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Seanad Éireann díospóireacht -
Thursday, 22 Mar 1945

Vol. 29 No. 23

Military Service Pensions (Amendment) Bill, 1945—Report and Fifth Stages.

I move:—

In page 4, to delete lines 12 to 38, inclusive.

I really put this amendment down again so as to give the Minister an opportunity of informing us of the Attorney-General's opinion. We discussed the matter at length yesterday.

I have been in consultation with the Attorney-General and his first worse fears have been realised. I understand that there are a number of cases in which conditional orders have been made absolute and it is possible that there may be others.

Have been?

Actually have been. In a number of cases in which conditional orders have already been granted, they were made absolute and he made it pretty clear to me that the courts do not take any cognisance of legislation that is pending.

The Minister told us yesterday, quite unintentionally I am sure, that there were no conditional orders made absolute. Now that he has said there are, the technical arguments must go completely by the board.

I was only just making the point, the point which probably guided the Attorney-General, that the law must be there. It is only the law that is there that the courts recognise. That is the actual position at the moment.

Amendment, by leave, withdrawn.
Question: "That the Bill be received for final consideration"—put and agreed to.
Agreed to take the Final Stage now.
Question proposed: "That the Bill do now pass."

Before this Bill becomes law I should like to register a protest against its becoming law. That protest I would have made during the debate on the Second Stage had I been present, but I was absent through circumstances over which I had no control. The Supreme Court decision clearly sets it out that the Referee had violated the terms of the Military Service Pensions Act as he had failed personally to take evidence from the applicants for pension certificates.

It is an Article of the Constitution that the decision of the Supreme Court shall, in all cases, be final and conclusive. It is also the undoubted law of the land that no court, tribunal, referee or commission can be legally established to question, determine, or dispose of the lands, goods, or any other rights of any citizen in an arbitrary manner, and because the Referee dealt with the claims of applicants under the 1934 Act in an arbitrary manner, the applicants secured a favourable decision, a decision which other applicants would undoubtedly secure if this Bill did not become law. The 1934 Act definitely placed on the applicants for military service certificates the onus of proving their claims and it set out that the claimant shall be at liberty to offer such evidence as he may consider necessary to discharge such onus. That liberty should be fully vindicated and defended under Article 40 of the Constitution.

Under Section 5 of the 1934 Act, the Referee was given all such powers, rights and privileges, for enforcing the attendances of witnesses and examining them on oath, as are vested in the High Court or a judge thereof in respect of the trial of an action. I do not suppose that any person would suggest that a High Court judge could be authorised to deal with actions in a similar manner as the Referee is expected to do if the Bill becomes law. The Referee should have proceeded strictly in accordance with such powers and the Supreme Court has definitely decided that he was wrong in not doing so. He had no power whatever to dispose of any applicant's claim behind the applicant's back——

I am afraid the Senator is now making a Second Reading speech.

I am trying to prove, Sir, that certain rights of the citizen will disappear if this Bill becomes law.

The Senator may not be aware that there is no possibility of amending the Bill now.

I protest against this Bill because of that. It seeks to legalise something in the nature of a star chamber tribunal. Such courts were finally abolished and are now things of the past. The State, under Article 40 of the Constitution, guarantees in its laws to respect and defend and vindicate the personal rights of the citizen. Furthermore, in the case of injustice done it guarantees to vindicate the life, person, good name and property rights of every citizen. The Supreme Court decided in those cases before it that injustice was done to certain applicants when the Referee had failed to take evidence from those applicants. Are not the same rights to be vindicated for every citizen who has suffered an injustice? This can no longer be so, it seems, if this Bill is passed which is another reason why I protest against it.

It has been argued that one of the reasons for giving such powers to the Referee is that the large number of applicants necessitated the procedure he adopted. That excuse, or reason, is not just. I am sure that many members of the Chamber know, that under the Damage to Property Acts, many cases were heard in the different circuit courts throughout the country by the judges presiding there. These cases were heard in open court. Oral evidence was tendered by applicants whose property was damaged and reports were made to the Minister for Finance. There was no suggestion that there was any need for unanimity so far as the decisions were concerned at all. The cases all dealt with the same period. I hold that a person whose rights are interfered with is more entitled to impartial justice than citizens whose goods are damaged and it is because I feel that way that I protest against this Bill becoming law.

The Bill which is now submitted to this House for final consideration has caused grave uneasiness to many, people not merely concerned as to the manner in which claims have been built, but people who are not concerned at all with the administration of the Act of 1934. They are those who feel that there is an innovation here. Over a period of years we have had introduced in the Oireachtas many measures which have caused uneasiness because of the tendency they disclose, a tendency to ignore settled law and to impose upon it regulations suitable to the Government of the day.

That does not apply to one Government only, but to every Government which has taken office in this country for the past 23 years. I am opposed to this Bill getting the imprimatur of this House. I recognise that whether or not the motion now before you, Sir, is carried, the Bill will become law in the prescribed period set out in the Constitution, but we can, at any rate, so far as this House is concerned, make it clear that we do not approve of this method of approach to problems such as are dealt with in this Bill.

One might talk about the administration of the Act of 1934 from many angles. The Minister discussed it from one angle on a number of occasions, and we all recognise the difficulty he is confronted with now. We have indicated what we consider would have been a different and a better approach to the problem but we are, at any rate, confronted now with the Bill and we have to say whether we are in favour of its passage or not. When this Bill becomes law any irregularity that has taken place becomes valid. I think the Minister himself recognises that there have been serious irregularities, apart altogether from technical irregularities. It was represented to me, for instance, that a claimant who was associated with the late Terry MacSwiney, who was on hunger-strike with Terry MacSwiney, and had actually a longer spell than Terry MacSwiney by four days, but survived, has been refused a service certificate under the 1934 Act. There may be good technical reasons for that. I do not know and I am not proposing to go into the details of the case, but it seems to me an extraordinary thing that somebody in that position has been refused a certificate under the Act of 1934. It would appear now if Terry MacSwiney were alive, and an applicant for a service certificate, that he stood a good chance of being refused. I am not talking at all of pensions. I am talking of service certificates. On the other hand it has been reported to me by committees of the Old I.R.A. that in one particular case a person who was charged with serious offences, courtmartialled by the I.R.A., and expelled from membership, was appointed a certifying officer under the Act of 1934 and refused certificates to the members of the courtmartial. I am drawing attention to these facts because these incidents have been validated by this Bill. I am opposed to the Bill becoming law and I propose to vote against the motion.

I do not want again to discuss Section 3. There was a discussion on that section yesterday, and I think many of the warm supporters of the Minister felt uneasy about its implications. I am quite sure the Minister, if he were a free agent, would also feel uneasy about its implications, because let us bear this in mind, that once we establish a precedent it is going to be used by others at a later stage. Without attempting to introduce old incidents into this discussion, something I would deprecate very much, I might recall that a measure introduced by the Government of Cumann na nGael, which was opposed bitterly by the members of the present Government when in Opposition, and was immediately scrapped when they took office, was later revived by them to meet a situation which confronted them as a Government. I refer now to Article 2 (a) of the old 1922 Constitution. The Minister will probably find on a change of Government that the machinery of this Bill will provide for the successors of the present Government a headline, and probably an instrument for doing something which the Minister and his colleagues and supporters would consider highly objectionable to-day.

It may be used for purposes that are not contemplated because whatever Government is in power is going to take the short cut, and if they find some instrument at hand which seems to suit the immediate purpose it is going to be used no matter how objectionable it may appear to the Opposition. I urged the Minister to have regard to the implications of this Bill and what it is going to mean in the future. On the Second Stage I used a number of arguments to show that the Bill should not get a Second Reading. The Minister in his reply, I would respectfully suggest, did not advert once to the case I made against the Bill. He adverted to something apart from what I said and from the case I made. It is very easy to demolish a case which is built up for the purpose of being demolished. There was no attempt to demolish the case I made. No advertence was made to that case by the Minister. It may be asked, why not have opposed the Second Reading? I will explain that from my angle, and the angle of those who sit on this side of the House. Had we opposed the Second Reading we would not have prevented the Bill becoming law, but we would have deprived ourselves of the opportunity of amending it. Therefore, we permitted the Bill to get a Second Reading although that attitude was misrepresented in a certain newspaper. It indicated that there was agreement in this House on the Military Service Pensions (Amendment) Bill. There was no such agreement, but there was an understanding that if the Bill got a Second Reading we would have an opportunity on subsequent stages of introducing amendments. These amendments were introduced, very moderate amendments indeed.

No amendment was introduced which would in any way interfere with the principle of the Bill, but there were two or three attempts made to modify some of the most objectionable features of the Bill. These were resisted by the Minister. The amendments were put to the vote and were defeated. It was notable, however, that on these divisions a number of members of this House considered it expedient to absent themselves from the Division Lobby. The total number who voted on the first division yesterday numbered less than half the members of this House—29 Senators voted out of a total of 60. I propose to give them an opportunity of reconsidering their position. Those who have been abstaining so long will have an opportunity of saying on this stage whether they are in favour of this Bill becoming law or not. If they vote for the Bill they are voting not merely to deprive men having a reconsideration of their cases to which they are entitled under the decision of the Supreme Court, but they are establishing a precedent and a principle in our law which may have very far-reaching consequences for this community in the time to come. I content myself with saying that so far as I am concerned I propose to have this motion put to the vote and to vote against the motion.

Much of the time spent on the debate on this Bill seems to have been based on fears as to the consequences if we do an unprecedented thing, and perhaps create a precedent that on some future occasion may be used to the detriment of the citizens as a whole. I am going to suggest that the basis of all law is common sense. I am impressed by the case that the Minister has made for the passing of this Bill, and I have no hesitation in saying that I am going to support its passing. The Bill is surely without precedent in our history. It is a Bill dealing in an unique manner, if you like, with an unique situation. It deals with the consequences of the travail that brought our present political State into existence. We hope we shall not have a repetition of the situation with which this Bill proposes to deal. However unorthodox the procedure may seem, I feel that the Minister has convinced the House that it is sound common sense to give him the powers he seeks to deal with a unique situation in a manner which, if unique, is, to my mind, the only businesslike way of dealing with it. Without further ado, I place on record my intention to support the passing of the Bill.

Béidir gurb é seo an Bille deireannach, a bhainfeas díreach le ceist seo na bpinsean, a bheas os comhair an tSeanaid agus, ar an abhar sin, ba mhaith liom beagán a rá ina thaobh. An Seanadóir atá tar éis labhairt, mhínigh sé cuspóir agus brí an Bhille agus mhínigh sé go maith é. Teastaíonn uainn na pinsin seo do thabhairt do na daoine a thug seirbhís don tír—na daoine a bhfuil ceart acu na pinsin d'fháil. Teastaíonn uainn na pinsin seo do thabhairt dóibh chomh luath agus is féidir agus gan iad a bheith ag fanacht leo ach achar réasúnta. Nuair a ritheadh an chéad Bhille, fuarthas amach go raibh sé lochtach. Má gheibhtear amach dlí bheith lochtach, i dtreo nach féidir aigne an Rialtais a chur i bhfeidhm, agus cothrom na féinne a thabhairt, nach bhfuil de dhualgas ar an Oireachtas an dlí sin d'athrú agus do leasú. Cad eile atá á dhéanamh san mBille seo? Is réasúnach an rud é seo do dhéanamh agus, ós rud é go bhfuil sé réasúnach, nach ceart don Tigh seo glacadh leis an mBille? Tá daoine áirithe míshásta toisc nach bhfuair siad pinsean. Nílim chun an cheist seo do phlé anois. Ach na daoiní a bhfuil ceart acu pinsean d'fháil, ba cheart dóibh é d'fháil taobh istigh d'achar réasúnach, agus ní mór linn dóibh iad. Thuilleadar iad.

Ba mhaith liom aon iarratas amháin a dhéanamh ar an Aire. Táimid ar tí pinsin a thabhairt do dhaoine a thug seirbhís fóinteach don tír. Is ceart sin mar dúirt mé, ach tá a lán daoine a thug seirbhís dílis tairbheach don tír agus nár chuir isteach ar phinsean. Do réir an dlí, mar tá sé fá láthair, ní bheadh ceart acu seo pinsean d'fháil ach ar ndóigh nílid á iarraidh. Ach ba mhaith liom dá gcuimhneodh an tAire agus an Rialtas go raibh na daoine seo páirteach go mór sa troid agus is iad na daoine sin, aithreacha agus máithreacha, dearbhráitheacha agus dreithiúracha na bhfear agus na mban fhéin a chuaidh amach sa gcath. Bhí orthu seo fanacht sa bhaile, ach d'fhulaing siad chomh mór agus na fir a bhí amuigh ag troid agus rinne siad sár obair ar son na cúise. Arm gan ainm iad seo. Ni bhfuighe siad pinsean. Ach ní ceart a seirbhís ná a gcuimhne a dhearmad. Ba choir meas na tíre orthu a theasbaint i slí a bheas buan, mairtheannach. Is ceart cuimhneamh ar na daoine seo agus chomh luath agus bheas deis ag an Aire tá suil agam go gcuirfidh sé nó duine nó dream éigin eile scéim os comhair an Rialtais chun cuimhneacháin rathúil do thógáil in onóir do na daoiní seo.

Ba mhaith liom an óráid a thug an tAire ar an Dara Céim d'fhoillsiú ar fud na tire go leir. Dá ndéanfaí sin, táim cinnte nach mbeadh na daoine atá míshásta anois toisc nach bhfuair siad pinsin míréasúnach faoi i bhfad eile.

I feel that it is my duty to reassure the House, and especially those Senators who supported me in getting the Bill through, regarding the many misinformed statements made in respect of this measure during its passage through the Oireachtas. I want to impress on Senators that, in no circumstances, can there be any question of inflicting injustice upon these applicants. Each one of those applicants has been heard in accordance with the Act. Each applicant has been granted all the facilities necessary to make his case. As I outlined on a number of occasions, the application, when put in, was examined. If it was found that it established a prima facie case, it was submitted to the advisory board. The applicant had an opportunity of making his case to the board. If he had a case, he could bring whatever witnesses he deemed desirable before the board. If he was in a position to procure written or other evidence, he was entitled to produce it. If he was granted a certificate and was not satisfied with the period of service granted him in that certificate, he could appeal against that. If he was not granted service, he could appeal against that also.

The Referee, by way of precaution on behalf of the applicant, gave 28 days' notice to members of the brigade committees. That was not provided for in the Act. It was done by the Referee as an additional precaution in favour of the applicant. That 28 days' notice allowed the verifying officers— the man's own comrades—to object either to the amount of service granted or to the lack of service granted. The Referee held up his decision, which, in this case, would, presumably, be an adverse one, until the verifying officers came along. They again stated their case on behalf of the applicant. At the end of the 28 days, if the Referee was still unconvinced so far as the service was concerned, the applicant was granted a further period of 21 days in which to appeal. During that time, he was permitted to secure any additional evidence available to him. If he again failed to convince the Referee that he had a case, he had an appeal to the Minister and that appeal was granted if the applicant could produce evidence which had not been already available.

In that connection, I want to repeat that 12,000 persons availed of that appeal and, of the 12,000, 900 were heard. And of the 900 appeals which were heard more than 500 were successful, which goes to prove that if an individual even at the eleventh hour was in a position to satisfy the Referee that there was evidence there which proved that he was an applicant to whom the Act applied, that justice would be done. With all these precautions it amazes me to hear sensible members of this House and of the other House talking as if this Bill, which is, in fact, a retrospective measure, and which is merely endeavouring to validate acts of the Referee in the past, would cause injustice. It will not inflict any hardship on anyone.

I submit to the House that it would be practically impossible to provide any better means of protecting the rights of the applicants than has been produced under this Bill. Not alone did the Act itself and the Referee ensure that the applicant's rights would be safeguarded, but on the Advisory Committee itself were two representatives of the Old I.R.A. to ensure that the rights of Old I.R.A. applicants would be safeguarded. Also, two of the four investigating officers were Old I.R.A. men. If there is any better means of safeguarding the rights of the applicants, I should like to hear them. I stated already that there has been no charge against the Referee in respect of any act of injustice against any applicant, and, if that is so, and if this is a retrospective measure to validate the acts of the Referee, I cannot see where there is anything to grumble about.

Question put.
The Seanad divided: Tá, 20; Níl, 13.

  • Clarkin, Andrew S.
  • Concannon, Helena.
  • Counihan, John J.
  • Crowley, Tadhg.
  • Healy, Denis D.
  • Hearne, Michael.
  • Hogan, Daniel.
  • Johnston, Séamus.
  • Kehoe, Patrick.
  • Kelly, Peter T.
  • Kennedy, Margaret L.
  • Magennis, William.
  • O Buachalla, Liam.
  • O'Dea, Louis E.
  • O'Reilly, Patrick John.
  • Nic Phiarais, Maighréad M.
  • Ruane, Thomas.
  • Ryan, Michael J.
  • Stafford, Matthew.
  • Summerfield, Frederick M.

Níl

  • Baxter, Patrick F.
  • Douglas, James G.
  • Doyle, Patrick.
  • Duffy, Luke J.
  • Hayden, Thomas
  • Keane, Sir John.
  • Kyle, Sam.
  • Meighan, John J.
  • Parkinson, James J.
  • Ruane, Seán T.
  • Smyth, Michael.
  • Sweetman. Gerard
  • Tunney, James.
Tellers: Tá, Senators Hearne and Hogan. Níl, Senators Duffy and Smyth.
Question declared carried.
Ordered: "That the Bill be returned to the Dáil without amendment."
Barr
Roinn