I think I will leave the matter where it was when the debate was adjourned.
Defence Bill, 1951—Report Stage (Resumed).
Debate resumed on amendment No. 39.
Certain points were made by Deputy Colley and by the Minister in regard to this matter. I think the defence made for the provision in the Bill, both by Deputy Colley and by the Minister, was not a convincing one. Deputy Colley said that the case I was making in regard to this was exaggerated. I do not think so. I do not think it is possible to exaggerate such an important matter. It is too serious to be dealt with other than in an outspoken, outright and forthright fashion. I simply pointed out the very serious objections there were to such a provision as this in a permanent Act of the Oireachtas.
The Minister made the point—I do not think he did it deliberately—that it is reasonable for the State to get back in service from a young man who joins the Defence Forces some of the money spent on training him to be an officer. He made that point perfectly plain, referring to the two officers who resigned recently from the horse jumping section of the Army who had rendered, as he said, 12 years' service and more than repaid the money expended on their training. He put that against the case of the young Air Force officers who wanted to resign a short time after they were commissioned at a time when the Army could not have hoped to recover from them the moneys spent on their training.
I feel that there is a serious implication in that matter which will react unfavourably against the Defence Forces. If a young man feels that in joining the Defence Forces on the present interpretation of the effect of this section in the Act he can be kept against his will in the position of Army officer for a period of years sufficient to enable the Army to say to themselves: "This man repaid for his training and we will let him go," I think that will have a detrimental effect on the Defence Forces. It is a point of view that should not be accepted by the House or by the country.
The analogy in regard to apprenticeship does not really apply because apprenticeship in the Defence Forces so far as commissioned rank is concerned means, if it means anything, the period during which a cadet is being trained to be an officer and which, from the point of time, is a period of a couple of years.
Two years.
A young man goes into the Army with a very high standard of education. He is accepted as suitable for a cadetship after many exacting tests. Undoubtedly, he receives a course of training that is excellent in itself and at the end of that period, if he is fortunate enough to qualify in all his different examinations, it will enable him to become the material for a first-class officer. Once commissioned, his period of apprenticeship ends. That is my argument entirely basing it on the analogy of the apprentice in the trade or in a profession or the student in a school.
There is no other profession that I know of in which a man can be compelled to serve against his will. A man cannot be compelled to serve as a doctor against his will even if he gets his qualifications in the training school.
Even if he gets his qualifications from a State scholarship.
Yes, and even if he goes to the university and qualifies in law, medicine, commerce, engineering or in any profession, he may resign and give up that particular profession if he so wishes, although the great bulk of the moneys expended on qualifying him in the universities is, in fact, State subscribed.
I instanced, in an interruption, the case of a civil servant. A young man may join the Civil Service and may have high qualifications. He may be appointed to some particular post in the Civil Service in which he obtains a knowledge that would be very useful to him in another capacity outside the Civil Service altogether. He cannot be kept there, but we have this particular clause put in to say that the officer belongs to a different type of profession, not the honourable profession we understood it to be, but a lower class of profession in which he will be deprived of certain fundamental freedoms and liberties. Again, that is one of the objections I have to the Bill. This is a new conception of the officer as being in a lower type of profession than we always understood and, in fact, the majority of the members of this House understand at present.
But the analogy between the Civil Service and the Army for pay indicates the Civil Service mind on the Army.
Clearly. That is what I object to. The officer in the Army has a profession and has professional standards of a very high nature, and we find this lowering and debasing of the standards running right through this Act. There is a very strong case being made against this provision and it is not an exaggerated one. The Minister says, of course, that we must be realists and that is an argument which the Minister frequently advances; in other words, the Minister's mind is this: "I would not do a thing like that and I am the type of person who could not conceive another doing it." I think that is a fair way to put the Minister's approach to this Act and to other matters. Unfortunately, history is studded with examples of people doing things that reasonable people did not believe they would do, and it is to provide against that type thing that legislators and statesmen in all the Constitutions that they have the opportunity in democratic countries of enacting make what provision they can against the misuse of power, because once power is given it can be misused. Where you say in this section that the President may refuse to accept the resignation of a commission by an officer, you are giving some person the power to advise the President—because the President must act all the time on advice—to say: "No. We will not do that."
Take the case of an officer serving in the American Forces prior to the last Presidential Election who was mentioned in the propaganda as being a likely and very successful candidate. Supposing the powers-that-be there refused to accept the resignation of that officer, it could have had very serious political effects. I think it could happen, not perhaps now but at some future time in this country, that considerations such as that might enter into the question as to whether an officer would resign or would not. Once there are all those possibilities of misuse of a provision, the provision should not be there.
When a young man joins the Army and becomes an officer, he has the idea of making that his career, of serving in it and reaching the highest ranks. However, he may change his outlook; he may, for instance, desire to go into a more secluded life. He may wish to go into a monastery, study for the Church or do something else of that kind. Does anyone say that, in those circumstances, the Minister would refuse to accept his resignation no matter what amount of money was spent on his education? But it can be refused, as in the case I mentioned here to-night, where an officer desired to leave a technical corps and to obtain a position in the technical service of the State in which he would be, in the matter of pay, much above his own fellows in the corps in which he was serving. There is always the danger, human nature being what it is, that a little element of personal jealousy could be responsible for a recommendation that that particular resignation would not be accepted because, as we all know, it has to go through many channels from the very lowest up to the Minister and if it starts off with a recommendation that it be not accepted it is difficult on the way up for somebody else to take a different line. There is the danger that the human element can enter into it to the prejudice of a particular individual.
I agree with what Deputy Collins has said that, perhaps, this matter might have been worded somewhat differently and that there would be some little reasonable time lag to which nobody could take any exception. There is, of course, no validity or substance in the point that was made by Deputy Colley that this provision will prevent an officer who has committed an offence getting out before he can be brought to book. Deputy Colley, perhaps, would not have the intimate internal knowledge that other Deputies have in regard to the court-martial or disciplinary procedure that is in the Army, particularly in regard to this hidden clause—which even quite a number of people who have served in the Army from the very beginning are not familiar with—whereby a person may be court-martialled within a certain period of his ceasing to be subject to military law. That has only been exercised to my knowledge on one occasion, a very famous occasion, too, which I think is remembered by some other Deputies. It received a considerable amount of publicity at the time. It was a very important case and the provisions of the Act, obscure as they were, were brought into operation for the purpose of trying under the provisions of military law a person who had for a substantial period prior to that ceased to be subject to military law. Therefore, that defence of the section in relation to a person trying to avoid punishment for a criminal offence is not a good defence.
I think Deputy Colley had in mind an offence against civil law, not against military law——
Perhaps. I can see the difficulties that Deputy Colley was under.
He made a bona fide contribution in the belief that he had something——
Yes, in the belief that his point was so. Once a person commits a crime or an offence against civil law, that offence is tryable by the civil authorities within certain statutory periods laid down in the law and if he is subject to military law he may be tried by the military authorities. If he ceases to be subject to military law he can be tried by the civil power. I do not think that the Minister himself would adopt that as an argument in favour of the section as it stands. I have put forward the argument that that should not be in the Bill. I hope the Minister will reconsider it and that he will agree that it is unwise to have a provision such as that in the Bill when the effects of it may be to cause considerable concern to young people who may be considering the Army as their career and to cause considerable trouble and annoyance in the Defence Forces.
Will the Deputy not agree that if they are regarding the Army as a career they will not be trying to get out of the Army to get into a better position?
It is not a question of a better position: it is a question of a different profession.
Circumstances may alter.
A person may intend to adopt the Army as a career and, for one reason or another, may change his mind. That happens in nearly every profession. We have spoiled people of all kinds, as they are referred to, who had the idea that they were intended for a particular profession and who discovered subsequently that they had not the necessary requirements for that particular profession. If an officer submits his resignation on the basis that he is going to something not so good, the possibility is that it may be accepted, whereas if it is known that he is going to improve himself then it will be refused. That is the whole basis of the injustice that can be caused by this, because it deals with a matter that should be dealt with on its merits. It should be dealt with as a matter of justice to an individual, with the rights of an individual, and not on the basis: "This fellow has used the Army to perfect or improve himself in another profession. We will not let him do it." That would be a very bad approach to a problem of this kind.
I was glad to hear the Minister say that in all the period during which he was a Minister—and he has been a Minister a long time—since the 1937 Act was first introduced, he knew of only one case in which a resignation was refused—and that, unfortunately, had the tragic consequences that I mentioned earlier this evening. Nobody knows how or when or why death comes, but it is regretable that it should have occurred in this one case in which the resignation of the officer was refused.
I think the Minister would agree himself, on reflection, that a good case has not been made for the section as it stands, that a better case was made for the amendment and that he should see to it that my amendment is incorporated in this Bill before it reaches its final stages.
Question—"That the words proposed to be deleted stand"—put.
The Dáil divided: Tá, 49; Níl, 24.
Tá
- Aiken, Frank.
- Allen, Denis.
- Bartley, Gerald.
- Beegan, Patrick.
- Blaney, Neil T.
- Brady, Philip A.
- Breslin, Cormac.
- Briscoe, Robert.
- Buckley, Seán.
- Cafferky, Dominiok.
- Calleary, Phelim A.
- Carter, Frank.
- Childers, Erskine.
- Colley, Harry.
- Collins, James J.
- Crowley, Honor Mary.
- Crowley, Tadhg.
- Cunningham, Liam.
- Davern, Michael J.
- Derrig, Thomas.
- de Valera, Eamon.
- de Valera, Vivion.
- Fanning, John.
- Flynn, John.
- Flynn, Stephen.
- Gallagher, Colm.
- Hillery, Patrick J.
- Hilliard, Michael.
- Humphreys, Francis.
- Kenneally, William.
- Kennedy, Michael J.
- Killilea, Mark.
- Lahiffe, Robert.
- Lemass, Seán.
- Little, Patrick J.
- Lynch, Jack (Cork Borough).
- MacCarthy, Seán.
- McEllistrim, Thomas.
- McGrath, Patrick.
- Moylan, Seán.
- Ó Briain, Donnchadh.
- O'Reilly, Matthew.
- Ormonde, John.
- Rice, Bridget M.
- Ryan, James.
- Ryan, Mary B.
- Sheridan, Michael.
- Smith, Patrick.
- Traynor, Oscar.
Níl
- Beirne, John.
- Blowick, Joseph.
- Browne, Patrick.
- Byrne, Alfred.
- Collins, Seán.
- Corish, Brendan.
- Cowan, Peadar.
- Deering, Mark.
- Desmond, Daniel.
- Dockrell, Henry P.
- Dockrell, Maurice E.
- Fagan, Charles.
- Flanagan, Oliver J.
- Giles, Patrick.
- Keyes, Michael.
- Kyne, Thomas A.
- Lynch, John (North Kerry).
- MacEoin, Seán.
- O'Hara, Thomas.
- O'Leary, Johnny.
- O'Reilly, Patrick.
- Palmer, Patrick W.
- Rooney, Eamon.
- Sweetman, Gerard.
Tellers:—Tá: Deputies Ó Briain and Hilliard; Níl: Deputies Seán Collins and Cowan.
Amendment declared lost.
I move amendment No. 40:—
In page 36, Section 53 (1) (a), line 41, to substitute "is enlisted" for "enlists".
It is a textual amendment, following some discussion we had in the Special Committee.
Amendment agreed to.
I move amendment No. 41:—
In page 37, Section 55 (1) (a), line 19, to substitute "is enlisted" for "enlists".
This is similar to amendment No. 40.
Amendment agreed to.
I move amendment No. 42:—
In page 39, to delete Section 63, lines 33 to 55, and substitute the following new section:—
(1) (a) This sub-section applies to a man of the Permanent Defence Force who is enlisted under Section 53.
(b) The Minister may by regulations vary the conditions of service of a man to whom this sub-section applies so as to permit him, with the consent of the Minister:—
(i) to enter the Reserve Defence Force at any time for the residue unexpired of the term of his original enlistment, or
(ii) to extend his service in the Permanent Defence Force for all or any part of the residue unexpired of the term of his original enlistment.
(c) A man to whom this sub-section applies, with the consent of the Minister, may, if the term of his original enlistment is less than 12 years, extend, in accordance with regulations made by the Minister, the term of his original enlistment up to a period of 12 years or any shorter period.
(d) Where a man to whom this sub-section applies extends the term of his original enlistment under this sub-section, any subsequent reference in this Act to the term of his original enlistment shall be construed as a reference to the term of his original enlistment as so extended.
(2) (a) This sub-section applies to a reservist who, having been enlisted in the Permanent Defence Force under Section 53, has been transferred to the Reserve Defence Force under Section 70.
(b) A reservist to whom this sub-section applies, with the consent of the Minister, may, if the term of his original enlistment is less than 12 years, extend, in accordance with regulations made by the Minister, the term of his original enlistment up to a period of 12 years or any shorter period.
(c) Where a reservist to whom this sub-section applies extends the term of his original enlistment under this sub-section, any subsequent reference (including the reference in sub-section (3) of this section) in this Act to the term of his original enlistment shall be construed as a reference to the term of his original enlistment as so extended.
(3) (a) This sub-section applies to a reservist who, having been enlisted in the Permanent Defence Force under Section 53, has been transferred to the Reserve Defence Force under Section 70.
(b) The Minister may by regulations vary the conditions of service of a reservist to whom this sub-section applies so as to permit him, with the consent of the prescribed military authority, to re-enter the Permanent Defence Force for all or any of the residue unexpired of the term of his original enlistment.
(4) Regulations under paragraph (b) of sub-section (1) or under sub-section (3) of this section may be expressed to be applicable generally or in specified cases only.
The purpose of this amendment is largely to replace the existing Section 63 by a new section. I do not think I need worry the House with the reasons for redrafting the existing section. They are of a technical nature, revolving round the interpretation of the expression "term of original enlistment." The only new provision put into the new section is one which permits a man, who has been transferred to the Reserve Force from the Permanent Force, to extend the term of his original enlistment. Otherwise, it is purely a matter of interpretation and drafting.
Amendment agreed to.
I move amendment No. 43:—
In page 40, to delete Section 66, lines 25 to 29, and substitute the following new section:—
(1) This section applies to a reservist who is enlisted under Section 55.
(2) A reservist to whom this section applies, with the consent of the Minister, may, if the term of his original enlistment is less than 12 years, extend, in accordance with regulations made by the Minister, the term of his original enlistment up to a period of 12 years or any shorter period.
(3) Where a reservist to whom this section applies extends the term of his original enlistment under this section, any subsequent reference in this Act to the term of his original enlistment shall be construed as a reference to the term of his original enlistment as so extended.
This is another new section to replace the existing one, for reasons purely connected with the interpretation of the expression "term of original enlistment." I am advised that the new section introduces no change in principle or takes no new powers. It incorporates amendment No. 44 which, accordingly, I am not moving.
Amendment agreed to.
Amendment No. 44 not moved.
I move amendment No. 45:—
In page 41, Section 70 (3) (c) (iii), line 52, to substitute "(3)" for "(2)".
This is another textual amendment, rendered necessary by the new Section 63 which has just been adopted.
Amendment agreed to.
I move amendment No. 46:—
In page 41, Section 70 (4) (a) lines 62 and 63, and in page 42, Section 70 (4) (a), line 1, to delete ", unless required by sub-section (3) of this section to be transferred to the Reserve Defence Force,".
This provides for the deletion of a clause which could not apply in the case of a man covered by the paragraph in which it occurs.
Amendment agreed to.
Amendment No. 47 not moved.
I move amendment No. 48:—
In page 46, Section 82, line 40 (a) to substitute "to" for "at", (b) to insert "or to the address indicated by him on discharge" after "abode".
This amendment meets a proposal made in Committee by Deputy Cowan as regards the place to which a discharge certificate may be sent. The certificate will be sent either to the address specifically requested by the man or his last registered place of abode.
Amendment agreed to.
I move amendment No. 49:—
In page 47, Section 84, to insert before sub-section (3), line 18, a new sub-section as follows:—
(3) (a) A non-commissioned officer shall not be reduced in rank under sub-section (2) of this section unless and until the reason for the proposed reduction has been communicated to him and such non-commissioned officer has been given a reasonable opportunity of making such representation as he may think proper in relation to the proposed reduction.
(b) Paragraph (a) of this sub-section shall not apply during a period of emergency or in respect of a non-commissioned officer who is on active service.
This amendment arises from the debate on the section in the Special Committee, and it provides that, except during a period of emergency or active service, a non-commissioned officer will not be reduced without being given an opportunity of making representations.
It is hardly necessary for me to explain that, during active service conditions, it would be quite impossible to delay reductions for the purpose of enabling the men concerned to make representations. The matter would then have to be dealt with swiftly and, if fighting were in progress, would have to be left to commanding officers in the field. As regards a period of emergency it would also be difficult to confer any right. During an emergency many people are promoted who, after a while, are found not to be fitted for the higher rank and who must, in the interests of the Defence Forces as well as their own, be reduced. It is really nothing against them; it is just that they are found to be unable for, or unsuited to, the duties and responsibilities of the higher rank. In these circumstances, it is useless to have any argument or discussion; the reduction must be effected and that is all there is to it. In emergency conditions, you cannot always get over the difficulty of finding an alternative job for the man.
I think the military authorities have gone as far as possible in accepting this rather radical proposal in relation to peace-time Army service. I should not care to push them in relation to emergency or active service conditions and I hope the Deputies who raised the matter will be satisfied with the present compromise.
Having pressed this matter in the Special Committee, I am glad that the Minister has met it to the extent that he has met it. In other words, as far as ordinary peace time is concerned now, a non-commissioned officer cannot be reduced in rank unless he gets a reasonable opportunity of making such representations as he may think proper in relation to the proposed reduction. That is a measure of justice which everyone will agree with and which will be welcomed undoubtedly by the soldiers and non-commissioned officers.
I agree with the Minister that while we must have a protection such as this —and I am glad he has inserted it—in ordinary peace time, in the case of a was situation or of active service obviously other conditions would have to apply. I can only hope that the spirit of justice in relation to this matter that will apply in ordinary peace time will apply during an emergency or in a state of war or active service.
Amendment agreed to.
I move amendment No. 50:—
In page 49, Section 88 (2), lines 15 and 16, to delete "(not exceeding 1,500)".
Section 88 provides that the reservists may be called out on permanent service under certain conditions. A reservist who has entered into an agreement in writing to be liable to be called out on permanent service or who has not revoked his agreement, can be called out in the circumstances set out in the section. However, sub-section (2) says:—
"Whenever operations for the defence of the State are in preparation or in progress, the Government may authorise the Minister to give such directions as he thinks necessary with regard to the calling out on permanent service of reservists (not exceeding 1,500) to whom this section applies."
As far as I am concerned, it is a matter of mechanics. I think it is unwise for the Minister to limit himself to calling out 1,500 reservists. I think it is unwise for the Army Staff at the moment to insert a clause such as that into permanent regulations. It is unwise for the Minister to bind a successor of his to that limitation. It seems to me that if operations for the defence of the State are in progress it would be a strange state of affairs if the Government, with the responsibility of defending the State, could be told they could call out 1,500 and no more.
I can do nothing in regard to a section such as this except to say that the Minister is unwise to bind himself in that way, that the Government is unwise to be bound in that way and that the Minister has no right to bind his successors, as the binding of the successors in that way may endanger the safety of the State.
I cannot see any justification for a limitation such as this except what I have been referring to here this evening, and which Deputy Collins has been referring to also, that it is the mean, financial mind that is operating. The safety of the State, or what is necessary or vital to that safety, is not to be considered at all; it would cost so much to call out 1,500 and therefore, even though the State may be in danger, the Minister or the Government cannot be allowed to call out one man more. There is no reason for such a limitation. I simply propose that the section be deleted. I am absolutely satisfied to leave to a Government, when operations for the defence of the State are in progress, the discretion as to the number of reservists they will call out under this particular section.
Major de Valera
I must say that for once I can express myself in complete and absolute agreement with Deputy Cowan. Frankly, I do not see the sense of prescribing a limitation. I agree with Deputy Cowan that it seems to be unnecessary and dangerously hampering to prescribe that limit. The intention should be that the Government, through the Minister, could call up just as many of the reserves as are necessary in the situation.
That might mean a consequential amendment. One would question whether the simple deletion that Deputy Cowan suggests might be enough, in that it might imply the calling up of all or none. As Deputy Cowan says, it is merely a question of mechanics, and if it is made quite clear that the Minister may call up any proportion he wishes, it would be preferable from the point of view of legislation. Frankly, I cannot see any reason for the limitation. It may be that there is some idea of constitutional protection, but let us be realists in this matter. If there is any need to call up reservists at all, it is one of these emergency situations where one has to face hard facts rather than peace-time constitutional law. If that is the position, it is better to be free to face it rather than otherwise. Putting up a façade will neither meet one situation nor the other, but will produce an artificial difficulty that may seriously hamper the Executive in a time of crisis.
On this occasion Deputy Cowan and the House apparently are anxious to give the Minister more power than he asks for. Naturally, I am very pleased to accept that, on behalf of myself and whatever Ministers are prepared to sit here.
The Minister should make sure that he leaves the position in such a way that he need not call out the whole Reserve but may call out such numbers as he thinks necessary.
Amendment agreed to.
I move amendment No. 51:—
In page 51 to delete Section 97 (2), lines 11 to 35.
Amendment No. 51 covers amendments Nos. 52, 56 and 59.
I do not want to argue that at such short notice and I think we might leave it just for the moment because we are really getting into serious matters now. This is what I consider to be the whole kernel of the Bill, as far as it affects the Army, and the Minister will, I hope, be patient with me if I have to examine this whole proposal in rather minute detail. Section 97 deals with the pay and allowances of the Defence Forces. Of course, there is nothing so important to the members of the Defence Forces as the matter of their pay and allowances. When a soldier joins the Army, or an officer is commissioned, his first and most favourable reaction to military service is the fact that on pay-day he gets into his hand, if he is a soldier, a certain number of pounds, shillings and pence, and if he is an officer that, at the end of the month, he gets a cheque, a nice white piece of paper, value for the number of pounds that represents his rank and pay. Anything that is going to interfere with the pay of an officer or soldier is a very serious matter for the Army.
When the original Defence Forces Act of 1923 was passed, there were certain statutory protections provided for the pay of officers and soldiers, and although there were, in 1924 and subsequently, some amendments to the Act, at least those amendments were made by Oireachtas Éireann, and they had to be justified in open debate in the Dáil. The provision, relating to pay and allowances, that was in the 1923 Act, was taken entirely out of the British Army Act that was in operation at that time.
I mentioned, in previous debates, that when the Defence Forces (Temporary Provisions) Act of 1923 was before Dáil Éireann it was introduced hurriedly, and to cover a particular situation. The then Minister for Defence asked the Dáil to give him the Bill and to pass it, and said that, as far as he was concerned, it would only operate for one year, and that after that a permanent Bill would be introduced. The permanent Bill that was to be introduced in 1923 is the permanent Bill of 1951 that we are now discussing. That is important, of course, when one considers ministerial intentions in regard to Bills, because the Minister for Defence in 1923 honestly intended and believed that he would be able to bring in his permanent Bill within the time specified. Circumstances and events interfered, and now we are getting the opportunity of discussing a permanent Bill.
As I have said, the Bill of 1923 was based on the British Army Act, and the protections that were there for the officer and soldier in regard to their pay and allowances were carried direct from the British Act into the Irish Act, and, with the amendments which I have mentioned, have remained there since. Although there was a statutory protection for officers and soldiers, the one ground of complaint that causes annoyance and irritation in the Army is the provisions that were left in the statute in relation to pay and allowances. The interpretation of those provisions has caused irritation and annoyance over a long period, and if I had known that this section of the Bill would be before the Dáil to-day, I could have armed myself from my own files with case after case showing where injustice was done once it was left to the Minister to decide on deductions from pay.
The only protections which the soldier and the officer had were the protections that were bluntly laid down here that the pay could not be interfered with at all in certain circumstances, or only in other certain circumstances. The only genuine protection which they had was where the Act said: "You dare not interfere with pay except in certain circumstances," but where the Act did say that the Minister would have the right to interfere with pay there has been an unjust interpretation of the Minister's powers, and a misuse of these powers over many years which has been unjust to the individuals concerned and harmful to the Defence Forces.
While the British Army maintain, in the law of their country, the statutory protection for the pay of their soldiers, in 1954 we are proposing to abandon those statutory protections and to give the Minister power to prescribe everything in regard to forfeiture and interference with an officer's or soldier's pay. I had hoped that, after the case I had made in regard to this matter at the Special Committee, and after the support I had received from other Deputies who were present, the Minister would have been able to say, when he came before the Dáil now, that he would go back to the provisions that were in the Act of 1923, and that he would bring in such amendments as the House might consider necessary to give effect to the claim for justice that has persisted in the Army since the Defence Forces Act of 1923 came into operation.
Section 126 of the Act of 1923 set out:—
"The pay of an officer or soldier of the forces shall be paid without any deduction other than the deductions authorised by this Act, or any regulations to be made thereunder, or by any other Act of the Oireachtas."
That was clear and precise and there could be no objection to the terms of that section; but, in 1954, we are debating a section which commences: "The Minister may make regulations in relation to the following matters", and I think it is necessary, in order to put it in its proper perspective, to set out the matters laid down in this section. They are:—
"(a) The rates and scales of pay, allowances and gratuities of members of the Defence Forces,
(b) the grants which may be made to members and units of the Defence Forces,
(c) the conditions applicable to the issue of such pay, allowances, gratuities and grants.
(2) (a) The Minister may, with the consent of the Minister for Finance, make regulations in relation to the following matters—
(i) the forfeitures, deductions and stoppages to which the pay, allowances and gratuities of and grants to members of the Defence Forces may be subjected,
(ii) the deductions and stoppages to which grants to units of the Defence Forces may be subjected,
(iii) the disposition of such forfeitures, deductions and stoppages,
(iv) the manner in which and the procedure whereby such forfeitures, deductions and stoppages or any other deductions authorised by this Act are to be made,
and such forfeitures, deductions and stoppages may be made and disposed of accordingly."
Then we have what I term the "codding" sub-section:—
"Every regulation made under this sub-section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next subsequent 21 days on which that House has sat after the regulation has been laid before it, such regulation shall be annulled accordingly but without prejudice to the validity of anything previously done under such regulation."
Then follows sub-section (3):—
"Any forfeiture, deduction or stoppage made under sub-section (2) of this section may be remitted by the Minister in whole or in part."
Finally, we have sub-section (4):—
"References to pay, allowances, gratuities or grants in this chapter shall be construed as references to pay, allowances, gratuities or grants payable under regulations made under sub-section (1) of this section."
That is what the Minister proposes and to do that he proposes to throw overboard the statutory protections laid down in the Act of 1923 which sets out, as I have said, that the pay of an officer or soldier shall be paid without any deduction other than the deductions authorised by the Act, or any regulations to be made thereunder, or by any other Act of the Oireachtas. In other words, when a man joined the Army under that Act, he knew he would be paid his pay except for the deductions laid down in the statute passed by the Parliament of his country, whereas if a man joins the Army after this Bill becomes law, if it becomes law in its present form, he has no such guarantee.
"The Minister may make regulations in regard to the forfeitures, deductions and stoppages to which the pay, allowances and gratuities of and grants to members of the Defence Forces may be subjected." Then there is this clause which deals with the regulation and which requires that every regulation made under the sub-section shall be laid before the Oireachtas. Up to this an officer knew that he would automatically forfeit pay for every day of absence on desertion or without leave—that was perfectly reasonable and he understood it—for every day he is in custody on a charge for an offence resulting in a conviction by a civil court—that, again, was perfectly understandable— and while he is in custody on a charge resulting in a conviction by court-martial unless the court-martial shall otherwise direct. That was the Act of 1923 as it affected the pay of an officer.
Under that Act there were certain penal deductions that could be made from the pay of an officer:—
"(a) the sum required to make good such compensation for any expense, loss, damage or destruction occasioned by the commission of any offence as may be awarded by the court-martial by which he is convicted of such offence;
(b) the sum required to make good the pay of any officer or soldier which he has unlawfully retained or unlawfully refused to pay;
(c) the sum required to pay any fine awarded by a court-martial or the prescribed officer under Section 79 or a civil court;
(d) the sum required to make good any loss, damage or destruction of public property, which after due investigation appears to the Minister to have been occasioned by any wrongful act or negligence on the part of the officer."
That is how an officer knew he was circumstanced under the Act of 1923, but on this Bill being passed nobody will know where he is because it is left entirely to regulations, and I think the Minister will agree that the Department of Defence has not the happiest record in the matter of regulations. Where the Department, even under the 1923 Act, got authority to issue regulations, they did so, and the moment they were out, if something was found wrong with them, there was an amending regulation and a subsequent amending regulation. I think I could say with truth that there have been thousands of regulations issued by the Department of Defence since the 1923 Act was passed and that most of them have been amendments of previous regulations.
The whole departmental record has been one of dissatisfaction in regard to regulations. Perhaps that is too mild a way to express it but I do not want to put it stronger. Nobody knew where he stood under the Defence Force regulations, and particularly Defence Force regulations in so far as they had anything to do with pay or with allowances, because the moment an officer or a soldier established that he had a claim and that he was not caught by a regulation the Department of Defence issued an amending regulation to catch his comrades on the same point. Is it any wonder that if I can speak with knowledge and experience of that position for many years I would object to what is being done here to throw overboard the law as it is laid down in an Act of Parliament and to give instead to the Department of Defence powers to interfere with the pay and allowances, gratuities and grants of officers and soldiers of the Defence Forces?
I mentioned the protection that was for officers under the old Act. There was also protection for soldiers. A soldier knew that his pay would be paid in full and that it would only be forfeited in circumstances that were laid down in the Act of Parliament. First the soldier forfeited pay for every day of absence on desertion or without leave, for every day that he is in custody on a charge for an offence resulting in a conviction by a civil court; whilst he is in custody on any charge not resulting in conviction by a court-martial unless the court-martial shall otherwise direct; while he is in custody on a charge of absence without leave; for every day on which he has been awarded detention by his commanding officer; for imprisonment awarded by a court-martial or civil court; and for every day of detention awarded by a court-martial or his commanding officer. In 1924 there was a further addition made to that by this House, that for every day he was in hospital on account of sickness certified by the appropriate medical officer attending on him at hospital to have been caused by an offence against this Act committed by him and of which he has been found guilty by a court-martial or a commanding officer.
A soldier, as I say, up to the moment, knows that his pay will be forfeited and he knows that it is his own Parliament that has laid down that, and that if anybody attempts to forfeit his pay otherwise than in accordance with what is laid down by his Parliament he has the right to go into the courts and then state in the High Court and to get a declaration that that pay was unlawfully withheld and to obtain an order that it must be paid to him. Those are rights and protections that were given to him under the old Act and which the new Act proposes to throw overboard altogether, and to leave to a Department with the record the Department of Defence has for issuing regulations the right to make regulations governing the conditions under which the pay of that officer or that soldier will be interfered with.
Under the 1923 Act a soldier also knew that in addition to forfeits he was subject to certain penal deductions, that he was subject to deduction to pay compensation for any damage. I do not want to go into it in full because it is rather lengthy. He was required to make good such compensation for any expense, loss, damage or destruction occasioned by the commission of any offence as may be awarded by the court-martial in which he is convicted of such offence, or, where he has confessed the offence and his trial is dispensed with, as may be awarded by a competent military authority; any loss or damage or destruction done by him to arms, ammunition, equipment, clothing, instruments, regimental necessaries, buildings or property as may be awarded on proper investigation by his commanding officer or by a court-martial provided the amount does not exceed £10. He was liable to make that good. But in both these cases up to the present they could only be deducted from him if his commanding officer or a court-martial or the competent military authority where he has confessed and his trial is dispensed with has set down the amount that he can pay.
He was also required to pay his share of barrack damages provided the barrack damages were done or occasioned by the wilful act or negligence of a person in the unit to which he belonged while the unit was in occupation of barracks and he could not be identified. That is one of the sections I will come to later because it is one of the sections that applies. There was a very substantial protection there in regard to barrack damages provided the provisions of the Act were adhered to. The damage had to be wilful damage or negligence in the legal sense of a person who could not be identified belonging to the unit during the period the unit was in occupation. He had to pay the sum required to pay a fine awarded by a court-martial, his commanding officer, his company commander or a civil court; and in another case where he was the putative father of an illegitimate child he was bound to make certain provision.
There was a statutory protection that the deductions would not exceed two-thirds of his pay in any one week. There was a whole code of law in relation to pay and allowances laid down in that statute and in the amendments that were subsequently made to it. The whole effect of the law was that a man was protected in his pay and in his allowances and it is only right—I am sure the Minister and the House will agree with me—that whatever else we do, this House should ensure that the pay of the officer or the soldier is protected and that it will not be interfered with unless under very precise and limited conditions that we ourselves lay down.
Notwithstanding the protection that was there, there was the interpretation of certain sections that the Minister was given power under that Act to oblige an officer or a soldier to pay certain sums; for instance, in the case of an officer, the officer would be bound to pay the sum required to make good any loss, damage or destruction of public property which, after due investigation, appears to the Minister to have been occasioned by any wrongful act or negligence on the part of the officer. That was the one sub-section which gave the Minister power to interfere with pay for that specific purpose, and it is the misinterpretation of that power that has caused all the petty irritation to officers and men over the years.
We are aware of cases under that section where the gravest injustice has been done to officers and men. Such is the mentality that has developed in relation to that sub-section, that officers and men have letters addressed to them from superior authorities asking them to show cause why the Minister should not be asked to make an Order against them deducting certain large or small sums from their pay. I could mention hundreds of cases in relation to that.
I hoped that with the experience of the years some equitable code in relation to the interpretation of that sub-section would be developed. It is because it has not developed in relation to the little matter which was left to the Minister under the other Act that I am so strongly opposing the idea here of giving the Minister power to decide everything. Quite recently I came across a case where a particular officer was sent to do a job of work. He had scarcely arrived on the job when he was ordered by a superior authority to go elsewhere. Another officer took over from him. There was a third officer concerned. I understand that certain stores were received in bulk— a very large quantity of them—and when the official check up was made there was a matter of something approximating to £2 in question in this very large consignment. It should have been a very simple matter to find out who was at fault, if anybody was at fault, and to find out if, in the handling of such an enormous cargo, anything should be done about this trivial amount. Some gentleman took it upon himself to come to the conclusion that all three officers were responsible for the loss and that all three should be asked to show cause why the Minister should not make an Order deducting one-third of £2 from their pay. Imagine the predicament of the officer who was first sent out to do the job and had scarcely arrived on the scene when he found himself transferred elsewhere. What responsibility would he have? Why should he be asked to contribute if a superior officer took him off the job and sent him somewhere else since there could not be any proper handing over of duties, responsibilities or anything else?
Now that is the way this has developed and grown and the person who had the nerve—and nerve is what I call it—to come to a conclusion such as that had also the nerve to say that the regulations governing these matters did not seem to be in order and would have to be tightened up. It is now proposed to ask the Minister to make an Order where the regulations are admitted to be defective. From an administrative point of view perhaps some question might arise although I am sure that if the matter was investigated no question of deduction would arise. We have reached the stage where if there is the slightest loss someone has to pay for it and the search then is for the unfortunate individual on whom the authorities will pin the responsibility; they will ask him to give reasons why the Minister should not be asked to make an Order deducting certain sums from his pay.
The section as it was in the Act laid down:—
"The sum required to make good any loss, damage or destruction which, after due investigation, appears to the Minister to have been occasioned by any wrongful act or negligence on the part of the officer."
I would imagine that the normal interpretation of that would be that after examining all the circumstances the Minister would come to the conclusion that a particular officer should be asked to make good a certain sum of money. But that is not what happens in fact. Before the matter ever comes to the Minister the officer is asked by someone who has no authority good, bad or indifferent, to show cause why the Minister should not make a deduction from his pay. I have seen that development with all the consequential petty irritation, annoyance and injustice. Will I calmly sit here as a member of this Legislature and allow this House to throw overboard the protection the officers and soldiers have and put in its place a section which gives full and unlimited scope to the Minister? When we say the Minister we mean, of course, the Minister's advisers or, as he called them yesterday, his experts, who decide that they will interfere in that unjust way with the pay of officers and soldiers.
As far as I am concerned as a member of the Dáil, and as far as the Dáil is concerned, this is the most vital matter in this whole Bill that comes before the House. I cannot see why the Minister wants to abandon the system which has worked well, with the exception of this sub-section in which the Minister is given power and wants to give an opportunity to his officials to make life unbearable for the officers and soldiers in the Army. It is a very strange thing that, although the Department of Defence is officered by officers, by soldiers and by civil servants, we never see a regulation made to deal with the civil servants. When they make blunders involving hundreds or thousands of pounds, there is no regulation saying that they will be subject to the Minister and that the Minister may make a regulation to make deductions from their pay. That is what I very strongly object to.
I ask the Minister at this late stage to agree that, where the system in regard to pay and allowances and penal deductions has worked well, to leave it there, but to amend the only sub-section which has caused trouble, instead of making the sub-section which has caused trouble the governing section giving the Minister power to do everything in regard to pay and allowances. The Minister has endeavoured to amend his own provision somewhat, but that is not sufficient. I have endeavoured in a subsequent amendment to reinstate the position as it was and to try to improve the matters to which general exception has been taken over a long period.
I should like to know what is the purpose of this new Bill. For 30 years, in every Dáil Session some member has asked the Minister when he proposed to bring in the new Bill and for nearly 30 years, certainly for 25 years, the answer has been given that the Bill is in course of preparation and will be introduced at an early date. Why did the people want a new Defence Bill? They wanted a new Defence Bill so that they would have an opportunity of examining it in detail and of endeavouring to make provision whereby officers and soldiers would receive their pay and allowances as they became entitled to them and so that an opportunity would be given to the House of amending the particular provision to which exception was then being taken. That is why the question were being asked.
The Army has been looking for a new Bill for a long time, but not for a new Bill just to tighten up the provisions a whereby the Department of Defence could interfere with the pay and allowances of the officers and soldiers. That is not why the Army wanted it. I am inclined to think that the putting in of this provision in the way it is here in Section 97 was done deliberately and with some contempt for our parliamentary institutions as well as for the Defence Forces. There are circumstances in which it is agreed that it may be necessary to have these powers of regulation. It may be necessary where Parliament cannot deal with matters in a full way. It has been found expedient to give Ministers power to make rules and regulations, but that has always been considered an invasion of the rights of Parliament and something to be adopted only in special circumstances. But here, where you had, in fact, Parliament governing these matters as it did in 1923, where the only item in dispute was one matter, we have the Department preparing a Bill in which they throw the thing overboard, as I said, and put in these few lines giving full right, power, authority and responsibility to the Minister to do what he likes in regard to pay.
The Minister will say to me that Deputy Cowan knows that he himself would not do anything unjust. Of course I know that, but I have not the same high opinion of persons who may be Ministers in the future as the Minister has. I know that some of them are likely to be lazy, to sign whatever is put in front of them by their officials. I know that some of them will be reckless. I know that some of them may be biased. I know that some of them may have, as Ministers of Defence have had in the past, a malicious approach towards matters that concern the Army. Because I have seen these things in the past I want to provide against them in the future. I have said it to-day on another section that as far as the Army is concerned it would be better if this Bill never passed this House than to pass it with that section in it. If I can by debate or by argument impress on the House the advisability of setting out clearly in the Act where an officer's or soldier's pay is to be affected—and only to be affected—then I feel that I will be doing some good. I ask the Minister as a Minister who obviously has the concern of the Army at heart to agree to meet the viewpoint I am expressing here. The viewpoint I am expressing is not a point of view that is in any way prejudicial to the Minister as Minister. It is a viewpoint expressed because of the knowledge and experience I have of matters affecting the officers and soldiers of the defence forces and because I have seen over a long period injustices such as I have mentioned already.
The Minister can say that it would be too difficult to set them out in an Act. That defence is gone because it has been set out for the last 30 years in an Act. It is set out in the British Army Act, so that there is no difficulty in prescribing it here. Here there is no difficulty, and where it is so important why cannot the Minister agree to do it?
The Minister knows, and most Deputies in the House know, that where you have a disgruntled Army, a dissatisfied Army, the nation is not getting from it—and cannot expect to get from it—the service that the nation is entitled to expect to receive from an Army. If there is to be a continuation of this pin-pricking of officers and soldiers in regard to their pay and allowances there would be nothing but irritation, dissatisfaction and grousing from one end of the Army to the other. We can here altogether, Minister and Deputies—and Senators when the Bill reaches the Seanad—make sure that there will be no possibility whatsoever of the state of affairs developing that I visualise developing and which must inevitably develop if the section in its present form is passed.
The Minister knows the trouble and the expense he has in trying to recruit a sufficient number of soldiers for the Army. The Minister knows that a very little matter of dissatisfaction can cause 20, 30, 50 or 100 soldiers in a unit when their term of service expires to refuse to take on for a further period. The Minister knows that every soldier who leaves the Army dissatisfied is an enemy of recruiting for the Army: that when he goes home to his local area and participates with his local football or hurling club, or goes into the local public-house at night to have a drink and meets his boy friends on social occasions or in the course of work or business, that man, if he leaves the Army dissatisfied, will be sufficient to prevent a whole area from having anything to do with the Army. If from every part of the country you have men leaving and saying that their pay can be taken away from them by regulations made by the Minister, by interpretations placed on those regulations by officials who have not the broad view that a Parliament ought to have in regard to matters of this kind, then we find a whole general feeling and tendency against the Army and against the Defence Forces.
There was a time when even the pay of an ordinary tradesman and worker was interfered with by their employers. Deductions were made for this, that or the other and it required Parliament by an Act to prevent any deductions being made from the pay of the ordinary worker. Now, if that is the case in regard to the ordinary workers so much more so should it be the case in regard to soldiers who receive a considerable amount of their emoluments in kind, either in food, clothing or accommodation, and who only receive portion of their emoluments in cash.
I have endeavoured not, I would say, in the briefest manner possible, but I have endeavoured to picture to this House the state of affairs that will result if the new idea in this new Bill is adopted and if we throw overboard the protective sections that we had in the old Act. If I could see any reason for this, any genuine or valid reason, obviously I could not be so strong in my objection to it, but I see no valid reason. I can see the reverse, a departmental desire to get control of the souls and bodies of the men who serve the State in arms. That is what I object to. The Minister may say, as he has said on other sections and as has been said previously, that the regulations that he makes will be laid before this House. I do not want to repeat what I said many times in the House that that is no use, that when the Minister has made a regulation it is impossible for the Dáil to change it. I do not think I ever knew of a case where Dáil Éireann defeated or annulled a regulation placed before it by the Minister or a Government. If it did, it would be tantamount to saying to the Government: "Resign." The position we are then in is this— that Deputies who would support the Government and who wanted to keep the Government in office might feel that a matter of soldier's pay was not the issue on which they would vote against the Government, bring about a dissolution of the Dáil and a general election. I say that, no matter what Government happens to be in power. So that there is no protection there.
Anything the Minister may want to do he can do in that regulation. The trouble is that if it is found in practice a regulation made reacts too favourably on behalf of an individual or a group of individuals, then an amending regulation will be brought in in the simple machinery of amendment before each House and by a simple vote adopted, whereas if there was to be an amendment of the Act in regard to pay or allowances, then the Bill introducing that amendment would have to go through all its stages in this House and in the Seanad. It would be subject to amendment and there would be many opportunities of pointing out to and impressing on the Minister, both in this House and the Seanad, that the proposed amendment might not be desirable.
As I said at the outset, I look on this as the most serious part of the Bill before the House. I have in regard to it a feeling of helplessness. I know the Minister is going wrong, that he is doing wrong in introducing this machinery to deal with pay. I know that but the difficulty is to convince the Minister that he is so doing. If the Minister would say to me: "Very well, I accept your amendments. I will agree to reinstate the provisions in the old Act to which no objection is taken and I will introduce an amendment to deal with the principle of the one sub-section to which objection is taken and we can debate that in the House," then I think that this Bill could be law in a reasonably short time.
If the Minister is adamant in sticking to this idea of regulations; if the Minister is adamant, notwithstanding what experience says, in going to provide that he or whoever may succeed him may deal with forfeitures, deductions and stoppages, then I think it were better for the Defence Forces that this Bill was never introduced.
I spoke at some length on this matter and I did so because I am concerned very seriously about it. There are thousands of soldiers concerned. Soldiers who serve now and who will serve in the future under this Bill are all concerned with it. The military profession which had its safeguards and which has been built up in this country as something to be proud of is going to be affected by this. I should only hope that the Minister would see the sense of the proposition I am making, that he would see the sense of the submissions I am making and the wisdom of my appeals. If he did, I am perfectly certain he would agree with the amendments I have moved.
First of all I would like to say that the Minister's advisers are the hobgoblins of Deputy Cowan's mind. They appear to haunt him in his waking hours. I do not know what they may do in his sleeping hours but certainly since this debate began he has made it very clear to me and to any of the other members of the House who were listening to him throughout this resumed debate, that that is so. He is not paying much of a compliment to me—I am not looking for compliments—and he is not paying many compliments to the people who might succeed me when he assumes, as he assumed throughout this debate, that everything in this Bill was done by civilian authorities and that the Minister, so far as he exists at all, exists only in the form of a rubber stamp or something equivalent to that. I have come to realise that there is no Defence Bill that I or any other Minister for Defence could bring in which would satisfy Deputy Cowan.
I think that is questionable.
The only Bill that would satisfy Deputy Cowan is Deputy Cowan's Bill and until he can get into my position or the position of my predecessors he will have to be satisfied with what is brought in by the Minister who is here.
This Bill was brought in by my predecessors. It did not get very far and we did not have an opportunity of discussing it beyond the Second Stage. It was altered in many respects since then. It was altered in Committee. I think that Deputy Cowan himself will have to admit that many of the points which he made in respect of this Bill and many of the propositions which he put forward were met by me in ministerial amendments. They were met merely by reason of the fact that I myself was satisfied with the case the Deputy made. It was on my instructions that the Minister's advisers got down to preparing the amendments in draft form and as far as the Minister's advisers are concerned they will merely carry out the instructions the Minister gives them. It does not matter a button to them whether the Minister accepts their viewpoint or not. That is his responsibility and he will have to accept whatever may occur as a result of his decision. The Minister's advisers will not have any cause to worry because of what may occur in consequence of that.
I only say that because I think the Deputy is obsessed by the belief that there is in the Department of Defence some kind of coterie, clique or group of individuals who are at war with the members of the Army, and especially at war with the rank and file of the Army. Such, of course, is not the case. The men who are dealing with this matter are just as human as Deputy Cowan or any other Deputy and would be just as anxious to do justice to the men of the Army as any member of this House would be, including Deputy Cowan. Why he singles out these individuals for that kind of treatment I find it difficult to understand.
Deputy Cowan seems to have the impression that the Army knows nothing whatever about what is going on, that these regulations and these sections in Bills are being inflicted upon them without any knowledge whatever on their part. The Defence Bill was referred specifically to the military branches at the various stages in its preparation and drafting. It has been submitted about five times since 1949. It has been continually under examination in those branches and proposals for amendment have been put forward from time to time. A set of printed debates of the Dáil Special Committee was sent to the Adjutant-General, who was requested to arrange for an examination of the debates by the military branches. Copies of these debates were also circulated to the various military branches in the usual manner. The matters raised in the Special Committee debates were discussed between members of the military branches and the secretary's branch, and amendments proposed on the Report Stage of the Bill were agreed upon at these discussions. There was no stage up to the present at which the military were not kept completely and fully aware of the course and trend of the debates on this Bill.
Deputy Cowan is not doing himself a service in exaggerating the case in the manner in which he appears to be doing. He is not taking any account of the efforts I am making here, by the amendments which I, myself, am proposing, to meet some of the requirements in this case. In amendment No. 51 (f), with which we will be dealing in due course, we are going out of our way to meet, to some extent, the requirements which Deputy Cowan suggests should be met. We are there naming the headings under which these forfeitures, and so on, could be made. Forfeitures of and deductions from the pay of Army personnel fall under two main headings.
(a) Non-penal Deductions—These are made to repay the State for articles or services provided. Examples are, issues of food, clothing, etc., on repayment, rent, laundry and haircutting charges. Deductions are also made to enable a portion of the soldier's pay to be paid to his wife and, of course, amounts by which he has been overpaid are also deducted.
(b) Forfeitures and Penal Deductions.—These are penalties incurred because of some fault or omission on the part of the person concerned.
Deputy Cowan does not in his amendment make any provision for the making of non-penal deductions, either in the Bill itself or by regulations to be made under it. On that score alone his amendment cannot be accepted because it must be obvious that such day to day non-penal deductions must be made. This is not, however, the main question at issue. The real issue is whether the circumstances in which forfeitures of and penal deductions from pay should occur should be provided for in detail in the Defence Bill itself or by regulations to be made under the Act in due course. Deputy Cowan, in the course of his remarks, talked about the gravest forms of injustice which resulted from some of these penal deductions. That, again, is a direct reflection on the Minister. The Minister would have to be of the lazy type he describes, who would not be doing his business, who would be accepting everything that came before him and sign on the dotted line without any consideration as to what he was signing. I wonder if there is such a person.
The Minister knows it is possible to find him.
I am wondering if there is, in fact, a person in a responsible ministerial position who would just sit down and do that. I have the gravest doubts as to whether it is a fact or not.
I would not like to discuss that in public.
That is your viewpoint. It is not mine. I have been responsible for the signing of numerous ministerial Orders over all the years in which I have had the honour to be Minister for Defence. Every one of those ministerial Orders was generally in regard to some wanton type of damage that was caused by the individuals against whom the Orders were made. The report emanated from the source right down beside the event and graduated until it came to the Minister and the details were there, giving fact for fact in respect of the particular damage caused. I do not know whether Deputy Cowan is implying that the officers, non-commissioned officers and the various people who had to make statements in respect of these things were telling falsehoods or not. I am prepared to believe they were merely describing the facts and, if in my opinion the facts were such that the ministerial Order should be signed, I had no hesitation whatever in signing it. I want to point that out in order to show that the Minister has responsibility in respect of these Orders. There were numerous occasions on which I made amendments to these Orders, where a sum of money, perhaps a reasonably large sum when you come to relate it to a private soldier— £5 or something like that—might have been involved. Where, in my opinion, the fine was too heavy, I had not the slightest hesitation in reducing it— when, after having read the evidence submitted to me, I was satisfied the fine was too heavy. On numerous occasions I had no hesitation whatever in removing it completely and entirely.
I want to impress upon Deputy Cowan especially, and also on the members of the House who have been listening to Deputy Cowan, that the position is far removed from what the Deputy himself has been suggesting it is.
The decision to change over completely to the regulations system was taken by one of my predecessors in 1949. While the decision was based mainly on administrative considerations there are ample precedents for dealing with such matters by regulations rather than in legislation. In this country, for example, forfeitures and penal deductions in the case of the Garda Síochána are dealt with by regulations made by the Minister for Justice (with the concurrence of the Minister for Finance) under Section 12 (1) of the Police Force Amalgamation Act, 1925. The British, in spite of having these provisions in their Army Act, deal by regulations with forfeitures and deductions in the case of the Navy. So they are not wedded to that system any more than we are. That this procedure is now the modern trend in other countries is indicated by the fact that the Canadians adopted the regulations system in their National Defence Act of 1950. I made that clear at our discussions during the Special Committee debates. I do not think I impressed Deputy Cowan——
You did not convince me.
——because the Deputy had some idea that there was some sinister influence in the Department of Defence. I think that, on that occasion, he actually named or almost named that person, but, again, I think he was wrong and that he was allowing that idea which he has that there is always some sinister influence at the back of these things, to influence him in his viewpoint.
The point has been made in the Special Committee by Deputy Cowan that if these matters were dealt with by regulation the point of view of the Finance authorities would prevail and that variations would always be for the purpose of making it easier to effect deductions and stoppages. It might be well to describe briefly the actual machinery by which regulations are made. When the need for a new regulation arises a preliminary draft is submitted for approval to a regulations committee, consisting of the Deputy Chief of Staff, Deputy Adjutant-General, Deputy Quartermaster-General and two senior officials of the secretary's branch. Deputy Cowan can see there that every section of the Army is getting an opportunity of investigating it. If approved by the committee the regulation is then circulated individually to the Chief of Staff, the Adjutant-General and the Quartermaster-General. If they approve it is submitted for signature by the Minister, and if it has financial implications, for signature also by the Minister for Finance. While the ultimate decision to make a regulation rests with the Minister, therefore, it will be seen that the military authorities have ample opportunity of expressing their disapproval if they consider a proposed regulation is unjust.
The argument has also been advanced that the soldier's interests are better protected by having these matters dealt with in legislation. It is difficult to believe that any Minister for Defence would ever attempt to worsen the soldier's position in regard to these matters without full justification. If, for any grave reason, it might be necessary to do so, it would be done irrespective of whether it would mean new legislation or an amending regulation. I still feel that the regulations system is preferable from the point of view of flexible administration. I am, however, prepared to admit the desirability of providing in the Bill the maximum safeguards for the soldier consistent with the necessity for leaving matters of detail to be dealt with by regulation. In my amendment, No. 51 (f), I propose, accordingly, to insert in the section the general headings under which regulations can be made governing forfeitures and deductions and also to include a provision limiting the rate of deduction. These limitations of the power to make regulations, together with the provision that all regulations governing these matters would have to be laid before each House of the Oireachtas and be capable of annulment, in my opinion provide ample safeguards for the soldier.
I do not think Deputy Cowan is advocating that we should not penalise irresponsibilities. I do not believe for a moment that he would stand over that sort of thing. However, in the case he has been making, he has almost been suggesting that there should be no forfeiture, penal or otherwise. If a soldier who has charge of valuable State property, in the form of a motor-car or some other piece of equipment, damages that equipment through irresponsibility, through carelessness or through some other cause, and if it is proved to have been caused through negligence on his part, he should have to pay some part of the cost of that damage. Here, I want to say also that the ministerial Orders which deal with that type of damage never in any circumstances come near the actual cost of the damage proper. As far as my experience goes, the fine is infinitesimal in regard to the actual cost of the repairs of the particular type of machine damaged. Therefore, from every possible point of view, I can give the House the assurance that the Army personnel examine every one of these regulations. If they have any case to make against the form of a regulation, the Adjutant-General can see me about the matter. He has audience with the Minister, at his own request, at any moment and, in fact, he interviews me several times during the day. If he has any case to make against the form of a regulation he can come along and make his case as man to man. When a case is made of such a character that I am satisfied it is a good one, naturally I have no hesitation in meeting him as far as it is possible to meet him. I feel that every individual occupying that position would be quite prepared to do as I do. I have no hesitation in saying that at all.
I have sufficient faith in my fellowmen to believe that, in these circumstances, there is hardly any individual who wants to go out deliberately to penalise another and I am pretty certain that no member of the Army wants to inflict unnecessary penalties on a fellow-soldier. If they have a painful duty to perform they perform it and they do it honestly. It is their duty to do that. If it were otherwise, I wonder where we would get. If a man, because of sentiment or for some other reason, decided that he would not make an unfavourable report when he knew it was his duty to do so, what sort of Army would we have or what sort of organisation would we have anywhere if that attitude were to be adopted?
You must have complete confidence in the people who are dealing with these things. It may be a painful duty but it is a duty which is carried out. In the main, these orders emanate from the source right up along and there are numerous people who can check, and who do check, as I can see from perusal of the files, and make alterations and recommendations before the final recommendation reaches me.
I would like if Deputy Cowan would meet me as far as is possible. I do not want to force my views on him but I am satisfied from a thorough examination of this whole situation in respect to this particular section that we are not inflicting hardship on anyone. We are making regulations which will ensure as far as regulations can ensure through the section, and later through the regulations which will arise out of the section, that we will have that form of discipline in the Army which it is so necessary to preserve if we are to have an Army that is going to be of some credit to the nation.
Does the Minister also agree that it is a simplified method of dealing with administration of that type? It simplifies it.
I think it is as simple a form as you can get.
I hoped that I might have some support on this matter from Deputy MacEoin but, of course, I can see his difficulty.
Not a bit.
It is the same difficulty as the Minister is in, that this Bill was on the stocks, apparently, since 1949 and that this provision was in it in 1949. I wanted to say first and foremost in regard to what the Minister says about a matter such as this that I do accept the position of ministerial responsibility and that it is the Minister who is responsible for everything he introduces or advocates and not his advisers. I know that the Minister is undoubtedly responsible for the amendments which he moves and not his officials. Naturally, I do not assume that everything that is done in the Department of Defence. I know enough about the machinery there to know that that is not so. I do take issue with the Minister when he says that I have to be satisfied with what he does. I know that the Minister did not intend that in regard to the principle of parliamentary responsibility.
Did I say that?
The Minister said that but I know he did not intend that. Every Deputy is in the position that his responsibility in this House is to his constituents and to his conscience. If I thought that a wrong line was being adopted and if I were to say nothing about it I would be a very poor type of representative. Parliamentary Government and constitutional responsibility owe a good deal to individuals who did not see eye to eye with everybody else and who maintained a particular point of view and fought for it at every angle. It will be agreed that a considerable amount of constitutional progress and democratic development is due to the people who had that frame of mind and who were not afraid or unwilling to advocate what they thought was right.
Because of something the Minister said on Second Reading, I was very keen to find out who, in fact, in the Army considered this Bill. The Minister has told us to-night that it was continually under attention in the military branches of the Department of Defence. I had discussed this matter with many people who, I knew, had very sound views in regard to Army administration and I was very much surprised to find that they knew nothing about it except what they read in the newspapers. I addressed a parliamentary question to the Minister asking whether particular named officers in particular appointments, like the officers in command of Commands, the officers in charge of the Military College, the officers in charge of particular corps, the various Command legal officers, the officer in charge of the Recruit Training Depot, officers in charge of battalions—the people that I would consider to be the practical, working officers of the Army—had at any stage been consulted or had given their advice in regard to this Bill. On the consideration of ministerial responsibility, the question was ruled out of order. In other words, I was not entitled to that information. I was not entitled to obtain it by means of a parliamentary question. Certainly, I would have been very anxious to know whether officers holding the responsible appointments that I mentioned, had, in fact, been consulted and had, in fact, given their consent to the major alterations that are made by this Bill and particulrly by the section that is under discussion.
I am assured now that the Bill was discussed by what I term the regulations committee of the Department of Defence, with representatives of the civilian side, and that they had agreed to this procedure—in other words, they had agreed that the procedure should be recommended to the Dáil. That shows that there was some military consideration of the Bill, that there was some other consideration in regard to it and that there was some ministerial position. The Minister says that at no time were the military not concerned with this Bill. I assume that he means by that that the military authorities—I would certainly be anxious that should be on record—who are in fact the Chief of Staff, the Adjutant—General and the Quartermaster-General, have agreed to the alteration that the Minister proposes— in other words, that the heads of the Army have agreed that the statutory protection which exists in the old Act for officers and soldiers is to be thrown overboard and that in the future officers and soldiers are to be subject to regulations that are to be made by the Minister, with the consent, of course, of the Minister for Finance. It certainly comes as a surprise to me to learn that those very senior officers of the Army would consent or agree to such an alteration in the military law governing pay and allowances. If the Minister says that that is so, we have to accept that. As I say, it comes as a surprise to me and will, I am sure, come as a greater surprise to the officers and the soldiers in the Defence Forces.
I take account of the efforts the Minister has made to meet proposals that I made in the Special Committee. I appreciate very much what the Minister has done to meet me. My regret is that on what I consider to be very fundamental matters he has not advanced to the position that I advocated. There was a matter which might have come under discussion here, in which it is proposed to provide for the suspension of officers. I was very pleased indeed when the Minister announced here this evening that the amendment I proposed, to delete that provision, was acceptable to him. I take considerable pride in at least achieving by my recommendation and by means of this amendment, the elimination from the Bill of that particular proviso.
The Minister mentions the cases in which the Minister for Defence deals with what he terms the wanton type of damage. He says that when that comes to his notice he would have no other course open to him as a person of responsibility than to order a particular officer or soldier guilty of that wanton type of damage to pay a certain sum in compensation. Let us examine that just for a moment. The Minister receives certain documents, a file in which there are certain reports which would indicate that a particular person was guilty of what he describes as a wanton type of damage; and in that case he orders—and, he says, properly orders—the forfeiture or penal reduction of a certain sum of money from the pay of the officer or soldier concerned. We all know that when it is a matter of documents, documents are untrustworthy. We all know that, even in cases of the gravest nature before the civilian courts, before the Central Criminal Court, depositions— in other words, statements of evidence made on oath—may clearly indicate that a person is guilty of a charge, but the trial of that matter, where that person is defended, may and very often does result in the acquittal of the person concerned. In those cases, there is the sworn evidence of individuals on the depositions, and although they may appear to convince a person of responsibility that the accused in that case is guilty of a very grave offence, a jury trying the case in accordance with law may come to the conclusion that that person is not guilty of that offence at all.
That is the major objection I have to penal deductions of that nature, made against officers and soldiers, by a Minister sitting in his office with nothing in front of him except a file of reports which have not been subjected to any examination, to any test or to any cross-examination. Obviously, there are very strong grounds for doubting the justice of any such procedure. That is why I had been looking forward for many years to the opportunity of amending that particular clause in the Act to provide that there would be some form of a judicial determination of the allegation against the officer or soldier concerned. I find now that I am completely stymied by the new procedure adopted which gives the Minister power not only to deal with that particular matter but with every other matter relating to an officer's pay and allowances and to a soldier's pay and allowances, so that in the matter of what the Minister describes as a wanton type of damage the House can see that the Minister takes one approach and that I take another.
The Minister takes the approach that, if the papers submitted to him show that the person is guilty of wanton damage, he will order him to pay a certain sum in compensation. My view is that, no matter what the papers say, the person concerned should have the opportunity of contesting that before some form of a judicial body which would have the right, after going into all the facts, to come to a proper conclusion on them. I think the Minister will appreciate that, in taking the line I am taking, I am not obsessed with the belief that some group in the Department of Defence are out to do damage to members of the Army. I am not obsessed with that idea, but I have a firm fixed idea in my own mind that a routine procedure over the years has been responsible for bringing about a state of mind in the Department of Defence that seeks out, first of all, for the means and the opportunity of mulcting somebody somewhere instead of looking the other way, of trying to dispose of any allegation of that kind against an officer or a soldier unless there is conclusive proof that it should be referred to some judicial body to examine it fully.
That is the line that I take. It is a line which is completely in conflict with the Minister's view. The line that I take is not taken for the reasons which the Minister suggests. I take that line because of my experience over many years, as a person who, over the years, even since I ceased to be officially connected with the Defence Forces, has been asked for advice on matters of the kind which affect the pay of officers and soldiers. I have had experience where attempts were made to deprive officers and soldiers of pay under the particular provision, and those attempts were discontinued when certain intimations were submitted to the Department, but the result afterwards was an amendment of the regulations to ensure that nobody in similar circumstances in the future would be able to escape by putting forward a legal defence.
Perhaps, if I did not know of these things I might not be as strong in my opposition to what is now proposed, although the Minister and the House will agree that on every occasion since I became a member of this House on which it was proposed to deal by regulations with matters that in my view should be dealt with in the statute, I have always opposed that. It did not matter what Minister introduced it, or what Government it was that introduced it, I have opposed the provision of regulations where the matter could be set out quite easily in the statute.
The Minister says that he has ample precedents for what he is doing. His first precedent is the Police Forces (Amalgamation) Act of 1926. I ask any Deputy, could a more unfortunate example be put forward in this House as a precedent than that? I would ask anyone who would like to enjoy himself for an hour to take that Act and look at the disciplinary provisions that are in it. Some deal with the most amusing offences. Tippling, I think, is one of them. I have had on one occasion in this House to bring to the notice of the then Minister for Justice the case of a sergeant who was charged under that particular Act with neglect of duty. I forget the other words which follow in the section, but he was charged with neglect of duty because he had brought no charge against anybody within the preceeding 12 months. I had to draw the Minister's attention to that some years ago, and that is to be brought forward by the Army authorities as a precedent. I thought that the Army was above that, and that our conceptions of justice were above the conceptions that are in that Police Forces (Amalgamation) Act of 1926. I have never read a more crude statute than that, and I certainly never thought that I would live to see the day on which anything that is in that statute would be brought forward as a precedent for the Defence Forces. I think that the Minister's advisers could have given him a better precedent than that. Then I am told that there is something in the British Navy about regulations. I do not know. I have to admit that I have not, in my perambulations, got into navy law. I do not think that the Army here should have got into navy law either.
Then I am told there is another example—the Canadians adopted it in 1950. I should like to study the Canadian Act prior to 1950 and the 1950 Act; but obviously, what relates to Canada cannot, without the most thorough examination, not only of the statutes but of the history of their Defence Forces, be accepted as being properly applicable here. I know nothing now about the Canadian Defence Forces. I remember some years ago when it was part of my functions to study the organisation and training methods of the armies of the countries then known as the countries of the British Commonwealth. It was part of my official duty to do that, but at the time I did not probe into the laws governing these Defence Forces.
When dealing with a matter of this consequence, it is not sufficient to say to the House that the Canadians adopted it in 1950. It should be the duty of the Minister to say: "This was the position in Canada prior to 1950. This is the precise thing they adopted in the 1950 Act and they adopted it for these reasons" and the reasons should be set out. I do not think the Minister convinced the House when he kept his precedents to the Police Forces (Amalgamation) Act, some parts of the law applicable to the British Navy and to what the Canadians did in 1950.
The Minister says it brings about more flexibility. What does that phrase, "more flexibility", mean? Is it flexibility in favour of the soldier or officer or against him?
I should say in favour of the soldier and the officer.
The only comment I want to make on that is that if this country was governed by flexible laws, we would be in a very funny position. I know of no country that is governed by flexible laws—certainly no democratic or civilised country. Laws cannot be flexible.
Surely they are made flexible by amending legislation?
No. The inflexibility is somewhat altered by amending legislation but they are still inflexible. Laws must be inflexible. Everybody must know what the law is and nobody can take the line that the law is this now and that to-morrow, or that it is this because you have so much money and that because you have not so much money. The law must be very clear, specific and distinct and there can be no flexibility about it. There can be no flexibility which suggests that the rights of the officer or soldier to his pay can be interfered with. I know the Department of Defence wants flexibility so that it will be flexed to suit their own conceptions of what the soldier or officer should be subjected to. Deputy MacEoin suggested something on the same lines—that it brought about simplicity.
Not flexibility.
That is the difference. The Minister wants flexibility and Deputy MacEoin wants simplicity.
Instead of huge courts-martial and all that sort of thing.
There is my difficulty. I am not concerned about flexibility, nor am I concerned much about simplicity, but I am concerned about justice and that is the basis on which the matter should be discussed by the House—justice to the soldier and to the officer. The only way we can have justice is by having inflexible provisions in the Act that his pay cannot be interfered with, unless a, b, c, d or e. If the Minister wants flexibility, he is getting it in the section and I do not think it is right that he should get flexibility.
He says that I am unduly apprehensive of the power of the Department of Finance to prevail in these matters. If the Minister had a sense of humour in dealing with this matter, I could deal with it in a humorous way, but the Department of Finance will prevail, if it can, over everybody, and every regulation that is going to be made under this must be submitted to that Department for approval and must be approved by it. I should like to think that the Department of Finance, not only in this but in other countries, is a human institution, concerned with the rights of individuals, but I have yet to find that that is so. The Department of Finance will be concerned with one thing only: how much money will they be able to save for the Exchequer by extracting it from the soldier's pay or allowances or otherwise? Is it not a pity, when we, as a House, could deal with this matter, that we are going to leave it to two Ministers of the future to decide what they will do about it? That is what we are doing and the Minister is inclined to blame me for objecting to that. That is what I am trying to protect. The Minister has told us how the regulations committee in the Department of Defence operates. I should say that I have some little knowledge of that matter, personal knowledge and experience as a member for a considerable period of that particular committee. I know how it works. It might be better for me if I did not know how it works, but I do, and I know the machinery which the Minister has mentioned here as operating in the Department of Defence in regard to regulations.
There is one little experience I like to remember in regard to regulations. I remember having responsibility one time of drafting a regulation dealing with Army holidays. I drafted it. It is still in operation; but included in it was a little paragraph which said that the Army was entitled to have a holiday on a statutory holiday. It looked rather innocuous but is passed and it was not long out until the 1st January came and we were able to indicate round about that it was an Army holiday and no military people turned in for work on that 1st January. The Minister did, and the civil servants turned in; and I remember being called on the following day in order to make an amendment to the regulation deleting that provision. I have to admit that I placed the file with those instructions in a drawer and they were forgotten and the Army holiday still exists.
I mention that matter because being a matter of that kind it was overlooked, but it shows the simple way in which military or Defence Force regulations can be made; and it is because I know how these things can be made that I am reasonably apprehensive of giving the powers that are here in this Bill in regard to them. I have seen other regulations that went through the procedure that the Minister mentions of all these people, printed, circulated, reached Cork, and there is a telephone message and an instruction to go and amend the regulations. That is all right as far as discipline is concerned. It does not matter very much as to whether you wear uniform before or after your tea. But it matters a terrible lot when one's pay and allowances can be interfered with in this fashion. Deputy MacEoin says that it is a simple system. Of course it is simple for the Minister to give an order to amend these regulations and when it is done to give another order to re-amend them, and of course it is perfectly flexible but there is no lifetime to the regulations. These are what they want.
Is it not strange that, flexible or inflexible, or simple or not so simple, the provisions of our Army Act of 1923, with the exception of one point to which I took exception, have lasted and have worked satisfactorily, and if they have done that why cannot we allow it to continue?
I have before me the British Army Act as published in the latest edition, 1951, of the Manual of Military Law. I think it will be admitted that the British Army is a bigger army than ours, that it is rather more complicated and difficult, that Britain is a country in which they do try to bring matters in legislation up to date. Britain is a country in which they have provided for soldiers convicted by court-martial a right of appeal to the Central Criminal Court in England, a thing I have strongly advocated for this Bill which the Minister would not accept. They have done that in the last few years, to give the soldier that right of appeal against a legal defect in his trial. As big as the British Army was and is, wide scattered as its barracks may be, every soldier knows that if he is court-martialled and convicted and if there is a legal ground for objection to the decision he may in the circumstances set out in the particular Act appeal to the Court of Criminal Appeal in England and have his appeal heard on ground of law.
We are anxious to adopt the Canadian system so long as it gives a chance of taking pay away from soldiers, but we will not adopt a system that gives the soldier a right of appeal against an illegal conviction. I have here, as I say, the Manual of Military Law, 1951, Part I and it sets out precisely the grounds on which the pay of an officer may be interfered with, the grounds on which it is to be forfeited, the grounds on which penal deductions are to be made. It starts off by saying as a specific right of the soldier that the pay of an officer or soldier of the regular forces shall be paid without any deduction other than a deduction authorised by this or any other Act or by any Royal Warrant for the time being.
Royal Warrant meaning regulation?
No. I do not want at this time to enter into that with Deputy MacEoin. The Royal Warrant in its application to pay is subject to the provisions of this Act. One can misread very easily legal phraseology. It says very specifically as I read out in the beginning in regard to our own Act that the following penal deductions may be made from the ordinary pay due to an officer of the regular forces—and I am not going to read them all. But it starts off exactly as our Act of 1923 did—from ordinary pay due to an officer who absents himself without leave or overstays the period for which leave of absence has been granted may unless a satisfactory explanation has been given through the commanding officer of such offence and has been approved by the Army Council. There is considerable protection there in regard to the overstaying of leave.
There are 15 sub-sections which set out clearly the laws that govern penal deductions from pay and allowances, and that with all the enormous statute roll that the British Parliament has, to put it that way; but we want flexibility, simplicity. Similarly in regard to the soldier the same provisions are there. Why do they have that in Britain? Can anyone imagine in the British Parliament a Secretary of State for War daring to bring in an amendment to that provision to enable the Secretary of State for War, or anybody else, to make regulations to interfere with the pay of officers and soldiers?
It is, of course, true that a very large number of members of the British Parliament have been, and some of them still are, members of the British Army. It is quite true that they have had the experience of many wars. In the last 40 years they have had the experience of two world wars and it is true that in Britain there has been raised up through the medium of regimental codes of honour an understanding of the things that matter to the soldier. But there is more in it than that. Anyone who studies the history of the British Parliament over the last 700 years and studies the constitutional developments, and the checks now and again to that development, the battles fought by individuals, some of whom were placed in the Tower and some of whom were executed, knows that all the time one principle has been involved and that is the principle of the supremacy of Parliament.
It is not without significance that so far as the British Army is concerned they have got that code in relation to their pay at all times, although I am perfectly certain that there are civil servants in the British Civil Service who may be anxious to alter it. It is there, and I prefer to use that as a precedent rather than adopt the precedent the Minister has adopted here, the precedent of the Police Forces (Amalgamation) Act, the precedent of the British Navy and the precedent of what the Canadians did in 1950. Above all, I prefer the precedent of our own Act, an Act that has survived for 31 years. Why, if its foundations in this particular section are sound, should it be pulled down now? Why should it be pulled down about the ears of the Minister, about the ears of his Department and about the ears of the Defence Forces generally? I certainly do not know why that should be and I ask the Minister to give the reasons for it.
Why should we have a Bill at all? That is as reasonable as the question the Deputy is asking.
If one has a satisfactory statute, why alter it? That is the point I want to put. If the law dealing with deductions and forfeitures is satisfactory, subject to one amendment, why must it all be blotted out? I have said very clearly and specifically that it would be much better for the Defence Forces if this Bill was never passed rather than have it passed containing its present provisions. That is why I have decided to examine every section, clause and comma in this Bill so that the Minister and his advisers may on reflection, and before it becomes law, be convinced that after all there is no reason for this chopping and changing based on such unsatisfactory and unreliable precedents.
I am sorry that in a matter of such profound importance the Minister has not the benefit of the views of more members of this House. The Minister makes the point that irresponsibility must be penalised. He goes further and he says that if damage is caused through irresponsibility, carelessness or negligence the person responsible must be compelled to pay. That raises very difficult issues because we are again concerned with the phraseology. What does the Minister mean by irresponsibility? What does it connote? Does it connote wilfulness? Does it connote carelessness which does not amount to negligence? Is it negligence? If it is negligence, it is a breach of law and, if it is a breach of law, there are provisions in this Act to deal with it. There are provisions for investigating breaches of law.
I had hoped that the result of our examination of this Bill would be that negligence of the kind the Minister has in mind—that is, negligence that constitutes an offence against the Defence Forces Act and possibly an offence against ordinary civilian statutes—would be dealt with as an offence properly investigated, properly considered and properly determined by a court-martial or other judicial body set up under the Act. Our difficulty is in regard to these penal deductions: "The sum required to make good any loss, damage or destruction of public property which after due investigation appears to the Minister to have been occasioned by any wrongful act or negligence on the part of the officer." That is what the law says at the moment. The law says nothing about irresponsibility; it says nothing about carelessness. It very clearly says that he can only be compelled to pay if it is due to a wrongful act or negligence on the part of the officer.
That is what I feel has been the trouble, that there are two types of construction, two types of interpretation of that particular sub-section. There is the legal construction that it must be proved that it was a wrongful act or that it was due to negligence and there is the interpretation which says: "It was due to carelessness or irresponsibility and therefore I will make the person pay." That is the matter which has been obsessing the minds of officers and soldiers for many years, that their cases should be dealt with under that sub-section by the Minister for a wrongful act or negligence, and that the Minister has been advised frequently to make deductions based on what he calls irresponsibility or carelessness.
I apply the decisions in conformity with the law and nothing else, whatever words I may use. If they are not in conformity with the law they do not arise.
It reminds me of the saying that words mean what we intend them to mean. If the Minister says that he used the words "irresponsibility or carelessness" through inadvertence——
I am not saying that at all. I am not apologising for anything I said. The Deputy is trying to parse them and put other meanings on the words.
No, I am not. I want to put this to the Minister. I just took down a very short note as he was speaking and I took down this, that he must penalise irresponsibility. That was a very serious statement for the Minister to make because the Minister has no right at law to penalise, as he says, irresponsibility by taking money out of their pay.
I have not admitted that I penalised anybody for irresponsibility. I am saying now that I penalised them in accordance with the law, whatever it was. If I used the word irresponsibility I used it as my own description, although I am not apologising.
I am not asking the Minister to apologise, but we are dealing with a sub-section in which it is clearly laid down that money may only be deducted when the loss or damage or destruction is due to a wrongful act or negligence. I instanced to-night a case where an officer has been asked to show cause why the Minister should not deduct from his pay a certain sum of money. What right has anybody to write to an officer and ask him to show cause why the Minister should not deduct a sum of money from his pay when you have the very clear provision of that section that it is only after due investigation by the Minister and when the Minister is satisfied that it was occasioned by a wrongful act or negligence that he can be called upon to pay anything?
We have fallen into this position of irresponsibility, if I may use the word, where people are assuming to themselves and taking to themselves the responsibility of the Minister and writing to officers this warning note to show cause why the money should not be taken from them. We have a precedent in this country and in Great Britain and in democratic countries generally of a principle of law that a person is innocent until he is proved guilty. The procedure that has grown up here is to ask a man to prove his innocence, and officers and soldiers are being asked under that section for many years to establish their innocence and, if they cannot establish their innocence, the money is taken out of their pay and allowances. If that is the way that has been misinterpreted and misused, I say that I object to giving the wider provisions that are asked for in this section to the Minister: that he can decide what forfeiture, deductions and stoppages may be made from the pay, allowances, gratuities and grants of members of the Defence Forces. The Minister says: "I have endeavoured to meet Deputy Cowan by putting down an amendment," and here is the amendment that the Minister proposes to move subsequently in regard to these regulations:—
"(b) Regulations made under this sub-section shall not prescribe—
(i) forfeiture of pay except in respect of—
(I) absence on desertion or without leave,
(II) custody, imprisonment or detention,
(III) absence from duty on account of a disease or disability arising out of the commission of any offence,
(IV) unclaimed amounts;"
Now the Act which this is intended to supplant says in the case of an officer and similarly in the case of a soldier:—
"pay shall be automatically forfeited every day——
(a) Of absence on desertion or without leave.
(b) Whilst he is in custody on a charge for an offence resulting in a conviction by a Civil Court.
(c) Whilst he is in custody on a charge resulting in a conviction by court-martial unless the court-martial shall otherwise direct."
The Minister says he wants to make regulations for forfeiture except in respect of absence, custody, imprisonment or detention, absence from duty on account of disease or disability arising out of the commission of any offence, unclaimed amount, and deductions from pay except in respect of:—
"(I) articles or services provided,
(II) marriage allotment,
(III) fines, penalties, damages, compensation or costs awarded,
(IV) public or service property lost, deficient, damaged or destroyed,
(V) public or service debt or disallowance,
(VI) unauthorised expenditure or commitment;"
Now, take just for purposes of comparison one sub-section that is there: "public or service property lost, deficient, damaged or destroyed." The Minister may make regulations about that. Of course, he may make regulations for irresponsibility. He may make regulations for carelessness. He may make regulations for all the things that attempts have been made to make officers and soldiers amenable to by monetary deduction over many years. But the law it is replacing said this:—
"The sum required to make good any loss, damage or destruction of public property which, after due investigation appears to the Minister to have been occasioned by any wrongful act or negligence on the part of the officer."
It does not require any great intelligence to show that there is a very substantial difference between what is there—although it was the defective section, the one I hoped would be amended—and what the Minister provides here. I think it is reasonable to ask the Minister why he puts it in in that bald fashion that deductions may be made from officers or soldiers in respect of public or service property lost, deficient, damaged or destroyed. There is nothing to indicate there that in fact the person who may have caused the damage is the person who would be mulcted for doing it or whether a person who had knowledge of a deficiency, a loss or a destruction could be compelled to pay.
I am not, as the Minister knows, just opposing this particular section for the purpose of opposing it. I am opposing it on the very strong grounds that I set out in the Special Committee when we debated this matter, which I set out again here to-night in moving the amendment that I did move, and which I am setting out now in the reply I am making to the observations of the Minister in support of his own section.
I think when all is said and done it boils down to this simple question: why does the Minister want to change a law that has been satisfactory, which has been specific and precise, which was clear and obvious to everybody in the Army, however well educated or ill-educated he might be? Why does he want to do that and to put into the regulations anything that he and the Minister for Finance may chose to put in, in regard to pay and allowances and deductions from pay and allowances? That is the question that is troubling me. Why does he want to do it? I have advanced the reason—that in my view difficulties have been found in collecting money from soldiers and officers from time to time and that when this Act is passed and when this section becomes law, that defence forces regulations relating to these deductions and stoppages will be published and within these regulations there will not be the protection that there ought to be.
It is one significant thing about the law of this country that any citizen ought to be entitled to go into the stationery office, or otherwise purchase for whatever price it is, the law of the country. Then a person who would be interested in joining the Army could, if he so wished, read the Defence Bill and see that there were certain matters laid down, matters of protection in the Act, and he would know that nobody could interfere in these matters against him. No person, be it a civil servant, the Minister for Finance, or even the Government, could interfere. He would know that protection was given to him by his own Legislature. He would know that if he had a friend who joined the British Army, that that friend had the same protection against interference with his pay or allowances in the British forces. But now, nobody can say what the law will be in regard to deductions and forfeitures, because the law may be laid down in regulations to-day and may be altered or amended to-morrow.
There are certain matters in respect to dress, discipline and in respect to general administration that I think are proper to be dealt with in regulations that may be altered from time to time as circumstances change but there cannot be, and ought not be, any alteration in the law relating to or governing the forfeiture or deductions in pay. If that principle is accepted and if it only meant writing in a couple of pages into the Act of 1923 then it would be right and proper that those pages should be written into this new Bill.
On the matter of size, the Minister has found it necessary to take up as much space in the new Bill empowering himself to make regulations as it was found necessary to insert in the old Bill governing the same matters. So that from Deputy MacEoin's point of view of simplicity—where is the simplicity? I do agree that it does bring about flexibility, but if it takes exactly the same amount of space to write in this provision giving the Minister power to make regulations as it does to put in the specific matters themselves in the Act, then I think the Minister has no grounds whatsoever for insisting on the alterations that he is making here.
On these grounds, which are the main grounds in regard to this particular provision, I have felt it necessary to speak at greater length than I might have done and my reason for doing so is to endeavour by force of argument to convince the Minister that he is making a mistake here.
I move the adjournment of the debate.
Debate adjourned.
The Dáil adjourned at 10.30 p.m. until 10.30 a.m. on Friday, 12th February, 1954.