This Military Service Pensions (Amendment) Bill, 1945, has received so much publicity and has been the subject of so much misinformed criticism that it may not be out of place to summarise briefly its main purpose and content. During the past 10 years, as Senators are aware, a Circuit Court judge has been employed as Referee in determining applications for service certificates under the Military Service Pensions Act, 1934. In order to expedite the determination of claims, the Referee delegated, as he considered he had the power to do, certain subordinate and auxiliary functions to the members of the Advisory Committee and to interviewing officers. It was recently decided by the courts that this delegation was not strictly in accordance with the Act. It becomes necessary, therefore, to validate certain acts performed by those members and officers. The Government considers that it is in the public interest that this should be done and, accordingly, this Bill is brought forward to this end. That, briefly, is the subject and object of the Bill—to regularise in the public interest the past procedure of the Referee in dealing with claims for service certificates.
What then is the procedure which the Bill seeks to validate? Under the 1934 Act, the Referee had to be a judge, a justice, or a practising barrister of ten years' standing. Actually, a court judge was asked to leave his circuit to act as Referee, and that was done to ensure that every application was examined and justly determined.
Again, the Act prescribed what it called an Advisory Committee to sit with the Referee and to assist him in the exercise of his functions. That committee was to consist of two officers of high rank in the Forces together with two other persons, one nominated by the Minister for Finance and the other by the Minister for Defence. Actually, there were appointed two officers of conspicuous merit in the I.R.A. with two officials of senior rank in the Civil Service. For administrative work there was also appointed a secretary with a staff of civil servants.
Such was the statutory machinery prescribed by the Act for dealing with claims. As regards the claimants themselves, the Act prescribed that every application should be made within the prescribed time and should be in the prescribed form and contain the prescribed particulars. The Act was passed on 13th September, 1934, and the regulations prescribing the form on 18th October, 1934.
When the Referee and the Advisory Committee began to function on 17th December, 1934, they were faced with three problems: (1) how were claims to be verified? (2) how were claims, even so verified, to be determined internally by the Referee? and (3) how were claimants to be informed of the Referee's decision on their claims?
The first problem in order of time to be tackled was the third, relating to how claimants were to be informed of the Referee's decisions. It was actually dealt with by the Department before the Referee began to operate. On the 18th October, 1934, a regulation prescribed that each claimant would be notified in writing of the grounds of the Referee's decision, but the Referee was only a month in office when he decided that this could not be done in every case, and asked for the Order to be amended so as to make even a verbal notification sufficient. Even that did not work, for at the beginning of February, 1935, another Order was promulgated cancelling both the written and verbal notification. In point of fact from 1st February, 1934, until 21st February, 1936, no procedure was prescribed as to how applicants were to be informed as to the claims, but, on the latter date, an Order prescribed that the Referee should simply inform them whether the Act applied to them or not, and should allow them 21 days in which to appeal. These published statutory documents, therefore, show that even on the relatively simple question of the notification to applicants, the Referee was grappling with a problem of procedure from the very outset.
As regards the second problem of verification, the position under the 1934 Act was far different from that which obtained under the Act of 1924. Under the latter Act, verification of post-Truce service was available from documents existing in the Army, and it was not difficult to verify pre-Truce service, first because most of the witnesses were Army officers, and, secondly, because only three or four years had elapsed between the period and the date of examining the pension, so that memories were fresh on the subject.
Under the 1934 Act, however, an entirely different set of circumstances operated, because for one thing there was no documentary evidence on which the Referee could rely, and, for another, the memories of essential witnesses had not improved with the lapse of time between the passing of the two Acts. The difficulty was, however, solved by asking the various brigades throughout the country to set up committees, to compile brigade records and to choose members who would act as verifying or certifying officers before the Referee when the applications from their particular areas were being dealt with. The verifying officers were members of the Old I.R.A. who had taken a prominent part in the fight in their respective areas. They were drawn from both parties who had opposed each other in the post-Truce period, and they co-operated irrespective of the political and other differences which divided them. Their work was voluntary, and they sacrificed their time, leisure and business in order to do their best for their comrades and to see that the claims of any genuine applicants were not overlooked.
The Referee's third problem was what procedure was he to follow in determining the applications for service certificates. That obviously depended, within the frame-work of the Act, on the number of applications to be dealt with. Now, at the end of December, 1934, only 204 claims had been referred to the Referee, and I have no doubt that for a period the Referee followed the strict procedure laid down by the Act. But the year 1935 was not long in progress when the Department was inundated with applications. They were coming in at the rate of over 4,000 a month and by the final date, 31st December, 1935, the Referee was faced with the colossal task of dealing with 51,880 applications.
We know now that, in accordance with the Supreme Court's decision, the correct procedure was that the Referee should sit with the Advisory Committee to examine the information received before making his report to the Minister, and that he should be present when any person attended for examination as a witness. To deal with each case in that manner would have taken, it is estimated, about 75 years to complete the work, and that, of course, would be farcical as a practical proposition. The Referee could, of course, have come to the Minister at this stage and have pointed out that the strict procedure provided in the Act was impossible to operate, and in that case we would then have asked for the legislation we are asking for now, and I have not the slightest doubt that this House would have implemented our proposals. But the Referee did not do so. Under Rule 7 of the Order published in 1934, "the Referee subject to the provisions of the Act and these Rules, may regulate his own procedure." The Referee was a judge of the Circuit Court, and he considered that, within the provisions of the Act, he could allow the committee to take evidence either as a body or in pairs, and that he could then on the evidence received determine the claim of the applicant.
In the first months of the Act's operation, the Referee sat with the committee, but, at an early date, that procedure was abandoned and the committee alone heard the evidence, making recommendations in each case to the Referee. This procedure continued until 1940, when for about a year or so, the Referee again sat with the committee to hear the evidence. About the middle of 1941, this was again abandoned, and the evidence was taken by the members sitting in pairs, the Referee attending one or other of the sessions according as he deemed fit.
Whatever was the procedure adopted in particular cases, the fact remains that at the end of 1935, the Referee had reported on only 1,065 cases. The same rate of progress obtained during the first eight months of 1936, and in August of that year the Referee was asked if the work could be expedited by the appointment of four interviewing officers. The idea behind the proposal was that if the Advisory Committee, either as a body or as individuals, were relieved of or helped in the work of interviewing applicants, the output of reports could be increased enormously. The Referee saw no objection to the proposal and the officers were engaged in this aspect of the work from October, 1936, until April, 1942. Two of the officers chosen had been active members of the I.R.A., and the others were civil servants with long experience of administration. Where, therefore, the verifying officers were not actually biassed in favour of the applicants, they were men whose experience would enable them to bring out every favourable feature in the applicant's claim. Between the Referee himself, the Advisory Committee and the interviewing officers, no less than 30,245 persons were interviewed regarding their claims between 1934 and 1943.
Before April, 1939, only 64 rejection notices had been issued, but meanwhile the files had been scrutinised and any claim which did not seem on its face likely to succeed was put aside for rejection. Towards the end of 1938, an arrangement was made with the brigade committees whereby before the rejection notices were issued, the committees would be informed of the names of the persons concerned, so that if necessary the committees could make representations to the Referee about any person whose claim they considered to warrant further consideration.
I think this was a wise plan. On the one hand, there was no use putting applicants to the expense of coming to Dublin and encouraging false hopes and, on the other, it prevented the Referee from overlooking any point in the applicant's favour. Between 1939 and 1943 the brigades were notified of 45,416 rejections. This arrangement was, it will be noted, additional to the ordinary statutory notice of rejection in which the persons concerned had at least 20 days in which to appeal.
There were two kinds of appeal. The first was to the Referee after the issue of the 21 days' notice on the grounds of new or additional evidence or representations, and the second was to the Minister both before and after the Referee had reported on the grounds of evidence not available prior to the making of the report. These appeals were not mere meaningless formulae. Up to the end of January, 1943, the Referee had issued 11,329 qualifying and 48,538 non-qualifying reports giving all concerned 21 days in which to show cause why the report should not be made to the Minister. Against the qualifying notices there were 2,158 appeals and against the non-qualifying notices there were 23,238 appeals. In addition to these appeals, there were about another 12,000 appeals made to the Minister. Of that number, 922 were referred to the Referee for review and 508 of these were successful. The House can see for itself the amount of work involved in dealing with all this mass of material.
I have now described at some length the procedure adopted in determining claims for pensions under the 1934 Act, and I have outlined briefly the work of the Referee, the Advisory Committee, the interviewing officers, the verifying officers and the brigade committees. What I should like to stress at this point is that persons chosen to constitute the administrative machine prescribed by the Act were weighted in favour of the applicants. The Referee was a judicial personage whose only purpose was to administer the law irrespective of its consequence; the two civil servants on the Advisory Committee were appointed to strike a balance in carrying out an enabling Act; but the other members were I.R.A. officers, whose function it was to see that credit was given where credit was due. At least two of the four interviewing officers had active, indeed prominent, service with the I.R.A., and all the verifying officers from the 82 Brigade areas were bent on extracting the last ounce of credit for the applicants of their areas. Unless the procedure adopted was manifestly unjust —and there is not one tittle of evidence to that effect—indeed all the evidence points to the contrary—I cannot conceive any administrative machine so heavily weighted in favour of applicants as was that operated under the 1934 Act.