I move amendment No. 1:
In page 2, after line 18, to add a new subsection as follows:
"(2) Nothing in the foregoing subsection shall be construed as purporting to deprive any person of any right of action which, but for the enactment of the foregoing subsection, he would have had, if such right of action is founded on the alleged denial of, or failure to respect, a constitutional or natural personal right.".
In introducing this amendment, I wish to recapitulate to the House the point I tried to make during the debate on Second Stage. I was focusing then on the character of this Bill as an indemnity Bill for retrospective validation. I made the point that the question whether it was constitutionally possible in this country to make retrospectively legal that which is illegal has not yet been squarely faced and decided by the courts. We have had at least one indemnity Act after the civil war and there have been a lot of other Bills and Acts which contain sections which retrospectively validate this or that. However, the constitutionality of this, where a grievance can arise, has never yet been tested.
I said on Second Stage that I recognised that any Government, within reason, must have a chance to validate situations which, because of a technical flaw, are invalid. I accept that. A Government would be working with a very severe obstacle if the law did not allow for such a thing to be done. Also, retrospective validation may possibly change the legal situation of individuals; and that perhaps is unavoidable. The problem arises where the situation of the individual is one where he wants to litigate, where he wants to bring an action. I raised the point last day here of the distinction between things Mr. McLaughlin may have done in the perfectly honest discharge of what he believed to be his legal function as Commissioner, of a kind which were not likely to aggrieve anybody and, on the other hand, things he may have done which may have aggrieved people. I gave the instance—whether it is a good one or not I do not know—of regulations which he may have made in regard to restrictive parking areas or something like that, which, in their nature, do not give rise to much litigation and about which I could see no great problem if there were retrospective umbrella legitimacy for this type of regulation, even though they were a year old and made at the time without lawful authority. On the other side, which is a good deal more difficult, is what to do when something which the Commissioner did in the line of duty, or what Mr. McLaughlin did in good faith, thinking it was his legal duty to do it, may, in its nature, have given rise to a grievance: for example, the promotion of X and the exclusion of Y, or the admission of X to a taxi driver's licence and the exclusion of Y, either because Y feels he is being wrongfully excluded, or because, perhaps, an existing taxi driver, or numbers of taxi drivers feel that their business is being prejudiced by the admission of an excessive number of new taxi drivers. These are functions which the Garda Commissioner discharges. These are cases where one can well imagine that a disappointed applicant for promotion or a disappointed applicant for a taxi licence may have had a sense of grievance but may have grinned and borne it at the time thinking that he had no remedy. Now he may discover, a year later, that the gentleman who in good faith made this ruling or decision from which he feels he suffered had no lawful authority to make it at all. Perhaps he now thinks that he has a good chance to have this set aside and get the courts to oblige the proper Commissioner, now that he is confirmed in his job, to go through the process again and reopen the competition or whatever.
There the question of whether we can validate or legalise that which was illegal or had no lawful authority arises in an acute form. If we pass the Bill as it stands we are purporting to deprive of a right of action persons who at present have a right of action or, if they were to realise their situation, may have a right of action. I realise that any retrospective validation is potentially capable of depriving someone of a right of action. Anyone who relies on an illegality or feels he can complain about an illegality is deprived of a potential right of action, even if he never intended to take an action, if that illegality is not made legal. That is clear. At the same time I do not see how a state, if it is to do business, can avoid that kind of rough operation. The point my amendment is trying to get at is when the right of action which we are purporting to put off relates to something which is more than just an ordinary action in tort or contract, when it relates to a constitutional or what the courts are now calling a natural person right, I do not think this House, the other House and the President between them have power to deprive people of their right of access to the courts to assert that constitutional or natural personal right.
During the course of the Second Stage I said, on the question of earning a livelihood, that the courts have now asserted there is such a thing as a personal right of a citizen to earn a livelihood. That involved a declaration by the courts that he has an ancillary right to prepare for a career, train for it and so on. In the context of a hierarchical livelihood, namely one in the civil service or in the police force, I have no doubt that the courts would say, if they were asked, that there was implicit in it a right to a fair and equal chance of promotion. I am not trying to stir up trouble and I am sure the Minister would not allege such a thing, but supposing a sergeant disappointed in an inspectorship examination or a garda disappointed in a sergeant examination now finds that the decision under which he was unsuccessful was made, albeit in good faith, by an officer who was not the officer he thought he was, that person could have a right of action related to his constitutional right to a livelihood. I do not say he would win his action. In 99 cases out of 100 he would probably lose. Quite likely it would be held that no injustice had been done to him. Quite likely, if the competition was held all over again, the outcome would be exactly the same. I am not making any other assertion. However, at present he has a potential right of action and it is one related to a value in his life which the courts regard as a central personal right. The Dáil, Seanad and President would be slow to legislate in a way which would incontinently cut off rights of action of this kind. It may be that there are other rights of action we cannot avoid cutting off, but where this very sensitive area is concerned we should legislate with care.
We are specifically prohibited by Article 15, section 4, from legislating to any effect which is repugnant to the Constitution: "The Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof". That provision has been made little of in this House on occasion. Before I entered the House it was made little of by the party who are now in office in regard to the Livestock Marts Bill, when it was repeatedly said to them by this side of the House that the Bill was unconstitutional. They paid no attention, but in due course it was found to be unconstitutional by the Supreme Court. In another instance in 1970—admittedly there was no contention between the sides then, my party were at the time anxious to facilitate the party in Government—the Dáil and Seanad passed the Committee of Public Accounts of Dáil Éireann (Privilege and Procedure) Bill which was intended to facilitate the inquiries of the committee into the disappearance of £100,000 of public money during the Northern Ireland crisis of 1969-70. That Bill passed through both Houses in one day. It carried a fatal flaw in it for which I must accept some of the blame. If I had sat down and studied it for five minutes I would have spotted it. I did not do so. I was so carried along by the euphoria of total inter-party collaboration in trying to get the Bill through both Houses in order to facilitate the committee, I do not believe I ever read the Bill properly. That legislation was in due course shot down by the Supreme Court to the embarrassment and humiliation of the then Fianna Fáil Government.
Not every right to litigate can be protected. Any retrospective validation will cut off some of these rights. The right to litigate, which carries on its back the right to a livelihood, the right to some personal constitutional value which the courts have recognised, cannot be incontinently cut off. It is to try to preserve such rights that I have inserted this proposed section. If we enact it, it will be seen that the Dáil is conscious of its obligation not to legislate across constitutional boundaries and are conscious also of the duty laid on the State by Article 40, section 3, not only to respect but to defend and to vindicate the personal rights of citizens. If there is a remote chance of anybody feeling that a personal right has been bruised by a Bill of this kind, which purports to make legal that which is now illegal, we ought to include a saver of this kind to spare us the reproach of having ridden roughshod over its possibilities.