SEANAD IN COMMITTEE.
SECTION I.
(1) No action or other legal proceeding whatsoever, whether civil or criminal, shall be instituted in any court of law or equity in Saorstát Eireann for or on account of or in respect of any act, matter, or thing done, whether within or outside the area of jurisdiction of the Provisional Government or the Government of Saorstát Eireann, since the 27th day of June, 1922, and before the passing of this Act, provided such act, matter, or thing
(a) was done or purported to be done for the purpose or in the course of the suppression of the state of rebellion created by the attempt to overthrow by force the lawfully established Government of Saorstát Eireann (including the Provisional Government), and
(b) was done in good faith, and
(c) was done or purported to be done in the execution of the duty of the person doing the same, or for the public safety, or for the enforcement of discipline or otherwise in the public interest, and
(d) was done by a person holding office under or employed in the service of the Provisional Government or the Government of Saorstát Eireann in any capacity whether military or civil, or by any other person acting under the authority of a person so holding office or so employed.
(2) If any such action or proceeding as is mentioned in the preceding sub-section has been instituted, whether before or after the passing of this Act it shall be discharged and made void, subject in the case of an action or proceeding instituted before the passing of this Act to such order as to costs as the Court or Judge may think fit to make.
(3) This section shall not prevent the institution or prosecution of
(a) any proceedings by or on behalf of the Government of Saorstát Eireann or any Minister or Department of that Government, or
(b) any proceedings in respect of any alleged rights under, or breaches of, any contract, or
(c) any civil proceedings founded on negligence in respect of damage to person or property, or
(d) any proceedings respecting the validity or infringement of a patent, or
(e) any proceedings under the Damage to Property (Compensation) Act, 1923 (No. 15 of 1923), or (f) any proceedings for enforcing or otherwise giving effect to any final judgement given by any Court in Saorstát Eireann before the passing of this Act and from which no appeal lies by law or is pending at the passing of this Act.
I move in line 25 to substitute for the words "any act, matter, or thing" the words "military acts." The meaning of my amendment is that the Indemnity shall only be in respect of "military acts" committed during the trouble. A similar amendment was moved in the Dáil but was turned down, and I have not the least doubt that a similar fate will meet this amendment here. To quote an illustrious Senator, "I only want to let the Seanad know what it is doing when passing this Bill." This Indemnity Bill as passed by the Government is going to indemnify the Government and its forces for everything they did, without giving the chance to any other Parliament to say whether these things were right or wrong. The Bill proposes to indemnify everybody acting on the side of the Government during the struggle for "any act, matter or thing" done.
An Indemnity Bill is necessary. That is understood, but this Bill is, I think, in many respects one of the most sweeping, if not the most sweeping, ever introduced. We know that there were many grisly tragedies enacted during the recent struggle and people acting on behalf of the Government are at least suspected. Some day it may be proved that they did acts which were not in the public interest and which certainly were not done in good faith, and which were grave crimes against human life and ordinary human and public morality. This Bill seeks to indemnify any person for any act he may have done.
AN CATHAOIRLEACH
That is quite inaccurate. For example if acts were done as you suggest in bad faith they are expressly excluded from the operations of the Bill because one of the provisions is "provided it was done in good faith."
I am not overlooking that, but the person making a claim has to prove that it was not done in good faith. The extraordinary thing is that you have got to prove the negative. A man can state he did the act in good faith and you have to prove that inwardly in his mind the act was done for some other reason. If the expression "military act" was used one could understand, but the Bill gives absolute carte blanche to people to do acts and deeds of any sort, ridiculous deeds, such as going in and smashing up the furniture in a house. A man who did so can say he was doing it in the interest of the State and in good faith. It leaves a citizen open to be maltreated and subjected to all sorts of violence and abuse if these words are left in. I think the Bill should be confined to “military acts” committed under orders of a superior officer or someone on their behalf.
I want to ask the Senator what his definition of a "military act" would be.
It would not be for me to define "military acts." That would be a matter for definition. Everyone knows what a military act is in the broad sense.
I would like to remind the Seanad that much the same opposition as we have here was offered in the Dáil to this Bill, and much of the same sort of vague amendment was put down. If a military act be intended to mean an act performed by a person in military uniform, or a person under the control of the military or something of that sort we would understand what was meant by it. I think the Seanad must consider the nature of the opposition to the Bill in the Dáil and the nature of the opposition here. In the Dáil we were informed that quite a large number of what has been termed in the Seanad "grisly affairs" have occurred during the last twelve months. One would naturally come to the conclusion that during the last twelve months a list of heinous offences could be alleged against persons acting, or purporting to act on behalf of the Government, in the suppression of the rebellion. I deny that point blank.
A few, or a comparatively small number of cases have been alleged against the Government or against Government supporters—a relatively small and insignificant number. These are held up to public odium and criticism and to the discredit of the Government and the military without one single sentence of condemnation for the other side, leaving people to believe that practically all the acts of aggression during the last twelve months were committed either by or on behalf of the Government. I submit that that is an unfair picture of what we have experienced during that period and a very unfair picture. There were cases in which furniture was broken up. From what investigations I have been able to make the number of cases amount to about nine. I did not countenance and do not wish to get immunity for any person or for anybody so engaged, but I do say that in one case in the constituency that I represent a house was burned by Irregulars. The following night the houses of three Irregulars were burned. The night after every Irregular in the country had his furniture in the out-offices. No other houses were burned there.
I have not said so, nor do I know whether the Senator would approve it in the same case. I present the picture for the consideration of the Seanad, and even with that experience before the Government we did not adopt what, in the view of a great many people of this country, would have been the correct method of dealing with a matter of that sort. As far as I know six cases were reported to me in Dublin. I do know that on one occasion when a house belonging to a very dear friend of mine was burned the proposition was put to me that the houses of a half-a-dozen Irregulars should be "sent up." I said no, certainly not. If that had been done I believe it would have stopped the thing, but we could not mortgage the good name of the people of this country by such methods, and we had to put up with the loss that was occasioned.
We are not seeking in this Bill for immunity for offences committed by persons under our control. There are many exhaustive provisos in the Bill. We are asking for an indemnity for our troops and for our officials similar to that we granted to the British troops and to the British officials in January or February of this year. I think the Bill is in its terminology practically the same, with scarcely any difference between them. Having regard to the hard, difficult and arduous time that our troops and our officials have had this is the least we could ask on their behalf.
In September last year, after due notice, several resolutions were passed in the Dáil directing the Army to provide committees, tribunals, or military courts to try certain persons. There was no statutory authority given to those committees, tribunals or military courts. The military officers appointed to these courts did their duty by the terms of the resolution we passed. It was not statutory. They had not come to us to ask for this Bill and they made no conditions, when they were discharging their duties, that a Bill of this kind should pass. I put it to the members of the Seanad, knowing the difficult time through which we have passed, and the circumstances through which we secured the co-operation of these officers, are we justified in going to the country without an indemnity Act of this kind? If they are satisfied that that is a matter which should be dealt with by the next Parliament that is their responsibility. I say that it is our bounden duty to present this Bill for the consideration of the Seanad and ask them to pass it, to vindicate the honour of the Government, not the political Government but the State, and to show the people, who have assisted us in suppressing this disturbance, that their act has met with the approval of the highest institution in the country.
The President has said that we were only attacking the acts of the Government, or rather the party to which he belongs, whatever that may mean. He thought that we were not saying one word about the other side and we thereby imputed all the crime, if there be any, to the Government. I do not think that is fair. I do not think that anybody in either House has made such a statement. I believe that members of the Seanad condemned strongly, perhaps more strongly, what has happened on the other side than what has happened on this. I would say that, probably, a thousand times more has been done by the other side than had been done by this, and I make no secret of that, nor do I slide over it in the slightest bit, but if the other side—the Irregulars—were to come forward with an Indemnity Bill to this Seanad I would insist on some sort of enquiry, and I would refer to their actions as I would refer to these which I have had occasion to refer to. I make no accusations against the Government or against the Army in these matters. We are under the difficulty of not knowing what is in this Bill. If this Bill means an indemnity to a great many things that have been done I am willing. If it means the acts of any officers, police or anybody else under direct orders of superiors I am willing. It may be all in the Bill. If it means an indemnity to all sorts of irregular things done by all sorts of people without orders, and done merely because they had good intentions I do not agree.
If Senator Moore before he spoke had read the sub-sections of Clause One he would have seen that the criminal actions so far as one could judge are not indemnified by the Bill. The sub-section means, apparently, that anybody who has been injured criminally, and not in genuine good faith and not under orders, has a right hereafter to plead the clauses of this Bill. I do not think that criminal action such as Colonel Moore has pointed to will be protected. I was rather astonished to hear Senator O'Farrell opposing an Indemnity Bill of this class because there is no doubt that we were with him on a good many of his remarks, and regarding the indemnity which we hope to see on both sides. We must remember that before very long I have no doubt we will have proposals on the subject of an indemnity as regards the political prisoners now in gaol from Senator O'Farrell. He will, undoubtedly, try to get us to back him up, and at the proper time and when it is safe he will receive our cordial and most appreciable consideration of the case when he puts it, but when he does that he will have to remember that if he opposes this Bill where, undoubtedly, the ordinary citizen believes that the men who committed these acts ought to have this indemnity we might hold the same views of the acts of those now in gaol. It will take a great deal larger measure to pass an indemnity for all those in prison than it will to pass an indemnity for those who by their acts have secured the peace which we now have, and I do not think it is wise for any section of the Seanad at present to oppose an indemnity for those who acted under Government orders.
I am glad of Senator Jameson's statement because I think it is the general feeling of the Seanad that it would not be in the interests of peace or good Government to refuse this Indemnity Act, but we should make it clear when passing it that we are acting as in the case of other Bills because of its urgency, and that there has been no opportunity of considering it in detail. The question of good faith is the kernel of the whole Act and I would not like to suggest it here that the breaking of furniture could have been done in good faith or that the persons who sent these persons intended them to do so. There is one point I should like the Minister if possible to make a little more clear. In Section 2 it makes it clear that a statement signed by the Executive Council shall be evidence of certain matters. That I think is reasonable. The second Sub-section of Section 2 says:—
"Any such act, matter, or thing as aforesaid, if done by or under the authority of a person holding office under or employed in the service of the Provisional Government or of the Government of Saorstát Eireann shall be deemed to have been done in good faith unless the contrary is proved."
If that applies to an act certified by the Minister I would not quarrel with it. But if it refers to all the acts I certainly would.
AN CATHAOIRLEACH
I think that will be the construction upon it in a Court of law. It is a Sub-section to Section 2 and I think the words would be necessarily read and confined to the particular Section of which is a Sub-Section.
I would like to draw the attention of Senators to Sub-section 3 of Section (1).
"This Section shall not prevent the institution or prosecution of (a) any proceedings by or on behalf of the Government of Saorstát Eireann or any Minister or Department of that Government; or (b) any proceedings in respect of any alleged rights under, or breaches of, any contract; or (c) any civil proceedings founded on negligence in respect of damage to person or property; or (d) any proceedings respecting the validity or infringement of a patent; or (e) any proceedings under the Damage to Property (Compensation) Act, 1923 (No. 15 of 1923); or (f) any proceedings for enforcing or otherwise giving effect to any final judgement given by any Court in Saorstát Eireann before the passing of this Act and from which no appeal lies by law or is pending at the passing of this Act,”
I think that covers acts such as the breaking up of furniture, etc.
AN CATHAOIRLEACH
No; that only deals with cases where property is injured from want of care. It does not deal with cases where property was maliciously destroyed.
The meaning of my amendment is explained fully by the statement of the President who is always pleasingly frank in his opinions. He drew the picture of the houses of Irregulars being burned and said that immediately a marvellous improvement took place in the district. He did not quite state that it was a proper act which could come under this Indemnity Bill, but he asked the Seanad to draw a moral. It is quite conceivable that all such acts of that kind would come in provided that you could prove that the person committing them was acting in good faith. One can visualise to what extent that could be carried. A man could be slaughtered in his house simply because it was thought that he was an Irregular. As a matter of fact he might have been the reverse. That is not an extreme case because such things have been done. We have all heard the terrible tale of the three men who were found on the outskirts of Dublin. I heard of a case where one unfortunate man was taken out and done to death simply because he happened to be of the same name and lived in the same district as another.
Does not the Seanad see that encouragement might be given to irregular acts of members of the Army? The President says that the houses of four Irregulars were burned. How was it known that those were Irregulars? Does not that leave the whole community open to be the subject of acts of this kind owing to the alleged misconduct of the Irregulars? Senator Jameson is not right when he takes it for granted that I am to introduce a Bill for the amnesty of prisoners. I have no connection with them and if it were not for the people I represent neither the President nor Senator Jameson would be in their places to-day. If Labour had not stood solid and remained firm the public safety would not have been assured merely by the passing of an Act. It is an old custom for the Minister to fling taunts of this kind at us that we are aiding Irregularism. That is very unfair, and Senator Jameson, although he did not intend it, seemed to insinuate that we had sympathies with Irregularism. We are becoming inured to that, and no taunts or criticisms of that kind are going to to debar us from moving amendments and making criticisms when we think them proper. If it were not for the attitude we have adopted both Houses would be merely a sham from the point of view of being representative institutions. We have discharged our duties and Ministers, if they think fit, may taunt us with sympathies with Irregularism, but that will not deter us.
Amendment put.
The Seanad divided: Tá, 6; Níl, 31.
Tá
- Cummins, William.
- Duffy, Michael.
- Farren, Thomas.
- MacPartlin, Thomas.
- Moore, Colonel Maurice, C.B.
- O'Farrell, John Thomas.
Níl
- Barrington, William.
- Bennett, Thomas Westropp.
- Butler, Richard A.
- Counihan, John C.
- de Loughry, Peter.
- Desart, Ellen Odette, Dowager Countess of.
- Dowdall, J.C.
- Esmonde, Sir Thomas Henry Grattan, Bart.
- Gogarty, Oliver St. John, M.D.
- Granard, Right Hon. Earl of, K.P.
- Green, Mrs. Alice Stopford.
- Guinness, Henry Seymour.
- Irwin, Cornelius Joseph.
- Jameson, Right Hon. Andrew, D.L.
- Kenny, Patrick Williams.
- Kerry, Earl of, M.V.O., D.S.O.
- Love, Joseph Clayton.
- MacEvoy, Edward.
- MacKean, James.
- MacLoughlin, John.
- MacLysaght, Edward.
- Mahon, General the Right Hon. Sir Bryan, K.C.B., K.C.V.O., D.S.O.
- Mayo, Earl of, K.P.
- Moran, James.
- O'Dea, Michael.
- O'Rourke, Bernard.
- O'Sullivan, William, M.D.
- Poe, Col. Sir William Hutcheson, Bart., K.C.B.
- Power, Mrs. Jane Wyse.
- Wicklow, Earl of, D.L.
- Yeats, William Butler.
Amendment declared lost.
I have some other amendments that I hastily drafted, but in view of the fact that I had not time to draft them properly I will not move them but will content myself with voting against the Bill.
Clauses 3, 4, and 5 put and agreed to.
Progress reported.
Question: "That the Bill be received for final consideration," put and agreed to.
Question: "That the Bill do now pass," put.
The Seanad divided: Tá, 25
5; Níl, 5.
Tá
- William Barrington.
- Thomas Westropp Bennett.
- Richard A. Butler.
- Peter de Loughry.
- Dowager Countess of Desart.
- J.C. Dowdall.
- Oliver St. John Gogarty.
- Mrs. Alice Stopford Green.
- C.J. Irwin.
- Rt. Hon. Andrew Jameson.
- Patrick Williams Kenny.
- Earl of Kerry.
- Joseph Clayton Love.
- Edward MacEvoy.
- James MacKean.
- John MacLoughlin.
- Edward MacLysaght.
- James Moran.
- Michael O'Dea.
- Bernard O'Rourke.
- William O'Sullivan.
- Mrs. Jane Wyse Power.
- Earl of Wicklow.
- William Butler Yeats.
- Earl of Mayo.
Níl
- William Cummins.
- Michael Duffy.
- Thomas Farren.
- Thomas MacPartlin.
- John Thomas O'Farrell.
Question declared carried.
I understand that the Government are desirous of bringing the provisions of this Act into force immediately, as otherwise actions might be brought in Courts of law within the next seven days. That being so I wish to submit to the Seanad this resolution:—
"That it is hereby declared that the Bill entitled the Indemnity Bill, 1923, which has just been passed by this House is necessary for the immediate preservation of the public peace, health and safety, and that accordingly the provisions of Article 47 of the Constitution of Saorstát Eireann shall not apply to this Bill."
Is there any explanation to be given as to the difference in procedure between this Bill and the Public Safety Bill? We have in this Bill a resolution brought in, and in the case of the Public Safety Bill a new Bill was put through. What is the explanation?
AN CATHAOIRLEACH
I quite understand the difficulty that non-legal minds have in following this procedure. Might I say that the explanation is this. A resolution of this kind must be passed apparently at the same time as the Bill is passed. The resolution with regard to the Public Safety Bill was not passed in this Seanad when the Bill was passed. It was overlooked in both Houses, and that is the reason why this Bill was dealt with this morning in the Seanad. Now, we had a new Bill and the Government are not going to make the mistake they made with the other one in not having the resolution of urgency contemporaneous with the passing of the Bill and accordingly this resolution has to be contemporaneously passed with the Bill now before us.
I have to thank you for the explanation which might have been given to the Seanad earlier, so that it might know what it was doing, that is, if it is the intention that the Seanad is expected to know what it is doing.
AN CATHAOIRLEACH
That is a very violent assumption.
I do not know whether the Government's Law Advisors and themselves are to be congratulated on the amount of wisdom we have witnessed this day. As to the necessity of the resolution, is it seriously contended that it is necessary? If it was necessary to put this extraordinary Indemnity Bill through it is extraordinary why this Bill was not introduced at an earlier stage. One cannot get out of one's mind the suspicion that a lot of these Bills, some of them small, some large but all very important, have been held up to the very last days of the session of the Oireachtas and then rushed through obviously precluding us from having any proper discussion on them or putting up any amendments to them. It is of course a pretty old game and one that has been carried to excess in this case. Now we are faced with this resolution moved here to-day without notice of any kind. Even when the Bill was introduced there was not a word about a resolution of this kind being introduced, consequently I am going to vote against it.
This resolution may be very desirable or not, but I cannot see that it has anything to do with the preservation of the peace. You could tell us perhaps that if this Bill is not passed a lot of people would be put into prison but that has nothing to do with peace and the preservation of peace. I am not voting for or against this Bill because I have not read it, and decline to have anything to do with it.
I would like to assure the Seanad that the Government has not wilfully or otherwise kept back legislation with a view to deluging both Houses of the Oireachtas with it now. We have introduced legislation according as it was ready. I think it will be admitted that during the last 12 months very much more work had to be done than mere legislation. The consideration of legislation before it is brought forward here takes a very long time and it is quite possible in the first few years of our existence that some complications may arise. I do not at all subscribe to the interpretation that has been put upon such legislation as has been passed either here or in other places but that is a matter to be dealt with at another time.
I cannot help thinking that the Bills that have been put before the Seanad are something on all fours, with the German method of turning out marks. The printing presses in Dublin are turning out Bills almost as fast as the printing presses in Berlin are turning out marks. I hope they will be of more value than the German marks.
AN CATHAOIRLEACH
We are doing a good deal in the way of "remarks."
I understood you to say it was necessary that this Bill should have the force of law immediately, and if it was to have the force of law that this resolution should be passed with it. One cannot help thinking, or making comparisons erroneously it may be if this resolution is to be passed what has been done with the Military Defence Bill must be wrong. I think we will have to have another amending Bill to-morrow morning in the case of the Defence Bill. Because certainly we have passed from it for some time before the Minister came in and got Senator Jameson to move the resolution. I shall confine myself to protest by voting against the Bill.
AN CATHAOIRLEACH
I might mention to the Seanad that the only remaining matter to be disposed of to-day is the Report Stage and the passing into law of the Land Bill, 1923. I understand that considerable concessions are to be made by the Government when the Bill is being considered in Report and the official staff are at present engaged with the Minister in drafting the necessary amendments carrying out the agreed changes. That will require a little time and I think Senators would require to have copies of them in their hands before they are asked to pass them. Accordingly I suggest to the Seanad that it would be convenient after this motion has been dealt with to adjourn until after 2 o'clock when I understand from the Minister that he will be prepared to go on with these amendments, and that meanwhile they will be available to Senators.
I wonder if the Minister can give us any indication, if it is the intention to dissolve to-day and whether any further Bills are coming on?
There is another Bill on the paper.
AN CATHAOIRLEACH
That has not reached this House yet.
In answer to Senator O'Farrell's question I would like to say it depends upon when we get the Land Bill through the Seanad, and whether we would be in a position to deal with it to-day. I would like very much that both Houses would sit out to-night and finish the business. Failing that I will have to encroach upon the undertaking I gave to Deputy Johnson in the Dáil that we would not sit next week. I had to qualify that by saying that it would be necessary for us to sit one day. If that be so, I should say that we will sit on Wednesday. It will not occupy much time, and Thursday will be the latest day on which the Dissolution could take place.
How does the Constitution stand on the matter of the Dissolution? How many days must elapse between the Dissolution and the General Election?
I cannot answer that off-hand, but I should say if the polling were to take place on the 27th August, that it would be necessary to dissolve on Thursday next at the latest. Thursday is the last day we can sit if the polling takes place on the 27th August. I understand that the day of the Election is the day of the Nomination, and that the day of the poll is rather the day of discovery as to who has been elected.
AN CATHAOIRLEACH
That is a conundrum that is beyond me.
Motion put.
The Seanad divided: Tá, 29; Níl, 5.
Tá
- Barrington, William.
- Bennett, Thomas Westropp.
- Butler, Richard A.
- Counihan, John C.
- Desart, Ellen Odette, Dowager Countess of.
- Dowdall, J.C.
- Esmonde, Sir Thomas Henry Grattan, Bart.
- Everard, Sir Nugent Talbot, Bart.
- Gogarty, Oliver St. John, M.D.
- Granard, Rt. Hon. Earl of, K.P., G.C.V.O.
- Green, Mrs. Alice Stopford.
- Irwin, Cornelius Joseph.
- Jameson, Right Hon. Andrew, D.L.
- Keane, Sir John, Bart.
- Kenny, Patrick Williams.
- Kerry, Earl of, M.V.O., D.S.O., D.L.
- Linehan, Thomas.
- Love, Joseph Clayton.
- MacEvoy, Edward.
- MacKean, James.
- MacLoughlin, John.
- Mayo, Earl of, K.P.
- Moran, James.
- O'Rourke, Bernard.
- O'Sullivan, William, M.D.
- Power, Mrs. Jane Wyse.
- Wicklow, Earl of, D.L.
- Yeats, William Butler.
Níl
- de Loughry, Peter.
- Duffy, Michael.
- Farren, Thomas.
- MacPartlin, Thomas.
- O'Farrell, John Thomas.
Declared carried.
The Seanad adjourned at 12.10 p.m. until 2 o'clock.
