I will take the points one at a time as they were made.
On that basis what I am doing is acting very strictly in line with what the court did hold on this issue. Let me mention at this point, because the question has been touched upon, that I have taken advice in these areas—obviously any prudent Minister would take advice on any such issue. From the advice available to me in relation to interpretating the Supreme Court decision and as to what my obligations are in this area as Minister for Finance, I am satisfied that I am acting within the Constitution; otherwise I would not be introducing this amendment. I am satisfied also that I am acting within the spirit and letter of what the Supreme Court decided.
It is as well then that perhaps I should mention some basic principles first in relation to the law and then quote from the judgments themselves. The court ruled out other repayments on the grounds, amongst others, that it is not a universal rule that what has been done in pursuance of a law which has been held to have been invalid will necessarily give a good cause of action. They held that very clearly and this is not the first time that such decision has been taken. They also held very clearly and indicated that the State was entitled, in the absence of any claim of unconstitutionality, to act on the assumption that everything was presumed to have been done according to the law. This is not a new principle formulated by this Supreme Court because there is the principle that: Omnia praesumuntur rite et solemniter esse acta. That is a fundamental principle of all constitutional law and the court held here that the State was entitled, in the absence of any claim of unconstitutionality, to act on the assumption that the taxes in question were validly imposed, that they were properly transmissible to the Central Fund and that from there they were liable to be expended, according to the will of Parliament, for the multiplicity of purposes for which drawings are made on the Central Fund of the State. That is very consistent with all statements of principle in this area that have been made by any court reviewing constitutional issues. They also held that in the absence of special circumstances payments of PAYE taxes during the whole of the tax year without instituting proceedings to have the taxes invalidated on the grounds of unconstitutionality should be held to defeat a claim made later to recover the taxes paid during the year. For all of those reasons it is fairly clear that whatever Deputies opposite might want to imply to the court it would be as well to leave it to the court to speak for themselves. I have been as close to the courts as most Members of this House and it is a hazardous operation to start attributing things such as what the court might have intended or perhaps would intend if they were asked to do certain things, instead of relying on what they do say in discharging their functions.
Before I come to the quotations let me refer to what Deputy O'Leary has said. He said that if we do not do our job here the court will do it for us. That of course is not the case. In any event, where the court finds as is the established principle under our Constitution under the separation of powers, that they interpret the constitutionality of laws that are referred to in it and they, in discharge of their function, adjudicate on what is or what is not constitutional, the fact that from time to time they determine that certain actions which were done by the legislature may not have been in accordance with the Constitution is not a condemnation, as has been implied, of the legislature. If that was the case we would have immediate and open confrontation in any state that enshrined that very desirable principle of the separation of powers. There would be a simple way out of that which would operate probably in the dictatorships or authoritarian states. We would have no Supreme Court; it is as simple as that. We would not have this principle that is so important in our legislation and something that all sides of the House would want to cherish and support. But in so doing let us not interpret their decisions as being more than they are, more than they themselves could or would present them as being. Let us not interpret them as saying that they are doing the job which we should be doing. That is not the case. There are people in the media and people generally who do not really understand the principles that apply here. Of course one will find some general comment that might seem to suggest that Parliament did not do its work, that the courts had to do the work of Parliament. That is not the position that applies here. I shall quote here some of the statements made by Mr. Justice Henchy in the Supreme Court. He said:
In every tax year from the enactment of the Income Tax Act, 1967, until the institution of these proceedings in March 1978, the State justifiably altered its position by spending the taxes thus collected and by arranging its fiscal and taxational policies and programmes accordingly.
I might pause here to mention that it is not any accident that, apart from the Taoiseach, the only Minister of Government who happens to be mentioned in the Constitution is the Minister for Finance. This is because he too has a constitutional responsibility both in relation to the collection of revenue and to its disposal. Therefore, whoever holds this office for the time being must also discharge his constitutional responsibility. That is what Mr. Justice Henchy was referring to when he said that the State altered its position by spending the taxes thus collected and by arranging its fiscal and taxation policies and programmes accordingly. The quotation continues:
At the end of each tax year up to and including the tax year 1977-78, those charged by the State with auditing, controlling or planning the finances of the State, were, in the absence of any formulated proceedings or any other sound reason for doubting the validity of the taxes in question, entitled to close their books for that year——
Note the words, "entitled to close their books for that year".
——in the justified assurance that, if any of the taxes that had been collected, allocated, spent or been made the basis of projections for future taxation or fiscal policy, were to become at some future date judicially faulted, and having been unconstitutionally exacted, restitution of those taxes would not be ordered. For a variety of reasons it would be inequitable, if not impracticable, to expect restitution.
I note that Mr. Justice Henchy uses the word "inequitable" whereas Deputies opposite seem to use equity in a rather different sense. I can only say that, in so far as is concerned the principle that equity follows the law, I would prefer to be guided by the legal dictum of what is equitable than by the political interpretations that one would hear in this House. Mr. Justice Henchy continued:
Each tax year involves a different group of taxpayers, if only because of the deaths of some taxpayers and the accession of new persons to the lists of taxpayers. Restitution could be effected only by means of a special statutory provision, which would involve the imposition of fresh taxation to meet what would become an unquantifiable number of claims with the passage of time.
These are not my words, nor are they my interpretation of what might have been the Supreme Court decision. They are the words of Mr. Justice Henchy, whom I consider to be the best authority on which to rely in this case. He went on to say:
For my part, I consider that in the absence of special circumstances (which have not been shown to exist in this case), payment of PAYE taxes during the whole of a tax year, without instituting proceedings to have the taxes invalidated on the ground of unconstitutionality, should be held to defeat a claim made later to recover the taxes paid during that year.
On the assumption that no other taxpayer instituted proceedings, Mr. Justice Henchy went on to say:
No taxpayers other than the plaintiffs would have the standing necessary to maintain a claim that the State should reimburse them for any taxes collected under the condemned sections.
That, again, is straight to the point. Indeed, Mr. Justice Griffin held that the plaintiffs were entitled to recover the excessive amounts of income collected from them by the revenue authorities by reason of the aggregation of their income only in respect of the tax years, 1978-79 and 1979-80. He held also that unless proceedings had been instituted on behalf of any other taxpayers claiming the condemnation of the sections in question or seeking the recovery of any excess taxes collected from them, only the plaintiffs could maintain a claim in pursuit of the decision.
I have quoted enough from the judgments of the Supreme Court to indicate that the law and that equity as interpreted in the law, and which follows the law, has been clearly stated by the best authority in this regard, namely, the judges of the Supreme Court. What I am doing here in discharging my responsibilities as Minister for Finance is giving effect to those judgments. Of course, I have responsibility to the Exchequer as well as to the taxpayers, as I have a responsibility in relation to the disbursement of tax. Taking into account the advice that I have received, I am confident that what I am doing is entirely in accordance with the Constitution and with the law. Deputy O'Leary is right in saying that any Minister for Finance could go further. I do not expect that the Supreme Court would knock something that was done on the basis of extending benefits further. Of course a Minister for Finance could go back further than any issue raised here. He could go back as far as he considered appropriate in relating to applying the principles—to misquote myself but to quote the Opposition—of the Murphy decision. But legally I am not required to do that. In addition, as Deputies opposite know, for me to act in this way would involve major political decisions which would mean major expenditure of public funds, funds which would have to be provided by other taxpayers. We all recognise that the Minister for Finance of the day does not have money stacked away somewhere in little coffers or that all he has to do is to wave some kind of major wand——