera, who indicated that he realised the injustice of the present position. I know that the Minister must also feel that the position should be remedied. I feel that he readily realises that there is no reason why public authorities should be placed in a position where the public authority is above the law as against the ordinary citizen. I felt, however, from what Deputy de Valera said, that the Minister had some difficulties—difficulties that were probably raised by officials of his Department or possibly by the officials of the Department of Finance.
I should like to make this point to the Minister and ask him to consider it very seriously. The case no doubt to be made by the Department of Finance or by the officials will be that if this Bill is passed it will result in higher expenses for public authorities, that a number of cases may be brought in the course of a year against the public authority that would not be brought if the plaintiff were deprived of his right of action at the end of a six months' period and by the repeal of this provision the State might find itself with an additional financial burden to meet in the course of the year.
That argument, I know, will be the argument which will appeal to the Department of Finance and naturally to a number of Government Departments but I would ask the Minister to examine that argument realistically. I think that in the long run the Government and State Departments and public authorities would actually save money if this limitation were removed, if the Public Authorities (Protection) Act were repealed, because in practice any cautious solicitor or counsel will automatically advise the issue of proceedings immediately if he is consulted regarding a case against a public authority. I know from my own experience that whenever I am consulted by a solicitor regarding an intended action against a local authority my first advice to the solicitor is: "Issue your proceedings immediately. We will examine the position in greater detail afterwards so as to ensure that the litigant, the plaintiff, will not be deprived of his right of action."
As a result a great many proceedings are instituted that otherwise would not be instituted. Some of these are pursued to their logical conclusion. Others are not. In most cases the litigant, the intended plaintiff, is a person without means or without sufficient means to enable the public authority to recover costs subsequently. Therefore the fact that proceedings are instituted involves the public authority in expense that would not otherwise be incurred. If this Act did not exist a great many cases in which proceedings are instituted would not arise. Very often they might be settled by correspondence, correspondence lasting a few months or a few weeks. In that way the institution of proceedings would not arise and costs would be saved to the public authorities that are incurred at present, solely by reason of the fact that the only way a solicitor can safeguard the interests of his client where public authorities are involved is to issue proceedings immediately. I know that that has been my experience in a great many cases: to issue proceedings immediately solely by reason of the fact that the time limit was running against the litigant, and the litigant would be deprived of his right of action unless proceedings were issued immediately.
I would ask the Minister to take that into consideration if it is urged on him by the officials of his Department or of the Department of Finance that the repeal of this Act would involve additional liabilities on the part of the State or of public authorities generally. I think that in the long run it would actually result in economy from the point of view of the State and public authorities. However, I mention that because I feel that that can be the only basis upon which there could be any departmental objection to the repeal of this Act. I do not think that that is a consideration which should weigh with the House and with the Minister. The consideration which should weigh with the Minister and the House is that the Act, in fact, enables an injustice to be done to the ordinary citizen, and in most cases to the citizen who is not in a position to fight a case properly.
I have come across a great many cases in which litigants were deprived of their rights. I remember one particular case of a young girl who had, in hospital where she was undergoing treatment, received an injury to her eye through the negligence of some of the hospital authorities. She remained in the hospital where she was undergoing other treatment for seven or eight months after she had received the injury to the eye. She did not institute proceedings. She lost the sight of her eye completely. Naturally, at the time when she was in hospital, she was not considering the necessity of starting proceedings against the hospital and even if she had thought of it she would not have felt very much like starting an action against the hospital authorities while she was still a patient in the hospital. This girl lost the sight of her eye and lost her right to any kind of action as a result. The most common case, of course, is the case relating to a motor accident. Is there any reason why if a child is knocked down by, say, a police car or a car under the control of a public authority that that child should be deprived of his right of action at the end of six months? Very often the injuries sustained by a child or an adult do not become manifest or apparent for some months or even years after the injury has been received. As Deputy de Valera said, we have yet to learn of any reason, any concrete reason, why a public authority should be placed in a position of inequality before the law in order to be able to deprive the ordinary citizen of his ordinary rights.
I would, therefore, ask the Minister to consider this thing very sympathetically and agree to the repeal of the Public Authorities (Protection) Act. I know that the Minister may say, if he is influenced, if pressure is brought to bear upon him from his Department or other Departments, that there does not seem to be a tremendous public outcry about this or public demand.
Of course there is not. The number of people injured in motor accidents by motor-cars belonging to the State or public authorities is small and is not an organised body of opinion. But nevertheless I am sure that if the Minister inquires from anybody in the legal profession—a solicitor, a member of the Bar or a judge—he will find that there is a unanimous view that this piece of legislation with the strange history which attaches to it, and which Deputy Dillon recited the other day, does perpetrate an injustice on people who are not in a position to fight back, and, therefore, I would ask the Minister to take this step and rectify the position.
I should be very glad to be a member of the House which was responsible for repealing the Public Authorities (Protection) Act, 1893. I can only hope that the Minister will agree to repeal that Act in full. If he cannot see his way to do so, then, of course, I will vote for any change in favour of the ordinary citizen in my desire to remove an iniquitous privilege of public authorities.
I have listened most carefully to every word uttered during this debate, which began the other evening. The Minister must be convinced that grave injustice has very often been done to private citizens as a result of the operation of this Act. I listened carefully to Deputy Major de Valera the other evening. I think that he could not find any concrete reason why the protection, or any protection other than that accorded to the ordinary citizen, should be accorded to a public authority. I cannot find any such reason either.
I wish to endorse what previous speakers have said and urge the Minister to go as far as he possibly can in the direction in which this Bill aims.
The Bill, which was introduced by Deputy Dillon, seems to be understood by those Deputies who are members of the legal profession. All those who have spoken on it so far are legal luminaries. It will be interesting to hear the Minister's views, as a layman, on the matter.
I am a member of a local authority and I think it would be no harm if, to some extent, a different view point were put forward from that which so far has been indicated. I wonder if, before he introduced this Bill, Deputy Dillon had any consultation with the chief executive officers who administer the affairs of local authorities in this country. I wonder if he had any consultation with county managers, secretaries of county councils or other such important persons who fully understand the necessity for the protection that is afforded by this Act. It is possible that the six months set out is too short a period and that, if the Minister is considering amending the Bill in any way in the future, he should extend the period to a limited period of a year or 18 months.
Without some such protection as is afforded by the existing Act, local authorities would find themselves in the courts, day in and day out. Their work would be seriously restricted from day to day if they had not some protection. Unfortunately, very many members of the public consider local authorities fair game for legal actions if there is an easy way of bringing these actions. They are considered a body without a soul. The local authority and the ratepayers will have to foot the bill if actions are brought successfully against them. All that must be borne in mind. Those who are members of a local authority and who have had some experience of the types of actions which were brought against local authorities—and of the many hundreds of others that would be brought against them if the protection in question were not there—have a duty to consider this matter very carefully. We know that there are people who would be willing to take action against a local authority if they were not liable for the costs and if they thought there was any easy way of sustaining their action against the local authority. It would, therefore, from the local authority point of view, be very dangerous if they had not some protection.
Deputy Dillon has probably given some consideration to this matter but I doubt if he has consulted those people who have more experience than he has in this connection. I doubt, also, if he has consulted people who are close to the everyday working of a local authority and who fully appreciate the possible repercussions of this Bill.
While Deputy Dillon was Minister for Agriculture in the inter-Party Government he was responsible for the Local Authorities (Works) Act. The Local Authorities (Works) Act left the local authority more vulnerable to action than probably any piece of legislation that existed before it came into operation. Under that Act, a county council is empowered to go in on anybody's land and to drain it without the authority of the owner. The county council may ride roughshod over the objections of the owner and, as has happened in many cases after draining land, they may deprive the owner of water on his land. Unfortunately, many farmers have been deprived of water on their land and, as a result, some actions have been taken against local authorities while many others have been threatened.
If there were a big time lag such as that which Deputy Dillon desires— a time lag with no limit—it is not unlikely that, after ten years, persons could take action against a local authority and fully satisfy the court as to their complaint.
The Deputy has not read the Bill.
I have, of course.
Section 1 very specifically provides a limit.
A saving limit.
It does, expressly.
I do not want to pursue the matter further.
But I do. The Deputy says no limitation is proposed in the Bill. I tell him that there is.
There are very many instances in which local authorities need protection. During my time as a member of a local authority I have known 300 or 400 instances where, but for the present Act, action would have been taken—unjustifiable action in many cases.
Deputy Costello mentioned that he was very interested in a particular case where, he thought, a big injustice was done. A building was damaged as a result of the use of heavy machinery in its vicinity by a local authority. Another thing that could happen just occurs to me now. Suppose a local authority repairs a road without machinery and that, as a result of the repair of the road, very heavy lorries carrying, say, up to 30 tons proceed over that particular roadway which they have never used before. As a result of the heavy traffic on that roadway, the foundations of a building in the immediate vicinity may be shaken or damaged. The local authority repaired the road without the use of heavy machinery and thereby made it possible for a lorry carrying, say, 30 tons to pass over it. The heavy traffic, as I have said, may shake or damage the foundations of a nearby building. Does Deputy Dillon consider that it would be fair that a local authority should be liable for damages in such a case?
An action there would lie against the owner of the lorry.
Then there is the matter of water rights. This year we had a very dry summer. Fifteen years ago a local authority took water from a rather large stream and, because of the dry summer which we have had this year, the level of the water in that particular stream fell so low that the riparian owners or the people living along the stream had little or no water for their stock. They were contemplating taking an action against the local authority——
That was done 15 years ago? There is nothing in this Bill empowering them to do that.
One hundred and one cases could be quoted to justify the absolute necessity for some protection for local authorities and also for some very reasonable limit. Those Deputies who are lawyers and solicitors have had experience of many such cases in the courts.
We all appreciate that, from the point of view of the members of the legal profession, they are interested in the opening up of new fields such, for example, as we have in the case of running-down actions. I believe that if this were opened wide it would do serious damage to local authorities.
I do not want to interrupt the Deputy but may I say that I think a great many actions are started now against local authorities that would not otherwise be started if it were not for the fact that every legal practitioner, the minute he sees a possible claim against a local authority, says: "Institute proceedings at once." These proceedings would not be instituted if there was more time to negotiate and settle.
The legal profession will always institute proceedings against a local authority if they get any opportunity at all because the local authority is regarded as a good mark. That is a well-known fact.
I think it works the other way.
There is nothing wrong about that.
I think there would be everything wrong about it if it were true, but it is not.
I would ask the Minister, before he agrees to anything, to consider very carefully the interests of local authorities.
The interpretation of this Bill may be misunderstood by certain members of local authorities. Anyone who is a member of a local authority realises that, in the main, he, as a member of the local authority, has absolutely nothing to say as to what litigation is to be defended by that local authority. The matter is dealt with by the legal advisers and officials of the local authority. I think that very great hardships are inflicted on the public as a result of such litigation. I have found in very many instances that the legal advisers of county councils and urban councils can educate town clerks and other officials in the art of procrastination in order to get over this limitation. I have found, in several instances, cases in which people have been ridden out of their justifiable actions against local authorities by those people who are astute enough to get them beyond the six months' limitation.
I do not see why a local authority, if some of its servants have done wrong or have been negligent in the performance of their statutory duties, should not be liable for the acts of its servants in the same way as any other corporation or firm would be. It may be suggested that the ordinary limitation of six years is too long. I do not think so. There have, of course, been precedents established in this House as regards litigation by local authorities. You have, for instance, the Local Authorities (Works) Act and other statutes which lay down a much shorter period of limitation than that obtaining in the case of an ordinary individual or corporation. Taking the picture generally, I do not see why local authorities, as far as actions of this type are concerned, should be put in any special position. As I have said, hardships have been occurring as a result of this limitation. There is no justification for that these days.
Some Deputies have said that, possibly, this Bill would lead to further litigation as far as local authorities are concerned. It has been my experience, and also, I am sure, of many other people, that the public, in general, are afraid to commence litigation where local authorities are concerned because they know that if they do they are up against the might and power of the local authority with unlimited money at their disposal and of their legal advisers. They have that money evidently for the purpose of fighting litigation, and have at their service hosts of engineers and experts. You invariably find, in cases of this kind, that a poor countryman, who is not in a financial position to fight a local authority in the courts, will be very chary of taking an action against it. He knows that if he does he is going to be up against the might and power of the local authority.
It has been my experience that I have seen a local authority pursue absurd litigation to the bitter end. That has been done by its legal advisers. The local authority, itself, had no say at all in the matter. I have seen cases in which a local authority concerned litigated all the way up to the Supreme Court. Such a case would not be litigated to that extent at all if it was a private individual was concerned. The same thing occurs in the case of State Departments which also, of course, have unlimited wealth and power at their disposal. It is my opinion that these expensive trips to the Supreme Court would never have been taken if they were concerned with the affairs of an ordinary citizen with his limited resources. I thought, from time to time, when this matter was raised that local authorities would not plead the statute just as certain people will not, in conscience, plead the Gaming Act or the statue of limitations, I think that, in every case in which a local authority is concerned, if it can take advantage of the Public Authority Protection Act it will do so, irrespective of what injustice is done to the unfortunate man concerned, or what loss he suffers. It does that because it is in a position to plead that Act and because the unfortunate man concerned had not, perhaps, seen his legal adviser in time. It will bluff him out of his claim by correspondence through its legal adviser or officials.
I have been considering whether some special limitation should be imposed in this matter. I do not see why any special limitation should be imposed outside the ordinary limitations that exist in connection with these matters generally. The way that I look at the matter is that, even though a local authority may suffer some hardship in some case, it is far better able to bear that hardship than an ordinary member of the public. It may be suggested that there should be a special limitation for local authorities in order to give them an opportunity of budgeting for possible claims or of striking a rate to enable them to cover claims envisaged over a particular period. We all know that, where a local authority is concerned, in matters of this kind it is covered by insurance companies. Therefore I do not see why it should be put in any special position. I think that the six years should apply to it as well as everybody else. In view of the fact that insurance companies will be concerned in the case of local authorities I think the ratepayers will not stand to suffer any hardship as a result of this Bill going through. I suggest, therefore, that when the Minister is considering this matter he should wipe out this particular protection given by this Act and leave local authorities in the same position as the ordinary citizen. There is no reason why a local authority, with all its officials and servants in these days, should not be sufficiently diligent in looking after any matter that might occur, and there is no reason why they should be put in a special category in relation to matters of negligence, and so forth, which every other company, corporation and individual has to meet. I support in general the principles outlined in this Bill.
Does the Minister want to say something about the Bill to-day?
Mr. Boland
Not particularly. Naturally I am anxious to hear what the Deputies have to say first. That has always been my attitude. The Government, of course, has its point of view.
I was about to suggest that possibly the Minister might like more time to think the matter over.
Mr. Boland
I think I may as well say something now. First of all, let me say at the outset that I have never been a member of a local authority but I have been an employee of a local authority. If I have any bias it would be towards the employees. I feel there must have been some reason, apart from those Deputy Dillon gave us last Wednesday, for a measure of this kind in 1893. Deputy Dillon gave me the impression—perhaps he did not intend to give it—that he himself thought that the 1893 Act was the first Act of the kind giving special protection to local authorities.
No. It repealed 108 Acts which had given special protection.
Mr. Boland
Almost from the time local authorities started to function there was apparently a certain amount of protection in the way of limitation of time and so forth. I am perfectly satisfied that six months is too short. If a new Bill is introduced, and I think it ought to be, I think the provision should run from the time when the damage becomes apparent or from the time when the cause of action accrues rather than from the time it actually happened. The idea of an official being in a position to talk a man out of his rights through the medium of prolonged negotiation is preposterous and should not be allowed. That is the way I feel about it.
In connection with costs, I do not think local authorities should be entitled to any more costs than is the ordinary citizen. A claim should not lapse because of any disability such as in the case of a person of feeble mind or in the case of an infant. The Government, however, is not prepared at this stage to accept a simple repeal of the 1893 Act. I am prepared, on the other hand, to bring in as soon as possible an amending Bill. I think that should be satisfactory. I have dealt with the outstanding points about which there is complaint. I agree the time limit of six months is too short. Deputy Dillon holds that the limit should be the same as that governing the case of an ordinary individual. I do not agree with that because a local authority is not quite like an individual. A local authority acts in the public interest. There is no question about that. Possibly pre-1898, when grand juries ran the country, things may have been done in the interests of the landlord class and so on but I do not think that argument holds good any longer. There is full franchise now.
It is only right to say that local authorities act in the public interest, generally speaking. As a rule individuals act only in their own interests. We all have to surrender some of our rights to the public good at certain times. The average man or woman feels that he or she should go after their own specific rights all the time whereas a public authority is acting in the interests of the community as a whole. I think local authorities are in a special position.
I agree that the Act as it stands is indefensible. I do not know how it has lasted so long. It must have been because no complaints were ever made. Certainly there were no complaints to the Government of which I was a member from 1932 onwards. There may have been complaints to the last Government. That may be the position. Obviously the reason why there was no question of amendment up to the present time is because there was no volume of complaint.
When we first came into Government in 1932 an action could not be taken against the State if an individual was run down by a State car. I am not sure when we passed the particular Act governing that circumstance, but we made the State liable for the first time, for injury done to private citizens by State cars.
There is need for drastic amendment in the present instance but not, I think, for outright repeal. If Deputy Dillon is willing to withdraw his Bill and wait until I, or some other Minister, brings in a proposal for substantially amending the 1893 Act I think that would be the most satisfactory way to deal with the position. We can then have a full debate on the matter.
I do not like that "some other Minister".
Mr. Boland
I think it is a matter for Local Government. This Act deals mainly with local authorities.
No.
Mr. Boland
If it comes within my purview I will certainly introduce the Bill. I feel, however, that it should be the prerogative of the Minister for Local Government. Some Minister will have to bring in a Bill as soon as possible. I think that ought to satisfy Deputy Dillon. It is quite clear that there is agreement on both sides of the House in connection with this matter, but I do not think a simple repeal is the proper way to deal with the position. Deputy Dillon, as usual, amused me because of his rather exaggerated way of making a case. When he started off with all that detail about Westminster——
That is the history of the passage of this Act.
Mr. Boland
——it was done in such a dramatic and humorous way it amused us all. I think it was exaggerated.
That is the literal truth of the passage of the Bill.
Mr. Boland
I was never an admirer of the Mother of Parliaments but, if they did things in the way Deputy Dillon described them, I wonder how the old Irish Party stuck it so long.
They had to stick more than that.
Mr. Boland
If that is the way they did business I do not know what sort of parliament it was. It would not happen here.
Since no other Deputy wishes to speak I will now call on Deputy Dillon to conclude.
I certainly do not withdraw the Bill. The Minister expressed surprise that this matter was never dealt with in the 30 years' existence of our own Parliament and feels that, if such urgent need existed, steps would have been taken sooner.
The reason steps were not taken sooner was that people give up trying to take steps, because when you do, the very considerable labour which the preparation of a Bill of that kind involves in research and reading blue books and looking up the history of the legislation which it is sought to amend or repeal and present the measure to Parliament, you are met by the obfuscated and exasperating attitude of the Civil Service, whose advice always is "do nothing". There is one certain safeguard that they have: it is to do nothing; that things have been as they are for the past 50 years. Now, a lot of little people have been ground under the wheels of this Moloch.
Mr. Boland
That is not fair. It has not been my experience.
I know perfectly well what will happen. We will be told that as soon as may be a Bill will be introduced. Look at the legislative programme of the Government and tell me at what stage is the Government Chief Whip going to provide time to discuss a Bill to amend the Public Authorities (Protection) Act with the Minister for Industry and Commerce roaring for time, the Minister for Local Government roaring for time, and the Minister for Defence with a Bill with 208 amendments in front of him. At what stage do you imagine the Government will apportion Government time to deal with a Public Authorities Protection Act (Amendment) Bill?
I was not a member of the Government for very long, but I know perfectly that the prospect of any such Bill getting within shouting distance of the agenda of this House is as contemplable as that of a snowball long surviving in hell. It is just for that reason that, probably foolishly, I devoted a great deal of time and worry to trying to get the background in history of this Bill and arranging for the submission to the House in Private Deputies' time of a simple measure which would remove that injustice to a great many small people who have not anyone to talk for them.
I got a letter this morning and let me read it for the House. There is nothing very dramatic in it, but it will give the House an illustration of the fact that the public authority under the Public Authorities Protection Act is not necessarily a county council or a board of health or anything of that kind. It can be any Department of State, any Department of the Government. Let me read the story of this simple citizen:—
"A man owns and operates two lorries for the purpose of dealing in turf and coal. On the 8th December, 1951, he was coming up the Quays loaded with coal and when passing Butt Bridge a car driven by a Garda officer approached at right-angles and collided with him. The Garda officer admitted that he was at fault and the fact that the man was not prosecuted in relation to the incident is proof that such was the case. His insurance bore a £5 excess and it earned a 30 per cent, no claim bonus. He wrote to the Garda authorities and the papers in connection with the claim were sent up and reported upon by the Gardai of the district where the man resided.
It never occurred to the man or to ourselves here that the matter was going to be questioned and anyhow we never thought of the Public Authorities Protection Act, and in the circumstances we assumed that it was a question of great bodies moving slowly. When the Gardai were finally asked to settle, they repudiated liability and the claimant's solicitor was subsequently informed that the Public Authorities Protection Act applied and that as more than six months had elapsed no action could be brought.
The insurance company which covered the man pointed out that it was admitted that it was not he who was responsible for the accident and that they would not pay, but they would note the fact that he had had an accident and would he please send them a cheque for the 30 per cent, no claim bonus which he had hitherto enjoyed."
The net result of that man's collision with the public authority was that the public authority paid nothing and his own insurance company increased his premium by 30 per cent.
I am told that I should drop this matter and let it ride. Why should Oireachtas Eireann drop something when it is possible to do justice, to effect a necessary reform? what hardship can possibly accrue to any local authority from its being placed in exactly the same position as everyone of us stands in here, no more than that, no less? If any one of us wanted to claim a special exemption from the ordinary Statute of Limitations which governs relations between all citizens of this State, would not we be expected to come to the Oireachtas and make a case why we should be exempted, individually or as a class? All I am suggesting is that we should put local authorities in the same position as every other legal person in the State, with no restraint upon the local authority to come to this or any subsequent Government and make a case why they should be taken out of the condition which obtains in respect of everybody else and given a privileged position. If they can make that case, then let the responsible Minister introduce a Bill giving them a limitation of one year, two years, four years, or whatever period he thinks well.
I want to warn the Minister for Justice against this danger. It is a very understandable thing, from a cursory survey of the cases, to say that we think that the Statute of Limitations in respect of public authorities should not be allowed to run except as from the date on which the damage manifests itself. Does the Minister realise that if that provision were inserted categorically it might mean to abolish the Statute of Limitations altogether? A man might come along with "rheumatics" in his sixty-fifth year and say that this was the direct result of a blow received from a watering cart when he was playing on the street 47 years ago—and a very strong case might be made for that thesis.
I beg of the Minister for Justice not to rush lightly into the arena of legislation but rather to seek to place the public authority in the same case as the ordinary citizen, leaving it to the acccumulated wisdom of the case law of the courts to determine in each specific case what justice requires to be done. It is an extremely dangerous thing by statute to seek to rectify specific anomalies as they present themselves to the Legislature, because the Legislature may go in quite the wrong way about devising a remedy and when they have devised the remedy the courts interpret what the Legislature meant to do and very frequently come to the conclusion that the Legislature meant to do the exact opposite to what the Legislature was trying to do.
I am asking him, without going into details of that character, simply to take the public authority and say that it is the same—the county concil or the Government Department—as the Imperial Tobacco Company, the Imperial Chemical Company, Pat McNulty, William Taylor, McBirney and Company or any other legal person in this State.
I want him to say simply that all are equal before the law, that all have equal access to the courts, that all are assured of the same protection, that none bears greater liability than the other, and all should benefit by the accumulated wisdom of case law of the years of various kinds of action from time to time being brought to the court for adjudication.
Is there any means of persuading the Minister that, in fact, what his advisers are doing is this. They know, when the British Parliament set its hand to the amendment of this Act, instead of substituting uniformity of the Statute of Limitations for all parties it substituted, I think, a twoyear period for the six months' period in the Public Authorities (Protection) Act. I think the Minister's advisers have substantially said to him what he said here to-day: "When this Public Authorities (Protection) Act was first passed there must have been a reason for it. You want to know what that was before you go to seek the way."
The reason alleged for it was to produce uniformity in respect of the various Statutes of Limitations that had been created by Parliament since Magna Carta, and, therefore, the Public Authorities (Protection) Act of 1893 repealed 108 old statutes and for the various limitations substituted six months for two years. The alleged justification was that it was codification of the law and no more than that.
If you examine the history of the legislation you will know that Parliament was misled. The Bill was never debated. The courts, by their own interpretations, debarred themselves from inquiring, by reference to the debates of the Legislature, what the Legislature was trying to do. They must simply take the text of the statutes, and in accordance with the established rules of interpretation, determine what they meant. Having determined, in accordance with the rules of interpretation, what the statute means they apply it. The courts have taken the Public Authorities Protection Act and, on the assumption, which their own rules of interpretation compel them to accept, that the Legislature knew what it was doing and meant to do what it said it was doing, they applied the Public Authorities Protection Act.
It is perfectly certain that the Legislature never meant to do any such thing, but we are not bound to legislate by the rules of interpretation which bind the courts. It has ever been the remedy, where the courts have gone wrong in their interpretation of the Legislature's intention, to take seisin of the matter again and to pass a definitive Act, an explanatory Act. There are several such Acts on the Statute Book, which set out that, "notwithstanding the decision in such and such a set of circumstances, the Legislature now declares," and they proceed to correct the interpretation which the Judiciary have given to previous legislation.
What I am asking the House to do now is to sweep away this whole mountain of unjust law that is being built up on Carey's Case by this old puddin' head Lord Halsbury who understood neither the Public Authorities Protection Act nor anything else. He was responsible for the Act himself and is on record as saying that the meaning of this section is perfectly clear but every other judge that ever considered the matter said that the section is wholly incomprehensible. But they have followed, as is the practice of the courts, the decision in Carey's Case and that is the accepted interpretation put upon the Statute by Lord Halsbury who himself introduced the Statute, misrepresented its contents and who manifestly did not know what it was all about.
Those are the facts. There is no escaping them. Surely to God we are not so hide-bound in this country that simply because wrong has been done for 50 years we quake at the idea of putting it right? The Minister speaks contemptuously of the Mother of Parliaments. She has been functioning for seven centuries but she shows more enterprise and courage in dealing with this matter than our young institution. She has grappled with it but we have to contend with the influence of obscurantist interests such as Deputy Allen represents, although Deputy Allen did not know what he was talking about. He wanted to take a feather out of my tail. I know that but he had not the faintest notion of what was in the Bill or of anything about it.
Lord Halsbury!
Himself and Lord Halsbury would make very nice bed fellows in respect of this measure. The fact is that when an effort is made to do what everybody on every side of the House agrees ought to be done, this young and energetic Parliament, for which the Minister has such veneration and respect, proves itself to be a great deal less effective than the venerable cripple at Westminster, which at least has done something.
I suppose, when parliamentarians have been in public life for a long time, they get a bit cynical. The Minister for Justice knows just as well as I do that he has as much chance of getting the Public Authorities Protection Act amended by legislation introduced by the Government as he has of leaping over the steeple of Findlater's Church in a standing jump.
To begin with, he will have to get the Bill through the Department of Finance. There would be a fight that 40 could join in because every public vehicle for which the Department of Finance is responsible would now cease to have the protection of this Act and would become liable to the liability of the ordinary citizen.
Do not imagine that the Minister for Justice would be confronted with an opposition with which he could grapple and seek to overthrow. Not at all. I will tell you what would happen. A memorandum would be prepared in the Minister's office recommending the adoption of legislation. It would be circulated to any Department which would have an interest therein. One of those Departments is always the Department of Finance. The other Departments will return a rejoinder saying that they do not give a damn but if the Department of Justice wanted it it was all right.
Does the Minister for Finance return a rejoinder that he objects on the following grounds? He does not. He sits still and says nothing. After a protracted wait you give an energetic reminder. Is there at once an energetic reply? There is not. He sits still and says nothing.
After a further lapse of months, you set the appropriate Government machinery in motion to extract from the Minister for Finance a negative reply or a positive reply or some sort of a reply, whereupon, you get a memorandum, running into 15 pages, asking for further and better particulars of the proposals contained in your original paper, with special reference to the following 132 heads. You send that out to the Department, whereupon the whole Department is dislocated accumulating information which runs into 346 pages of replies to questions about the answers to which nobody gives a damn. That goes to the Department of Finance. During this period 18 months has passed. That document lies in the Department of Finance and after nine months' struggling to get an answer, the Government machinery is again put into action, whereupon the Minister for Finance requires his Department to give full and measured consideration to a folio of 346 pages received from the Minister for Justice about this important piece of legislation.
After three and a half years you may get a decision and put it on the Government agenda. It may be on the Government agenda for six months. Finally it is perhaps consented to and then you apply to have it sent to the Government's draftsman to be put in the form of a Bill, upon which you hear a hoarse laugh from the Government draftsman who says: "There are 47 Bills to be drafted, some of them running to 390 sections. We may reach this Bill in four years' time, but it is unlikely." Then you go back to the Government again whereupon every other member of the Government says: "Look at my Bill" and right enough, they all have Bills which appear to be more important. If the draftsman does draft a Bill, there are plenty of resources in the Department of Finance to block, harry and stay a Bill of this kind indefinitely. I ask the Minister for Justice does he ever expect to get through the Department of Finance with a Bill designed to involve the Department of Finance and every Department of State in a substantial potential liability they have never borne before?
Mr. Boland
We have decided to amend this Act. The Deputy makes a good case but he spoils everything by exaggerating it.
Does not the Minister agree that he has now to argue it out?
Mr. Boland
It appears to me that Deputy Dillon is objecting to a Bill of this kind getting proper consideration. I agree that the procedure is as he outlined it, but he is exaggerating it. Naturally, every Department is entitled to see how it affects them. As a former Minister, the Deputy knows that he is exaggerating it in his own picturesque way. The fact is that the Bill can go through in a reasonable time—probably before this time 12 months. Even if it takes that time, after 30 years it would not be such a long time. The Deputy wants to take it without any consideration at all.
My Bill has been here for six months. I have no complaint as to that.
Mr. Boland
It was not a Government Bill.
Surely it could be sent to the Department of Finance. Supposing the Minister said to-day: "Whatever I feel about it, the best I can get is two years or three years," I would feel that some progress was being made.
Mr. Boland
It will not take that long.
If the Minister said to the House: "I have argued this out with the Department of Finance and the Government and the best we can do is to extend the period of the public authorities liability to two years," I would feel that some progress was being made. I think it would be wrong to establish any new Statute of Limitation for public authorities, because it will create a new volume of litigation. If you put the public authorities in the same position as everybody else, there is no new growth of case law. The existing case law relating to actions of tort under that would apply to the local authorities' and people could go into court with the certainty of what the law is. If there is a new statute and a new time limit and a new arrangement running until the damage becomes manifest, you are liable to get a whole quarter of a century of uncertainty in which people will be going to the Supreme Court to make laws for their neighbours.
If this Bill which I have brought before the House were passed, no public authority would suffer any material loss, because all it does is to provide that the right of action survives for six years. If the public authorities wanted that six years to be changed in their regard, what is to stop them from coming to the Minister for Local Government and making a case and asking him to approach the Minister for Justice? All I am trying to do is to establish uniformity. Surely the burden of proof is on the party who seeks an exceptional position.
I did not tell the story of this legislation for fun. I did not go to the trouble of finding out how this legislation was passed for fun. I do not enjoy spending late hours in the King's Inns library when I might be in the cinema. I much prefer the cinema.
Mr. Boland
I doubt that very much.
If the Minister frequents that library he will find it is not a very jolly place to work, although it is a very good library and there is a very co-operative and helpful staff. It is just a dry-as-dust place. I told the story of the origin of this Act in order to show the House that no case for it had ever been made. No local authority ever attempted to make a case for the special terms accorded to them in this Act. The astonishing thing is that nobody knew when the Public Authorities (Protection) Act was passed into law to whom it applied, and ever since it became law new categories of persons have gone to the court with hope and trepidation seeking to be brought within it, and in many cases, to their amazement, have been brought within it.
Whoever thought when that Act was passed without debate in the British Parliament 50 years ago that it would one day operate to exempt a dispenser in a rural dispensary in Ireland who carelessly makes up a wrong prescription? Whoever thought when that Act was passed that if, in a public hospital attached to a local authority, an unconscious person was burned by a hot water bottle the merits of his case could never be tried unless he started the action within six months from the date on which he was burned? In the case mentioned by Deputy MacBride the people injured might still be in the hospital and in the circumstances be required to sue the very hospital in which they are patients. If they do not sue while they are still patients, even though the case is unanswerable, the courts are stopped from considering its merits. What is wrong with abolishing all that and putting the local authority in the same position as other people without stopping them from making a case that they ought to have special privileges? We will meet that case and debate it if and when it is brought forward. Is it not true that the Minister's opposition to this Bill is founded on no better grounds than that his advisers said to him: "You do not want to go about a matter such as this like a bull in a china shop. You must take time to consider it."
Mr. Boland
The problem is that you are trying to take something from them which they already have. This question must be considered from all aspects and thought given to all the repercussions involved.
Is that not why I told the story?
Mr. Boland
What the Deputy wants to do is to take away from them what they have now and let them make their case anew. They are entitled to certain protection and he is suggesting that we should take that away and oblige them to make a new case. They are entitled to protection and before we take it away the matter must be carefully examined having regard to all the repercussions it may entail. That cannot be done by way of a simple repeal. When the amending Bill comes, then we can hear all that.
This Bill has been six months in the Minister's office. I am not complaining——
Mr. Boland
It may be unfair but I am afraid that not being a Government measure it did not get all the consideration it would have got. I must confess that, and I think that would be the case with any Government, that where a private motion is down, during the interval until it comes up you do not give it the same consideration as you would give a Government measure. I can certainly say that I have not considered it for the last six months, whereas if it were my own Bill I would have done so.
Yet the Minister expresses amazement that somebody has not taken steps to remedy the situation over the 30 years that we have been a free parliament.
Mr. Boland
If the Government brought it in it might be a different matter.
Picture now what the prospect is. The Bill designed to deal with this matter, before it embarks on the Government procedure I described to the House, is now going out to the county councils to get their agreement. It is going to all the dispensary doctors and it must go to all the county surgeons and to the representatives of the Local Authority Officials' Association for them to give their opinion. Bear this in mind. What official in Ireland who is in the glorious position that he has the protection of the Public Authorities Protection Act is going to advise the Minister that he ought to be deprived of that protection? How can he expect him to do it? I quite agree he has got something very precious but is it just, is it right, that he should have it? Remember this, the Public Authorities Protection Act applies to every sheriff's bailiff. If the bailiff comes and wrongfully seizes your dining-room furniture and you try to get it back by negotiation because you do not want the news spread through the whole country that the sheriff's bailiff was in and took your dining-room furniture, he can stave you off for six months and tell you he is going to talk to the sheriff to-morrow. One day after the six months he can tell you to go to hell. He took your dining-room furniture and the next time he will come in and take your bed. You have no remedy. It does not matter how wrongfully he acted when he is a public authority official under the Public Authorities Protection Act. It does not matter what injury you suffered in a public hospital or how manifest the carelessness or recklessness was. If they can hold you off for six months you are sunk. You can never take the case to court.
Does anyone suggest to me that if you go and ask the people who enjoy that benefit whether they think that legislative protection should be taken away from them, they will say: "Yes, we are living on velvet and we ought not to live on it any longer?" They will put out memoranda a mile long to say that public administration could become impossible if such steps were taken. That will take anything up to five years. Every sheriff concerned for public authorities will be in the thick of the battle and it is only after the Minister has persuaded his colleagues that it would be good tactics to embroil themselves with every vested interest enjoying the Public Authorities Protection Act advantage, at nobody's request, that the Minister for Justice could hope to get started on the Bill he has in mind. What is he going to say to his colleagues if they say to him: "You said yourself nobody ever asked for this amendment. The only man who ever said ‘hum' or ‘haw' was Deputy Dillon and God knows we ought not to be persuaded as to what is best to do for Fianna Fáil by Deputy Dillon." The Minister will have to say: "Nobody asked except Deputy Dillon" and they will say to him: "And are you going to quarrel with every dispensary doctor, with every rate collector, every public official in Ireland and vex them in order to please Deputy Dillon? Go away out of that." He will twiddle his thumbs and say: "I never looked at it that way. How will we stave him off now?""Well, send out a memorandum to all the local councils in Ireland and ask them would they like us to repeal the Public Authorities Protection Act and get the boys in the Custom House to tip them the wink that there is no great hurry and that they should take the precaution of consulting every public servant, every county councillor, every ex-county councillor and every potential county councillor before answering." If that does not consume five years they are Dutchmen.
Does anyone imagine that a Bill such as my Bill will ever see the light of day as it is, brought forward by an Independent Deputy outside the Government? Does the Minister for Justice honestly tell this House that he believes he will ever get his Government or any Government to initiate legislation of this kind? Why should they? Does not the Government have enough trouble on its hands getting through the essential, urgent legislation? Can you imagine this Government, bloody and battered after the Minister for Finance's Budget, lifting its bloody head and asking for another blow?
Mr. Boland
We are hale and hearty.
The Minister for Justice does not believe, nobody believes, in the introduction of a Bill of this kind. Why do we, to this day and age, prove ourselves such admirable copyists of the worst feature of an old and archaic statute? It could be exciting and it could be inspiring if a young Parliament were prepared, when it encountered injustice, to put it right, to cut itself through red tape in order to do it. There is nothing more deadening or sickening than to realise that the obstructive tactics of a welltrained bureaucracy can paralyse Parliament as it paralyses everything else. I do not blame bureaucracy. It is their job to paralyse if they are allowed to paralyse. My experience is that no one is more delightfully astonished than bureaucracy when it discovers that Parliament has suddenly wakened up and will not suffer paralysis at their hands any longer. But they will nobly do their duty and try to paralyse whenever anybody wants to do anything. It depresses me to see the Minister for Justice softly subsiding into the comfortable condition of peaceful paralysis in the arms of his own civil servants, sustained and encouraged by the tireless watchdogs of the Department of Finance. I want this Bill to pass. This is the right Bill to pass. Not a single word against the merits of this Bill has been spoken from any side of the House. Poor Deputy Allen rambled in and talked about everthing except this Bill, because he found himself unable to talk about things in this Bill which are good with any pretence of coherence. What kind of daftness has come over us that a Bill supported on every side of the House should be defeated and that this is now a Parliament in which legislation is passed only when an unwilling majority is flogged by Party disciplinarians into the wrong lobby?
Might I make a suggestion? There is a good deal undoubtedly in the difficulties which Deputy Dillon has pointed out. Would it be convenient for the Minister, instead of introducing legislation of his own, to avail of this Bill and to amend it in Private Members' time to meet his views? It would save the introduction of a fresh Bill and it would mean that it could be dealt with in Private Members' time and that results could be obtained within a few months instead of probably a couple of years.
Pass the Second Stage of this Bill and then amend it any way you like. The Minister could then bring in amendments to meet his viewpoint.
Mr. Boland
I do not think I could.
Why?
Mr. Boland
I think I have met the Deputy very reasonably in this matter and he ought not to persist in his attitude now. I have listened to all sides. I admit that amendment is necessary, but when it comes to a question of simple repeal like this, it requires far more consideration than it has got. We must get the whole thing considered—but not in the tortuous way which Deputy Dillon has suggested. That is a gross exaggeration.
Pass the Second Stage and let the Minister then appoint a day for the Committee Stage. Let the Bill lie as long as may be necessary.
Mr. Boland
That is not the way these things are done. A measure dealing with this matter ought to be a Government measure. I do not think the Deputy ought to persist. I do not want to divide on it because I am more or less in agreement in principle. I know that amendment is necessary.
Pass this stage and fix the Committee Stage yourself, or produce a Government Bill——
Mr. Boland
That is not the way to do it.
If you pass the Second Stage, you can fix a date for the Committee Stage, or produce a Government Bill, in which event I will cooperate in any steps requisite to get this Bill discharged.
Mr. Boland
There was a somewhat similar measure, the Adoption Bill, which was a Private Member's Bill, before the House some time ago. I was prepared to do something about adoption, but was not prepared to accept that Bill. What was done in that case was that the Adoption Bill was left on the Order Paper until I produced my own Bill and then it was withdrawn. Perhaps that might be a way out, if it could be done under the Standing Orders. The Deputy could wait until I produced a Bill, but I am not going to take this Bill as it stands. That is the best offer I can make.
Ad interim, would it be acceptable if I moved that the debate on the Second Stage of this Bill be adjourned?
That is the procedure. The Bill will remain on the Order Paper.
The Minister has been reasonable and I think we should say so.
At this stage, we have found a modus vivendi.
Mr. Boland
I am not so paralysed as the Deputy thinks and if I had been as interested in the Bill as the Deputy, I would have taken good care to get it passed. Several Bills in the past were not passed, although we spent hours debating them, and the Deputy might be better employed in getting the Bill passed, if it is so important.
Why did the Deputy not deal with this matter when he was Minister?
Perhaps the Parliamentary Secretary overlooks the fact that I was Minister for Agriculture.
The Deputy was a Minister in the Government.
I brought a good deal within the ambit of the Department of Agriculture, but I am damned if I could bring the Public Authorities (Protection) Act within it.
Debate adjourned.