Dáil Éireann díospóireacht -
Friday, 12 Feb 1954

Vol. 144 No. 3

Defence Bill, 1951—Report (Resumed).

Debate resumed on amendment No. 51.

Captain Cowan

When the debate was adjourned last night I was dealing with certain matters that were mentioned by the Minister in reply to my motion. The Minister paid me a very high compliment when he said that I would be satisfied with no Defence Bill except one that I had introduced and prepared myself. I accept that as an exceptionally high compliment from the Minister because, human nature being what it is, we all think that we can do things best. If it were simply a matter of who drafted or prepared the Bill the House would not have much trouble in regard to it. It is because the principle involved in it is of such tremendous importance that I considered it necessary to examine it in all its implications. I can fairly say that the defence made by the Minister for his proposals did not in any way weaken the very strong case that I made in favour of my proposal.

The Minister has introduced a section which has the effect of authorising and empowering the Minister to deal with all matters relating to the pay of officers and soldiers of the Defence Forces. It enables the Minister to make the law that deals with deductions, forfeitures and penal deductions and, having made the law, to interpret it and to decide the law on his own interpretation. When the Minister makes regulations, as in this case, which are made by him with the concurrence of the Minister for Finance, the general position is that in case of any doubt in regard to interpretation the Minister is the final arbiter as to what the regulations mean. The Act of 1923 specifically laid down the occasions and circumstances in which pay might be forfeited or deducted. There is no such limitation in the Minister's amendment.

If this new section becomes law the Minister may make any regulations he wishes dealing with forfeitures and penal deductions. That is clear from the terms of an amendment that the Minister himself proposes as a result of objections that I made to this new idea in the Special Committee. He says in this new amendment that he will make regulations dealing with the forfeiture of pay in the case of desertion or absence without leave, in the case of custody, imprisonment or detention, in the case of absence from duty on account of a disease or disability arising out of the commission of any offence, and in respect of a new item called unclaimed amounts. In the same amendment he also proposes that the regulations that he will make in regard to deductions from pay will apply only to articles or services provided——

An Ceann Comhairle

Will we be duplicating the discussion by discussing that on this amendment?

Captain Cowan

I think the Leas-Cheann Comhairle indicated that we could discuss them together.

An Ceann Comhairle

If that is so, I am quite satisfied.

Minister for Defence (Mr. Traynor)

The Deputy is now actually covering amendment No. 51 (f). That is what he is discussing. I am not objecting to that.

An Ceann Comhairle

Then it is all right—so long as we know.

Mr. S. Collins

I take it that Deputy Cowan is not concluding the discussion?

An Ceann Comhairle

He is concluding on amendment No. 51. Then the Minister will move No. 51 (f).

Mr. Collins

With respect, if it is agreed that these two amendments are to be discussed together, surely the discussion cannot be limited on the next amendment?

An Ceann Comhairle

I see Deputy Collins's point and that is the reason I raised the matter. Deputy Cowan is clearly closing on all the line of amendments.

Captain Cowan

Yes; except that the Chair did suggest last night that we could discuss them altogether.

An Ceann Comhairle

I am advised that the Chair agreed to discuss Nos. 51, 52, 56 and 59 together. I see Deputy Collins's point—he does not want a closure on the other amendments, which is quite reasonable.

Captain Cowan

Anyway, I am only using this at the moment, because the Minister mentioned it in his statement.

Mr. Traynor

I merely said that I was bringing in an amendment to meet the Deputy's wishes. That is all I said. I did not discuss it. The Deputy is discussing fully No. 51 (f) now.

An Ceann Comhairle

I do not want No. 51 (f) discussed fully now. The House should have an opportunity of discussing it later.

Captain Cowan

I agree. Perhaps it is desirable that that should be dealt with by itself.

An Ceann Comhairle

The right should be preserved for every Deputy to deal with it if he wishes.

Captain Cowan

Then I will make only a casual reference to it, in the same way as the Minister, as to the mind that is behind this proposal.

Mr. S. Collins

I am anxious to know before Deputy Cowan concludes how far he feels the Minister has gone to meet him.

Captain Cowan

He has not gone anywhere to meet me. That is the position. That will be a matter for the Dáil. Section 97 (2) says:—

"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, ..."

For the moment I am concerned only with the first paragraph there. The Minister says, in an endeavour to meet me in regard to the wide scope of the power, that he proposes to introduce an amendment to limit that power. As I was pointing out in regard to deductions, the Minister has set them out in six headings. He says the regulations under that sub-section will apply only to forfeiture of pay in the case of absence on desertion or without leave, to forfeiture in respect of custody, imprisonment or detention, to forfeiture on account of absence from duty through disease or disability arising out of the commission of any offence, or to unclaimed amounts; and that the deductions, taking them in the broad general way in which they are set out, will apply only to articles or services provided, to marriage allowances, to fines, penalties, damages, compensation or costs awarded, to public or service property lost, deficient, damaged or destroyed, to public or service debt or disallowance, and to unauthorised expenditure or commitment.

In answer to the point that Deputy Collins makes, I say that that could not possibly meet my point of view. Every conceivable case of forfeiture or deduction is included in the ten subheads set out by the Minister in his amendment. It includes every conceivable deduction or forfeiture that could, with any show of reason, be made. Therefore, it is my view that the Minister's proposal, for an amendment to his own section, shows how wide in scope the particular section is. If those ten points are, in fact, the limitation of it, then the section has extraordinary width. The one matter which affects the ordinary officer or soldier is the matter of his pay and allowances. Those, naturally, are the most important things in his life. The Minister says that I have adopted this idea because there are certain precedents for it, and one of the precedents he mentioned was the Canadian Defence Forces. I think that if we were to pay our soldiers in the same way as soldiers in the Canadian Army are paid, if we were to pay them the rates of pay that are paid in the Canadian Army——

An Ceann Comhairle

The rates do not arise on this amendment.

Captain Cowan

No, but what I am saying is that if we had to pay the rates of pay that are paid in the Canadian Army then, perhaps, our soldiers would have no objection to being dealt with in the same way in regard to forfeitures and deductions as the Canadian soldiers are dealt with.

Now until this new Bill becomes law, and until this particular section that we are discussing is put into operation, every soldier and every officer has protection under the law of the country against any illegal or improper interference with his pay and allowances, but, when this Bill is passed and becomes an Act, that legal protection will be gone. That is my ground of objection to the provisions in Section 97 of the Bill, that it does deprive officers and soldiers of legal protection in respect to their pay and allowances, and leaves it entirely to the Minister which, in effect, is the Department of Defence, to decide what forfeitures and what deductions may be made from the pay of an officer or a soldier.

Every person who served in the Defence Forces since it was founded, and particularly those who served in the Defence Forces during the emergency, amounting to thousands of our citizens, are aware that there was continuous objection to the attempts made by the finance section of the Department of Defence to deprive them of pay and allowances under the authority of one sub-section of the old Act which gave the Minister power to oblige an officer or a soldier:—

"to make good any loss, damage or destruction to 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 only aspect of an officer's or a soldier's pay that was left to the discretion of the Minister. That section has been operated for a period of over 30 years in a way that has caused resentment amongst the officers and soldiers. It has been a cause of discontent amongst the ranks of the Defence Forces. If that section which, in itself, if properly interpreted could not cause much harm, was misused as it has been misused, what guarantee can any one of us have, what guarantee can any officer or soldier in the Army have, what guarantee can any citizen who understands the Army have, that the wider powers now taken by the Minister to interfere with pay and allowances will not be misused?

I want the Minister to understand clearly that, as he stated himself in reply to my motion, this Bill is not entirely his Bill. This Bill, in the main, was a Bill that was adopted by his predecessor and that was introduced in the Dáil by his predecessor.

An Ceann Comhairle

I do not want to interrupt the Deputy, but it seems to me that that does not arise on the amendment which simply asks that certain words be deleted. While the Deputy may find it difficult to deal with general matters of this kind without repeating himself, the Chair feels that he is now travelling over some of the ground that he travelled last night.

Captain Cowan

I certainly did not want to do that.

An Ceann Comhairle

Possibly not.

Captain Cowan

I simply want to clear up a point that the Minister made in answer to my motion, that any criticism I am directing against this Bill is a criticism against the Bill itself and would have been made by me, no matter what Minister introduced this particular provision.

An Ceann Comhairle

I think the Deputy might now get back to the amendment.

Captain Cowan

I wanted to be specific on that point.

Mr. S. Collins

No matter what Minister introduced it, the Bill came from the same source.

Captain Cowan

I agree that is a difficulty that we have in regard to it because the Minister did, in reply to me, give the impression that he felt that some of my remarks were directed personally against him. May I say that there was nothing further from my mind?

An Ceann Comhairle

The Deputy has now put himself right on that point and might come to the amendment.

Captain Cowan

My amendment, in effect, is to delete Section 97 entirely.

An Ceann Comhairle

Certain lines of it.

Captain Cowan

As regards what we are discussing, the Chair did indicate that I could discuss some of the other amendments to it.

Mr. S. Collins

Has the Deputy considered the constitutionality of the section?

An Ceann Comhairle

I do not think it would be competent for the House to deal with that on this amendment.

Captain Cowan

Not on this amendment—as to whether it is constitutional or not. I fear myself that, if it is passed into law, it would be held to be constitutional.

An Ceann Comhairle

Is that a peg to hang a further dissertation on?

Captain Cowan

No. In effect, my amendment is to delete, as far as this section is concerned, the words which give the Minister power to make regulations prescribing

"the forfeitures, deductions and stoppages to which the pay, allowances and gratuities of and grants to members of the Defence Forces may be subjected".

I further propose that the main portions of the old Section 126, and subsequent sections of the 1923 Act that deal with pay and allowances, should be inserted instead.

The Minister said that I do not apparently want to have any provisions in the Bill in regard to forfeitures or deductions, but of course that is not so. I made it perfectly clear in opening, and I understand from experience, that there must be provision for forfeiture of pay and for deductions. Where the Minister and I differ is in relation to what is the proper lawful procedure in respect of these deductions. I would not for one moment make the point that if a soldier or officer is absent on desertion or without leave, he should not forfeit a day's pay for every day of such absence, and certainly if an officer or soldier is in custody on a charge which results in a conviction by a civil court, I agree that it is proper that there should be a forfeiture for every day on which he is in that custody. Similarly, if he is in custody on a charge resulting in a conviction by a court-martial, unless the court-martial otherwise direct, I think it right that he should forfeit pay for that period, so that the Minister is entirely wrong in the suggestion that I do not want forfeitures or deductions. Similarly, if an officer or soldier by wilful act commits an offence against military law, and, in the commission of that offence, causes loss, damage, destruction or expense, it is right that he should be obliged to make good that expense, loss, damage or destruction.

There is one provision in regard to deduction which I do not think is of any materiality—"the sum required to make good the pay of an officer or soldier which he has unlawfully retained or refused to pay." I do not think we need worry very much about that, but certainly if an officer is fined by a court-martial or by a civil court or by his superior officer after due trial, I believe it is right that the amount of that fine should be deducted from his pay, and I agree also that he should be obliged to make good any loss, damage or destruction of public property which has been occasioned by his wrongful act or negligence.

Mr. S. Collins

It is amazing how wide they were able to stretch that one.

Captain Cowan

While I agree that there should be a deduction in that respect, it is the one section in respect of which I was anxious that the power of the Minister to decide it should be taken away. As Deputy Collins has said, it is the widening of that sub-section which has caused discontent right through the whole Defence Forces since the terms of that sub-section came to be applied. Had the sub-section been interpreted correctly and strictly, with due regard to the rights of the officer and of the soldier, a considerable amount of the discontent and uneasiness that existed in the Army in regard to it——

An Ceann Comhairle

Is this a sub-section of Section 97?

Captain Cowan

It is the section of the old Act which Section 97 replaces.

An Ceann Comhairle

If Section 97 replaces it, it is clearly irrelevant.

Captain Cowan

Section 97 wipes out the whole protective code that existed in a number of sections in the 1923 Act.

An Ceann Comhairle

If Section 97 has been substituted for that sub-section, it is clearly irrelevant to the discussion. We are dealing with Section 97 and proposed amendments to it, and I suggest that the Deputy should apply himself to that.

Mr. S. Collins

Surely the background of this section must be relevant.

An Ceann Comhairle

We cannot continue to travel back and back.

Mr. S. Collins

It is not a question of going back and back, but surely on this specific section, by which we are endeavouring to correlate and put into one section the entire background, it is relevant.

An Ceann Comhairle

We cannot say that the particular sub-section Deputy Cowan refers to is the only background. The Deputy should address himself to Section 97 and the proposed amendment. He has ample scope there and he is availing of it to the fullest extent.

Captain Cowan

At the moment the law is laid down clearly and the law at the moment says that you cannot suffer a deduction or forfeiture except in these specific instances and no Minister and no Department of Defence dare interfere with these rights given to the soldier by law. The Minister, in this Bill, says: "I am going to throw all that overboard and I am going to be the deciding factor as to what forfeitures and deductions are to be made." I say he is taking a very wrong step.

An Ceann Comhairle

The Deputy has said that already. He said a quarter of an hour ago that the Minister was making the law and administering the law.

Mr. Traynor

The Deputy has been speaking for over two hours on this amendment and he is bound to repeat himself.

An Ceann Comhairle

I pointed that out to the Deputy.

Mr. Traynor

He has been repeating himself continuously.

Mr. S. Collins

I do not think that type of argument is going to help us to get the Bill through.

An Ceann Comhairle

I will refrain from making any comment.

Mr. Traynor

Is Deputy Cowan helping to get it through?

Mr. S. Collins

What I suggested initially was that if there were a little more give and take on all sides the Bill would have been through long ago.

Mr. Traynor

I do not think Deputy Cowan can suggest I did not give. Deputy Cowan is taking all right.

An Ceann Comhairle

We cannot have a discussion on that. It appears to me that Deputy Cowan is repeating himself. I pointed out that he possibly found it difficult not to do that, but he has said things he said a quarter of an hour ago and repeated them just now.

Captain Cowan

With respect, the Chair can, of course, hold that it is repetition to say, as I said, that the Minister under this proposes to set himself up as the law in regard to forefeiture and in regard to stoppages. But the point I want to drive home is this—and I agree with Deputy Collins that if there was a little bit of give and take in regard to this Bill there would be no trouble about it. The Minister will agree, I think, that in the Special Committee and again in this House I have gone to a considerable amount of trouble to assist the House to get what I consider to be a good Bill, and if I am to be criticised for doing the work that a Deputy ought to do I think it is most unfair.

An Ceann Comhairle

We will discuss the amendment and the effect on the section. I have endeavoured to help the Deputy as far as possible. I have not been in any way rigid in my ruling. I am not anxious to be rigid because it is possible that the Deputy would find it difficult to discuss the position without repeating himself occasionally.

Captain Cowan

The one thing I have endeavoured to do, and I think I have done it reasonably successfully, is to deal with this very important section of the Bill in as comprehensive a way as I can. The Chair did suggest to me last night when I was discussing this particular amendment that I might also, if I so wished, discuss the other amendments in my name that follow.

An Ceann Comhairle

52, 56 and 59, I think.

Captain Cowan

Yes. I am not sure if the Chair said that I could take amendment No. 52. That is what I want to be clear on.

An Ceann Comhairle

52 is consequential, of course. If 51 falls, 52 is gone.

Mr. S. Collins

Surely the fact that they are consequential would not obviate discussion.

An Ceann Comhairle

Has it prevented discussion? The Deputy has been discussing the principle involved in 52 for a considerable time.

Captain Cowan

That is so and that is why I think that perhaps the Chair and myself were not ad idem in regard to it.

An Ceann Comhairle

What I had in mind is that 52 was consequential. I am not restricting the Deputy in any way.

Mr. S. Collins

I think the Chair is very reasonable in fact.

Captain Cowan

The Chairman will see that amendment No. 52 proposes to reinstate, to put into the Bill, eight entirely new sections which in effect are the sections of the 1923 Act to which I was drawing the attention of the House, and in that respect I thought the references were entirely relevant.

An Ceann Comhairle

That would assume a certain thing happened to 51.

Captain Cowan

Yes, but being consequential on 51 falling, if 51 falls after perhaps a debate then it is not necessary that it would be debated if 51 had failed.

An Ceann Comhairle

The Deputy has got a good deal of latitude. I hope he will confine himself specifically to what is before us.

Captain Cowan

I only wanted to be clear on one point: whether, in fact, I could mention 52, because it happens to be consequential?

An Ceann Comhairle

Yes.

Mr. S. Collins

I take it that at the end of this discussion we are going to deal with the section.

An Ceann Comhairle

There will not be a duplication of the discussion.

Captain Cowan

That is what I thought. I had indicated to the Leas-Cheann Comhairle that, while I would not commit myself to that at the time, if it facilitated the House I would adopt that procedure.

Mr. Traynor

Are we now discussing the amendments from 51 to 51 (g)?

An Ceann Comhairle

No.

Mr. Traynor

What are we discussing?

An Ceann Comhairle

Amendments Nos. 51, 52, 56 and 59.

Mr. S. Collins

We are not discussing the Minister's amendment as well?

An Ceann Comhairle

No.

Mr. S. Collins

I thought we were.

An Ceann Comhairle

I was particularly careful that that was preserved so that Deputies could comment on it, because Deputy Cowan would be commenting on it and anybody else would be entitled to comment on it. I wanted to preserve the right of Deputies to comment on the Minister's amendment if they wished to do so when it is moved.

Captain Cowan

The Minister did make the point that I was entirely opposed to forfeitures and to deductions, and as you will see from amendment No. 52 I did, in that amendment, set out all the circumstances in which I thought it was reasonable that there should be a forfeiture or a deduction from pay. In the eight sections that are covered and inserted in that amendment, I made provision in the first one for automatic forfeiture in respect of an officer; in the second, for automatic forfeiture in the case of a soldier; in the third, I set out my definition of what a day meant for the purposes of the application of these particular sections dealing with forfeitures—and on that I do not think that there is very much difference between the Minister and myself; I think that the Minister agrees that "day," for the purposes of this forfeiture or deduction, is to continue as it has been; in the fourth sub-section, I made provision for the penal deductions that may be made from the pay due to an officer; and in the fifth for the penal deductions that may be made from the pay due to a soldier.

I felt that I was approaching this problem in a reasonable way and in a constructive way, and I was hoping that the Minister would see the reasonableness of meeting the case that I was making. I cannot see any reason why the law that has protected officers' and soldiers' pay for a period of 30 years should now be done away with and that the Department of Defence should seek to take powers to enable them to do what they wished with the pay of officers and of soldiers. I want to repeat, without being guilty of repetition to which the Chair could take exception, that, as far as the Army is concerned, if this new Bill with this section that the Minister proposes is passed, the officers and men will be in a worse position in relation to their pay and allowances than they are at the moment.

An Leas-Cheann Comhairle

The Deputy has said that on several occasions.

Captain Cowan

I merely wish to repeat it without transgressing the rules of the House in relation to repetition. I want to bring it home to the Minister and that is why I am so adamant and so strong in my opposition to the proposed change.

If eight sections of the old Act have worked well I can see no reason why we should drop those sections now and adopt one sub-section, consisting of 24 words, the effect of which will be to deprive this House of its control over forfeitures and deductions while handing over full power to the Minister to deal with these matters. As Deputy S. Collins said by way of interjection it has been the misuse, the ministerpretation and the misapplication of one sub-section in the old Act which has caused all the concern, confusion and worry to officers and men over a long period. It is now proposed not only to leave that power with the Minister but to give him wider and more extensive powers so that no one will know from day to day what deduction will be made from him or what forfeiture he will be liable to because the decision as to forfeiture or penal deduction will, in the last analysis, rest with the Minister and, as the routine has grown up, it will unfortunately rest not with the Minister but with his advisers.

I instanced a typical case in the course of my opposition to this amendment, a case which has become routine in the Defence Forces; some person in the Department decides that an officer or a soldier should contribute a certain sum of money to the State and that person writes to the officer or the soldier asking him to show cause why he should not be obliged to pay that sum to the State. Will that be the interpretation of the new Act? Can the Minister assure the House that the faulty interpretation and the misunderstanding of the section that has grown up in the Department will not continue and apply to any other regulations that may be made in the future?

Is it reasonable to ask the Minister if in the regulations he proposes to make under this section he will lay it down that in case of doubt he will be the authority who will resolve that doubt; and, if he is the authority who will resolve that doubt, will he put into the regulation that in case of doubt the decision will be in favour of the officer or soldier and not in favour of the Department? It is one of the fundamental laws of this State that where there is a doubt the doubt must be resolved, if it is a criminal matter, in favour of the person against whom the proceedings are taken and, if it is a civil matter, on the basis of common sense and sound precedent.

The Minister should have indicated to us the type of regulation he proposes and the provisions that he will include in such regulation to ensure of its interpretation strictly in accordance with the law and not in accordance with Civil Service interpretation. He should provide, too, that where there is a doubt that doubt will be resolved in favour of the officer or soldier concerned.

There are some matters that are not available to me at the moment for the purpose of examination of the statement made by the Minister yesterday in relation to British naval law and Canadian military law. During the week-end I hope that I will be able to examine both the British naval code and the Canadian military code because I am anxious to discover the precedents the Minister has mentioned and which his advisers have suggested to him it is wise and desirable we should adopt.

I am sorry if I appear to be delaying the Minister in getting this measure through but I hoped that in a Bill of such consequence, affecting as it does so many people now and in the future, some regard would have been had to the views of those who have had practical experience and who understand the point of view of military personnel. If regard had been had to those views in the preparation of this Bill, it would perhaps have had a speedier passage through this House.

Debate adjourned.