On the section, I should merely like to say that I do not understand why it is that for work of this nature the Chief Justice should be brought into the Bill, or any judge of the High Court or Circuit Court. For the work proposed to be done under Section 13—the work of distributing money and weighing the claims of various people in needy circumstances to grants of a benevolent nature—judges, as such, do not seem to me to have any particular qualifications. It seems to me very unfortunate that the Chief Justice should be in a Bill of this kind to do that work, first because I do not know why that particular office— I am talking of the office rather than of the individual—should be considered for the work and, secondly, because whatever anybody may say about it the purpose of the Bill is in sub-section (1) of Section 10: that is to say, the Bill is for the purpose of taking a particular matter which is before the courts out of the courts. I think it is unfortunate that judges should be put into the Bill while, so to speak, the Bill's purpose is to take certain things out of the courts. In the circumstances, it would seem to me to be beyond the wit of any given chairman to protect the Chief Justice from attack, if there were people who wanted to attack him.
Sinn Féin Funds Bill, 1947—Committee and Final Stages.
Perhaps I should say a word about this. I should like to say at the start that the objection came as a surprise to me the moment it was raised first. I am not objecting, so to speak, to the basis of it, but I should like to explain that the proposal contained in the section originated in this way: First of all, in the draft Bill that was submitted to us—we really took it over to implement it—a judge was mentioned. If the phrase is causing any wonder—I explained this in the other House, and I do not know if I explained it here—I should say that the Government action really started by our getting from the representative of the last of the treasurers a proposal for the disposition of the money, and so on. That proposal was taken around to the surviving members of the Standing Committee of Sinn Féin, and there was a certain amount of agreement reached. It came to us, roughly, in the form of a draft Bill. My recollection is that in that draft Bill a judge was mentioned as chairman. That did not seem strange to me because, first of all, this board was getting very wide discretionary powers. There were only certain directives given in the Bill, and one would like to feel that there would be somebody who would understand the general purposes for which the money was being allotted. I did not think it strange then to have a judge as chairman of the board.
It occurred to me—I am afraid I am responsible personally for making the suggestion in the first instance—that, first of all, it was desirable to have someone who would have a fair acquaintance with the whole movement. I think the Chief Justice would have that. Secondly, the present Chief Justice was also chairman of the Red Cross Committee and had a certain amount of experience in that line. Consequently, from every point of view he seemed to be a suitable person. I have to confess that the objections that were raised in the Dáil never occurred to me. I do not think, however, that they have very much material weight if you examine them fully. It was objected, I think, in the other House that it was not fair to a judge who might have to consider whether the Bill itself was unconstitutional, that he should appear to be in any way committed in advance. It seems to me that there could be no question of that. If the Chief Justice consented to act in this way it would be on the clear understanding—that was obviously implied—that the Bill, when passed, would be constitutional. The Chief Justice in saying: "All right, if the Oireachtas passes the Bill, I am willing to function," was simply saying so to convenience the Legislature.
Anybody who has any knowledge of the work that will be entailed under this Bill knows that it is going to be very onerous work. It would be very onerous work for the Chief Justice if he took it himself. The possibility is that he would not find time to do so. As I have said, he was chairman of the Red Cross Committee, and I was fully aware of the amount of time that he gave to that committee. My own belief was that he would not find time to do this, and that what, in all probability, would be done was that he would nominate some other judge to act in his stead, as is provided for in the section.
What occurred to me first when I saw a judge mentioned in the draft Bill that came to the Government was that what was being done was to indicate clearly that there is no partisanship in this, and that it is going to be done impartially. While I am willing to admit that if this matter had originally occurred to me—that is, that objections were going to be raised in the way in which they were raised— I would have avoided it, because, I suppose, somebody else could have been got, but I think it would be very unfortunate, once the matter did come before the Oireachtas, if it were changed now, because it would seem to suggest that there was some real foundation in the objections that were made. I do not see any real objection. It is desirable to have someone who would know the law and who would generally direct the committee so as to keep in line with the intentions of the Bill. Then there is the feeling that you have an impartial chairman, and next you have the advantage of having a person of judicial mind as chairman. Since we have gone so far, I think that no real objection can be taken to the fact that the Chief Justice is to be chairman, and I would ask the Seanad to accept it on that basis.
I would like to say to the Taoiseach that I think he is quite misguided when he says that there is no real foundation for this objection. There is very real foundation for it and the Taoiseach's speech indicates that. I have not in mind the personality of the Chief Justice at all. I have exactly the same interest in the preservation of the courts as the Taoiseach has. Every member of this House is entitled to take any step that seems good to him to see that the courts are kept in the position in which they ought to be kept. That is not the special province of the Government. I have some experience of this type of committee and there are several things that fall to be settled. I think I am right in saying that, when the Chief Justice was originally put into the Bill, there was no case before the courts. I understood from the Taoiseach the last day that before any case was brought to the courts the surviving trustee was anxious to have the matter disposed of and this scheme was put up. It is one thing to have the Chief Justice in an arrangement when no case is before the courts; it is quite a different thing to have the Chief Justice in a Bill when there is a case relating to it before the courts. There is a real ground for objection there.
Without adverting to personalities, I am entirely at variance with the Taoiseach in holding that a judge is necessary in this case. I do not think that he is. He is no more suitable for the position, by virtue of his office or training, than many others, nor is it desirable that a judge should occupy the office. It is not a question of interpreting law, as the Taoiseach knows. After the Rising, there was a body known as the National Aid Committee and there was a Volunteer Dependents' Fund and other dependents' funds. I, myself, am chairman of a Post Office benevolent fund—the Rowland Hill Fund. We appoint certain types of persons as trustees but we should never think of appointing a judge, as such. My functions have nothing whatever to do with law when I act as chairman, nor do you require a judicial or impartial person except in so far as a great many people would be judicial and impartial in the distribution of money. What you need is a person with a soft heart and a hard head and a knowledge of law does not necessarily give you both of these things.
The real reason for the introduction of the Chief Justice, as revealed by the Taoiseach, is that he wants to prevent the notion of partisanship applying to this Bill. It seems to me that, in endeavouring to do that, and in putting a judicial smear on an action which is not judicial at all, he has done grievous harm to the people mentioned and, perhaps, to the courts themselves. The work will be very onerous. There will be a very small amount of money but there will be an enormous number of applications. I have seen a certain amount of this work done. I do not know what machinery has been devised for the purpose of testing these applications. What is required for this office is a person with a considerable knowledge of the previous circumstances. I could give the Taoiseach the names of several persons, not all belonging to my own Party, who would be suitable for this office. It will be very onerous work— work which no Chief Justice, I think, could himself undertake. Any judge who undertakes it will find that it will make serious inroads on his time without the feeling of getting very much done. It would have been much better to avoid all this fuss. This business of attacks upon judges would not arise if this section were not in the Bill in this form. We may learn from this experience that judges should not be put into any Bills except in a judicial or semi-judicial capacity. There are many cases in which judges come into Bills. In cases between a Minister and some person whose property is being taken from him, it is very often provided in Bills that, in the event of failure to reach agreement, there will be compulsory arbitration, the arbitrator to be a barrister of seven years' standing and to be appointed by the Chief Justice. That is the common form and, in that case, the Chief Justice is doing a job which, no matter what the régime, would be regarded as a proper job for the Chief Justice. That is different from the present case. This is wholly exceptional. I do not propose to discuss it but I want to put on record that it is very unfortunate it happened. I want to repeat that no chairman could possibly prevent a judge from being criticised when he occurs in this form in the section.
I do not think that the Senator is right in his last statement. The Senator has expressed his point of view and he has not attacked anybody.
What I said was that the chairman could not stop me if I wanted to do so.
I think that it could have been dealt with on its merits without the introduction of personalities. I stated that the Chief Justice was put in so as to make it quite clear that there would be impartiality in the distribution of the funds. That is a very different thing from the question whether this Bill is constitutional or not. Two points are involved, and we have carefully to distinguish between them. The Chief Justice cannot function under this Bill until it has passed the Oireachtas and has become law. If we get that clearly into our minds, we shall get the position in its proper perspective. There may be a difference of opinion as to whether or not this is a proper function for the Chief Justice, but the point is that he cannot function under this Bill until it becomes an Act of the Oireachtas. Once it becomes an Act, the Chief Justice will be merely facilitating the Oireachtas in acting as chairman, if he can act personally, or by appointing a chairman. That is very different from the complexion which it was sought to put upon this matter—that his name was brought in here for the purpose of giving some sort of judicial appearance to the Bill as a whole. The Bill must pass through Parliament on its merits. To take the statement that the Chief Justice's name was introduced so that there might be impartial distribution of the funds and to say that it was done to try to give a judicial colour to the Bill as a whole is not right.
On the question as to whether it is desirable that there should be a person of legal training in the chair, the terms of reference are set out in the Bill, and surely it is desirable that there should be somebody to see that these general terms of reference are carried out. I think that these two points are sufficient to justify what we have done. However, we have different points of view, and I admit that Senator Hayes is as much entitled to his view as I am to mine. I try to keep as open a mind as I can, and I admit that, if I had thought there would be anything like the personal attack which was made elsewhere on the Chief Justice, I should be very slow to expose him to anything of the kind. I think that I should be adding to the damage done if, because of a slight inclination on my part to meet opposite points of view, I were to give way at this stage. I think that the objections to the proposal to have the Chief Justice as chairman have no real foundation and that we should depend on the Chief Justice to act in that capacity. The work will be very onerous, and I doubt that it will be possible for him to act personally. Accordingly, he may have to appoint somebody else who will act as an impartial chairman in the distribution of the funds.
If he thought fit, could the Chief Justice appoint a retired judge to act?
There are other considerations. I would not like to deal with it at the moment because it raises a number of other issues.
It struck me that it might be possible that a retired judge with time available could be found.
I think it is better to leave it as it is.
I want to make it quite clear that I differ from the Taoiseach with regard to the desirability of appointing a judge to carry out any function which is not a judicial function. If he carries out any public function, apart from a judicial function, it means that he is doing something which may be criticised by certain people, and it is very undesirable that a judge should be sitting one day in court dispensing justice and next day carrying out any public policy which is open to criticism. The Taoiseach mentioned the Red Cross Society and I had intended to mention it myself. It was very undesirable that the President of the High Court should have become Chairman of the Red Cross Society, because certain people were entitled to take the line that they did not like the way the Red Cross Society did a certain job. It was undesirable that the president should have been put in the position that his actions were open to criticism, because obviously the Chairman of the Red Cross Society was open to criticism in relation to a certain action which came before the courts. It could have been suggested—I am discussing this entirely in the abstract and not on the basis of personalities— that it was the chairman's influence which made the Red Cross Society take a certain course and the fact that the chairman was at the same time President of the High Court was highly undesirable.
I rose to speak on this section for the purpose of registering my belief that the course of appointing a judge as chairman of the Red Cross Society, or to carry out a public function of any nature which is not judicial or quasi-judicial, is highly undesirable and is liable ultimately to mean that the court over which that judge presides will be brought into disrepute. So much for the general aspect.
So far as the particular aspect of this situation is concerned, I must confess, quite candidly, I understood the Taoiseach to say a few minutes ago that a judge was brought into this section for the purpose of making it appear, as will be the fact, I hope, that there would not be any partisanship. I understood Senator Hayes to hold the view that that was wrong, and so do I. I thought it was the Taoiseach himself who said it.
I do not think I said it in that way.
There are a whole lot of ways of saying the same thing.
Regardless of whether the Taoiseach said it or not, may I say—and the Taoiseach has told us that this came to him in the Bill— that I believe that was the reason it was put in the original Bill, perhaps before the Taoiseach saw it?
I do not think so.
I have very strong views on the subject of judges being asked to do anything which is not judicial and I think that was a very grave mistake. A grave mistake having been made by the Executive— the Taoiseach will, of course, agree that he must accept responsibility, once he introduces the Bill—in regard to an infringement of that principle, a further grave mistake was made by the head of our judiciary in consenting to adopt, so to speak, the mistake of the Government. I do not propose to put the matter any further, except to say that I consider that those two mistakes were made, and that, if the matter had not already been adequately ventilated, I would feel perfectly entitled to ventilate it and to express my views strongly on Section 4, but at this stage I do not propose to say any more than I have put on record.
There is one portion of Senator Sweetman's remarks with which I should like to associate myself. I do not wish to associate myself with any attacks in connection with this section, but in so far as he has expressed the view that it is undesirable that a judge, while acting as a judge, should be asked to undertake any outside work in respect of which it might be suggested there is any political partisanship or political flavour, the general principle he has enunciated is sound. I would suggest respectfully to the Taoiseach, however, that the same does not apply in the case of retired judges. When judges have retired, they have all their experience, both of law and of considering evidence, and they are people who are eminently suitable to be asked to become chairmen of inquiries, bodies, tribunals and so on. It may not be altogether germane to the particular section, but I suggest that the services of retired judges should be employed to a greater extent and that the services of judges who are acting as judges would perhaps be best employed exclusively on the particular functions which have been assigned to them under the Constitution and by the State.
I do not think the Chief Justice could be regarded as having made a mistake. His position, I take it, was that he was asked whether he would be willing to act if the Bill went through the Oireachtas. Anything that was in it was a matter for the Oireachtas, and, if the Oireachtas made mistakes, he should feel about them only as he would feel if the Oireachtas failed to express itself properly in regard to some matter of law. This Bill is our business and the only point was that, as a matter of courtesy and propriety, if you introduce a person, either by way of his office or personally, into a Bill, you naturally tell him about it. Putting myself in the Chief Justice's position, if the matter were put to me, I would say: "I am quite willing to do any public service I am asked by the Oireachtas to do" and go no further into it than that. If there is any blame attaching to anybody arising out of this, I am responsible for it, in the first instance, in making the recommendation to the Government; the Government is responsible for adopting it; and, in so far as it is put through the Oireachtas, any blame must attach to the majority who put it through. In my opinion, there is no blame of any kind which can attach to the Chief Justice, and it is only fair that I should say that.
I understand the points of view taken by the various speakers, and I should be inclined to say that, in the main, I agree that perhaps a case could be made that it is not desirable that this should be done. It never occurred to me, even when speaking about the chairmanship of the Red Cross, that there could be anything improper in a judge being chairman, and I never heard that view expressed until now. At the same time, I admit that there is a certain amount of force which can be attached to it. In other words, if in carrying out the functions as chairman of the Red Cross, he were open to criticism, that might in some way reflect on him afterwards in his capacity as judge.
That is exactly the point.
I am quite willing to admit the force of that and probably this will now be a sort of signal in the future with regard to the use of judges in any particular capacity. I would have been rather inclined to use them, as they are known to be independent of political connections, and could be relied on to act independently in regard to any particular work as chairman.
May I give the House a concrete example? I do not think that the principle the Taoiseach lays down, if it is a principle, is correct— that a judge should do whatever the Oireachtas asks him to do. I do not think he should.
Not necessarily; but if the person feels he wants to facilitate the Legislature, I do not see why he should not, like any good citizen.
Facilitating the Legislature means facilitating, in the case of an opposed Bill, the people in the majority. As an example, I was not the Chief Justice but I was the Ceann Comhairle of Dáil Éireann, and I was chairman of the Civil Service Commission. The Taoiseach, of course, is very keen now on the recognition of institutions. He got into power by recognising no institutions and showing respect for none of them—but that is another question.
That question is an open one.
The Taoiseach only recognises institutions when he controls them and arranges them—but let that pass.
Mr. O'Donovan
I wonder if we should let that pass. I think it is a wrong statement for the Senator to make. Personally, I do not like to let it pass.
It may be controversial, but we are here for the purpose of controversy. I was Ceann Comhairle of Dáil Éireann and chairman of the Civil Service Commission. A Bill was passed for the purpose of applying, roughly speaking, the principles of the Civil Service Commission to offices under local authorities, setting up what is known as the Local Appointments Commission. I was asked to be chairman of that, and I refused. It is an exact analogy with the Chief Justice being asked to do something. I refused on grounds which I think a judge could easily use also. I said: "There are people who object very strongly to this Act, and they may object to the administration of it, and they may object to the chairman; and as Chairman of the Dáil, I am not able to answer criticism, and I am not going to be in a position where I can be criticised and cannot answer." That is the exact position in which a judge is put when he does something which is not a judicial function—he is open to criticism. I think judges should be sufficiently discerning—and I think in future they will be—to read what is asked of them and if they find it controversial, refuse to do it. As someone remarked when the Taoiseach was speaking, judges ought not have political affiliations and should not be partial in any shape or form, but the suspicion exists in some cases, and you add to the suspicion by doing anything of this kind. The principle is a wrong one, that a judge simply assists the Oireachtas by consenting to perform a particular function which is not a judicial function, and I thought it would be interesting to give an example from my personal experience.
Níl ach beagán eolais ag teastáil uaim. Ó abairt nó dhó adúirt an Taoiseach, tuigtear nach é an Rialtas féin a cheap nó a thairg an Bille seo i gcoitinne. Ba mhaith liom go mbeadh eolas beagáinín níos deimhnithe ná mar atá againn, ar an dóigh a tháinig an Bille seo os cóir an Rialtais. An amhlaidh a tháinig saghas dréachta, agus é déanta cheana féin, agus gur ghlacadar léis? Is é an t-eolas atá uaim ná an fíor é sin leis, maidir le críocha an airgid agus na cuspóirí atá ann le caitheamh an airgid sin? Agus má tháinig sé ina dhréacht mar sin, ar dhein an Rialtas aon iarracht chun eolas d'fháil ar aigne dhaoine sar ar glacadh leis an dréacht?
Tá cuid mhaith daoine agus níl siad, fé mar adúirt mé an lá cheana, sásta ar fad le críocha an airgid, ar dhá chúis—ceann acu ná fuil go leor airgid ann chun na gcríoch san; agus in a theannta san, tá tuiscint ann, do réir an ghné inar tháinig an Bille seo isteach san Oireachtas, gur ar rud eile ba cheart an beagán airgid a chaitheamh, chun cuspóirí eile a chur chun cinn. Ar deineadh aon fhiosrúchán, nó an rabhthas i gcomhairle le h-éinne i dtaobh caitheamh an airgid agus i dtaobh na gcuspóirí ar a gcaithfí é; nó ar glacadh leis mar bhí sé, ó dhuine lasmuigh den Oireachtas ar fad?
Nach le hAlt a 13 a bhaineann sé sin—an tslí ina bhfuil an t-airgead le caitheamh?
Baineann sé le hAlt a 13.
Níl aon bhaint aige leis seo.
Más maith leis an Seanad, tabharfaidh mé freagra ar an bpointe sin anois. Fuair mé an dréacht agus chuir mé os cóir an Rialtais é agus rinneamar ár ndícheall dul tríd agus ár n-aigne a dhéanamh suas, agus ghlacamar leis. Ghlacamar leis an bprionsabal a bhí ann agus chuireamar an Bille, mar is gnáth, chuig an Árd-Aighne. Bhí na cuspóirí díreach mar sin.
Agus is amhlaidh a ghlac an Rialtas leis?
Tar éis a lán mach-naimh a dhéanamh air agus a lán díospóireachta ina thaobh.
Sin é an rud ar mhaith liom a bheith soiléir ina thaobh.
Measaim go ndúirt mé cheana féin in áit eile céard a thuit amach.
I would like, for the purpose of clarification, to refer to sub-section (5) of this section. It reads:—
"(5) If a committee, consisting of three persons nominated by the Chief Justice, is requested by the Attorney-General to inquire into, and report upon, the question whether it is desirable that a particular ordinary member of the board should cease to hold office—
(a) the committee shall comply with the request,"
Who begins this? Is it the Attorney-General who requests the Chief Justice to appoint any three persons or is it the Chief Justice who appoints the committee and they are there all the time, and then the Attorney-General requests that they will do such-and-such a thing? The sub-section does not seem clear to me, and if it is clear to other members, I would like to know if the terminology is correct.
The second point is that, if a committee of three persons, without any definition as to who they are, is to be compelled to do a certain job— that is what the clause really means when it says:—
"the committee shall comply with the request"——
any three individual citizens may be asked to do this and then, because of the fact that they are asked, they are compelled to do it. It seems to me that the wording is not quite clear, and I would like to know if it could be made more clear to us, not to mind any lawyer—as I find that the lawyers are the best people to dispute anything.
Leave us out of it, for one day.
Perhaps it could be made more imperative, but I think it will work as it is. I take it that the purpose of this provision is that if there were some member of the board who was unable to act—for instance, if there was a case of mental incapacity—you would want to have the position in which if it was clear that someone was unable to function, he could be removed. The idea behind this is that, in such a case, if there was a need of that kind, a committee of three either could be appointed ad hoc or appointed earlier: that some committee of three would be in a position to inquire into the matter and give a judgment as to whether the person was or was not fit to function. One of the difficulties is that when you appoint people for a period, for a definite period or indefinitely, cases may arise in which somebody is unable to function. Obviously you want some means of settling a position of that sort. Curiously enough, I raised the question at an early stage as to whether this was an ad hoc committee, and as to what would happen if the people mentioned did not act. I think that we will have to leave it as it is. I do not think that any difficulty will ever arise in practice in getting three people in the community to act.
I think the sub-section could be easily redrafted to make it more clear. If you were to say that "if a question arises whether it is desirable that a particular member of the board should cease to hold office, the Attorney-General shall request the Chief Justice to appoint a committee consisting of three persons and the Chief Justice shall do so". I am not giving the exact drafting. You could then set out that "thereupon the committee shall inquire into the question" and say that the committee by a majority report" and so on. I think we all know what the sub-section means, but it is not a very elegant bit of drafting. I think the sub-section could be easily redrafted.
Apart from the elegance, I think it will work. I am afraid we will have to leave the elegance to the draftsman.
It is possible that it could be redrafted without any difficulty. It is not very clear as it is. I think it would be fair to put in "if in the opinion of the Government a question arises as to whether it is desirable" and so on. What has got to be done after that has then to be considered. You could say, "the Attorney-General shall request the Chief Justice to appoint a committee consisting of three persons to inquire into and report" on the question. You could then set out that "the committee shall thereupon comply with the request; if the committee, by a majority, reports that it is desirable that the said ordinary member shall cease to hold office", so-and-so shall be done. I am just suggesting a draft on those lines as the points have occurred to me while speaking. If the sub-section were redrafted on these lines, I think it would be an improvement.
It strikes me that the sub-section is unnecessary. I think that Senator O'Donovan is right that it should be made more clear. The Government appoints the ordinary members of the board. If it does that why should there be any need for the elaborate machinery set out in sub-section (5)? If the other members of the committee report that some particular person should be removed, the Government will have to initiate proceedings for getting him removed. The Government, having taken the initial step, then the unfortunate Chief Justice again and three members, whose qualifications are not in any way defined, are to sit solemnly on the question, and by a majority report that A.B. is not a proper person to hold office. That seems to me to be very elaborate machinery for doing a simple thing. I think the average attitude of the average Government is that having appointed people it will suffer them as long as it can. I think that, if the Government came to the conclusion that a person ought to be removed, the simplest thing would be to give it power to remove him. If the Government does that, it is open to question in the Dáil. Perhaps it is intended —I do not want to be accused again of having the bad mind—to prevent a. question being raised in the Dáil. The Attorney-General is not a judicial officer. He is an officer of the Government and if he has to take the initial step that is an administrative act which can be raised in the Dáil.
I would love to be a lawyer.
Would it not be grand?
Sub-section (5) says that: "if a committee". Then there is a comma and after that it goes on "consisting of three persons nominated by the Chief Justice, is requested by the Attorney-General" and so on. That appears to me to mean that the Attorney-General would request the committee. I suppose the other interpretation could be put on it too. From that we proceed to say that these three persons shall comply with the request. It is paragraph (a) of the sub-section that perplexes me. Three persons are nominated by the Chief Justice. I think there is no necessity for the clause which says that the committee shall comply with the request. It seems to me to mean that the three are compelled to act although they have already agreed to act. I think that the whole clause requires alteration so that the meaning would be definite to any lay mind or legal mind.
I think that, when all is said and done, it comes down to a question of elegance. I really do not think there is any need to change it. I think it will work. What is to be done is clear, that if you get three people who are prepared to act this gives them power to act, and they comply with the request to go about the business they are appointed to do. That is all it means. I am not talking about the elegance of it. Perhaps, if I were drafting it, I might do it differently. I am quite satisfied that it is done sufficiently well, and I really do not see any reason why we should change it.
This section deals with the appointment of officers of the board. There is nothing in the Bill as to where the board meets or where the officers of the board meet. Possibly that is due to an oversight. I draw the attention of the Taoiseach to it.
I suppose that it is to be inferred that they will have some place to sit.
Presumably they will have some place to sit. I do not think they should spend the little money they have on elaborate suites of offices. I think it is quite right that no provision is made for that in the Bill.
They may sit in different parts of the country.
Yes.
There is a point I want to raise on Section 10. These costs have been incurred partly in assembling documents of several kinds dealing with Sinn Féin. It seems to me that we should take this opportunity of depositing as many of the original documents of the printed matter mentioned by the Taoiseach. I do not know if we need anything in the Bill to that effect but I do think that the Taoiseach should take some steps— I do not like to say compel, because compulsion would not be necessary— to ensure that all the parties to the action including the solicitor who went out of the action, should deposit these documents in the National Library for the purposes of records for historical students. I do not think that the Oireachtas Library is a suitable place. In 1922 there was a certain library in the Castle and I was asked to look after it for a certain time. We took it to the Oireachtas Library but eventually we handed over the bulk of it to the National Library. There were a number of files of country newspapers in it. I know that the National Library through a very definite effort by the very competent librarian has made a great bid to get historical documents together and I think that no matter what our views are, no matter what side we may take in this particular action or whatever view we may take about this Bill, we will agree as to the desirability of having all the documents, particularly the early documents, which are of great importance, together in some place like the National Library where they would be available for bona fide students.
I think it is something we should accomplish since we are actually paying out the Sinn Féin funds to those people who have them. A good result of this Bill would be that all possible documents would be deposited in the National Library. It may give an opportunity of appealing to people who have other documents in addition to those deposited there already, to come forward and deposit them now. It is a matter of great importance to us because we cannot have confidence in the future unless we have belief in our own past. Everybody, no matter what his political views are, will agree that the Sinn Féin movement and its documents will be an important part of Irish history and we should do as much as we can to make these documents available. The National Library would seem to be the most suitable place for them and bona fide students coming here as they sometimes do, to the universities in Dublin, Cork or Galway, can be sent there to study them.
It has been represented to me that certain small costs have been incurred in this case after the 11th day of March, 1947, and it seems that these costs should be taxed up to the date of application to the court to have the funds paid out. If the principle is allowed at all I think it should be allowed in full. I associate myself with Senator Sweetman's view that the parties are going to do very well out of this Bill. Certain of them are going to get a good deal more out of it than if the action had gone on. Some of them would not have been entitled to anything. I think, however, that the costs should be allowed up to the date of the motion to the court to have the moneys paid out.
With regard to whether the parties to the action will get more than they are entitled to out of this, I do not know. The matter was raised a few times here by Senator Sweetman. I tried to verify my lay opinion by getting professional advice on it since, and I found that my lay opinion was not far from the mark— that is, in a case where a person is deemed by the judge to be in it bona fide—when there is sufficient indication that there was a case to be made, and where the person is deemed to have been defending what may be regarded as a general interest or a public interest or a trust interest—in such a case the court would probably allow him his costs. Obviously we cannot judge this. We consider the best thing—the proper thing—to do is to say that the costs, so far as they have been properly incurred up to the present, will be paid.
In regard to the documents, I have exactly the same view as Senator Hayes has. I do hope that people who have old Sinn Féin documents will make them available for historical purposes. In this case the documents deal with the period after 1923 rather than with the period before it. These are the documents that are printed here in this volume I have in my hand, and it was this volume that gave me a shock when I saw it and realised what expenditure must have been incurred in printing them. I reconciled myself to it by saying that they are printed now, and that from the point of view of the archivist, something of value had been produced.
Who got those printed?
They were discovered by plaintiffs and briefed to counsel on behalf of the defendant, Charles Stewart Wyse Power. I have indicated that he felt that in getting these documents made available in a form like this they would be available for counsel, no matter which side he represented. Copies of this volume are available and they will certainly be put into the Library. The Attorney-General has made certain selections, I am sure, for his counsel, and these can also be made available. The original documents from which these are taken are now in the hands of a solicitor who has a lien on them, and I do not think we would be justified in taking these documents away from whoever gave them to him.
Is he going to be paid?
I expect so.
If he is going to be paid, he will lose his lien.
That is so, but the documents will go back to those who gave them to him. I have carefully avoided that aspect of the matter. What we are dealing with are funds of which the existing Sinn Féin organisation never had physical control at all. As regards the documents, these people had some of them, and they gathered some from others. In any event, I think that it would be wrong to introduce into this Bill any provision which would have the effect of trying to compel the solicitor who has these papers to deliver them up to a public authority rather than the people who gave them to him. The documents of which I have copies here deal mainly with the question of continuity. They do not deal with the earlier period. I believe that many of the documents dealing with that period are in private possession. I add to the appeal by Senator Hayes my appeal to those who have documents relating to that period to make them available in the National Library, where they will be preserved and where students interested in that period can obtain information from them. Senator Campbell mentioned that documents had been taken away by the Black and Tans——
Documents up to about 1917.
Some of these have, probably, disappeared. Some people were very careless about minute books and documents of that sort. When changing from one place to another during the 1919-21 period, individuals. had possession of books and documents. and they did not feel that those documents were really the property of an organisation—rather that they were their own property. I appeal to those who have documents, which really belonged to a great public organisation, to make them available in the National Library and preserve the history of the period. One thing we have gained out of these proceedings is that we have these printed documents, and they are in a form which makes them readily available. Many of them are of no great importance, but some of them might, from a historical point of view, be regarded as important.
The Taoiseach did not deal with my point, that the costs should be taxed up to the date when a motion is made to pay the funds out of court. Certain reasonable costs will have been incurred since 11th March, 1947. Under sub-section 3 (b) "the costs to be paid in pursuance of paragraph (a) of this sub-section shall not include any costs incurred after the 11th day of March, 1947, other than costs of taxation". The Bill was ordered to be printed on the 1st May, 1947. Even since then, inconsiderable costs, but certain costs, would have been reasonably incurred. I think that all costs which the taxing master considers to have been reasonably and properly incurred up to the time when motion is made to pay the funds out, should be reimbursed to the parties concerned.
I have not heard that suggestion from anybody else. This was fair notice to everybody that any costs incurred after this date would have to be met by themselves.
Why was this date selected?
It was the date of the introduction of the Bill.
The Bill was ordered to be printed on the 1st May, 1947. That is the date of the introduction.
This date is the date on which the Bill was introduced in Dáil Éireann. When a Bill is introduced there, permission is given for printing and circulation. I think you will find that that date is all right.
The March date?
Yes.
It was represented to me unofficially that costs would have been properly incurred from that date up to the date when the funds are paid out.
That was not represented to me, and due notice was given to all parties in this way that any further costs incurred after that date would be at their own expense.
The 1st May is the date on which the Bill, as amended on Report, was ordered to be printed.
Since the last day, I, like the Taoiseach, made it my business to consult other persons more skilled than myself with regard to the costs of the trustee, Mr. Wyse Power. Not merely did I get confirmation of the opinion I expressed here that he had incurred costs far and away above what was reasonable but I found amongst those who would know something about these things—barristers and solicitors—that there was prior to that time no appreciation at all that it was his costs which had amounted to so large an amount. I found complete universality of opinion that it was his duty, as trustee, when the funds had been lodged in court, and when Mrs. Buckley and her associates instituted this action, to say that he would abide by whatever decision the court gave.
I do not want to turn this into a judicial argument but I can assure the Taoiseach that some colleagues of mine and I went back over reported cases and found such cases to bear out our view. We found sufficient to satisfy ourselves that what had happened in this case was that the trustee did not content himself with doing what was his bare legal duty but decided he would like to have a finger in the pie. Having so decided, he incurred costs. I do not want to suggest that the costs he incurred were not proper for the work done. What I say emphatically is that the work done was not work which it was proper for the trustee to do and was not work which should be paid for out of this fund. It is unfortunate that I did not see the wording of paragraph 1 of sub-section (3) earlier. It provides for payment to him of the costs as between solicitor and client, properly incurred by him as trustee. If I had seen that provision, my view and the Taoiseach's view could have been determined by the proper officers. It would be too much of a judicial argument to use here but there was plenty of precedent to establish that what he did was entirely of his own volition and without necessity. That is the main cause of the Taoiseach's estimate of the diminution of this fund.
I believe that if certain expenses had not been incurred by the defendant referred to, greater expenses would have had to be incurred elsewhere in preparing the case.
That is fair.
I take it also that the general attitude of the representative of the last surviving treasurer was to do what the treasurer herself, if she were alive, might be expected to do.
I do not want to confuse the issue. I do not want to make any case based on the difference that he is not the original trustee but a person who represents the original trustee.
I do not know whether or not it is right that I should say what occurs to me now. In the pending proceedings there were really three sections. At the time of the Treaty, or after the Treaty—I do not agree with Senator Hayes that the break occurred officially and absolutely at the time of the Treaty; I will admit that the foundation was there, but the break did not occur then because the body met as an Árd-Fheis in May, 1922—there was a break, and you got two big divisions. The late treasurers went one way and represented one division, and that was the point of view which might be regarded as having been expressed by the representative of one of the deceased treasurers; I looked on that as one section. There was afterwards a further division, when the remaining half was divided again. I regarded myself—as in a sense having a certain moral responsibility, having been appointed trustee—as representing one section. In so far as the public interest was concerned, the Attorney-General would represent that section, as the Government would naturally put its view before the Attorney-General. So that if the case did go for trial in the courts, these three sections would be represented: Judge Power could be regarded as pleading any views which might be expressed by those who took the Treaty side, and the Attorney-General, in so far as he would represent any Government view or any public view we might express, would, so to speak, represent our section, and the plaintiffs would also be represented; so that there was an opportunity for the three points of view being presented to the court. I am quite willing to admit that I became really frightened when I saw the rate at which expenses were being piled up. I can tell the House that it was this book which really frightened me, and, when I got it, I said that if we were dealing with State money, I doubt if we would feel justified.
We know how to frighten the Taoiseach in future.
I consoled myself with the point of view that there was one thing which would come out of it, that is, that the documents were in a form which would be available for the Library when the lawyers had finished with them. I also saw that there might be a saving of money in it. Lawyers have to be paid for their time and much less time would be spent in going through a book like this than in going through a mass of typewritten documents. If one looks at the section fairly, I think it will be found to be just.
I am inclined to agree that nothing else in the circumstances could be done. The surviving trustee was justified in thinking that the point of view of the person he represented would be to make every effort to prove that the money was not to be given to those who at present call themselves Sinn Féin. Coming to the point with regard to the documents, I agree entirely that you cannot compel a solicitor to hand back to public custody documents which were given to him by a private client, that he will have to hand them back to his client; but when the Taoiseach says that these documents will be available for the Library, does he mean the National Library or the Library here? Are there sufficient copies to deposit one in the National Library and one in the Library here?
There might be. The National Library gets the first.
Has any estimate been made as to the amount of the need in this case? The section could not be more widely drafted and I take it that it has been drafted widely for a purpose. It includes all members of the forces and it includes people "who have given service in the national cause"—an extremely vague and all-embracing phrase. It also includes the present dependents of these people, and, in so far as I am able to read it, future dependents, for all time.
Oh, no.
It seems to me to be drafted purposely in order to embrace the greatest possible number. The work which will have to be done by a committee is very difficult indeed, and, if there is a substantial need, the £16,000 is only a drop in the ocean. It will go only a very short distance. There are bound to be expenses. It is not like the old days when the National Aid or Volunteer Dependents' Fund worked on voluntary assistance and with a very small amount of paid aid. This kind of thing is very costly. I am familiar with one particular fund which costs very little because it works through post office officials. It is worked by post office workers, practically speaking. The postmaster in a given area carries out the inquiries and sends up his information in official time as is recognised by the post office, and in that way inquiries and payment for inquiries are cut out.
This, however, will be expensive and it is analogous, as a matter of fact, to the case of wounds pensions. It is comparatively easy to establish whether a person is entitled to a wounds pension, but the Taoiseach knows that, when you go beyond wounds pensions and proceed to compensate people for illness contracted on service, you go into a very wide field, or, rather, into a morass, and while there is justice in it, it is very difficult to establish whether a soldier's illness has arisen out of service.
In this case you are dealing not with wounds or illness but with needy circumstances. I know myself a few cases in respect of which I regretted very much that there was no place I could turn to in order to remedy a particular difficulty. We all know some of these cases. Whether there are very many of them, I do not know, nor do I know how many there would be in each county. There is already a provision that a man with service, a single man, can get his income made up to £78, and to £90 if he is married, and £90 plus certain allowances for dependent children where he has dependent children. This seems to me to be the beginning of a process by which this money will be spent and an Estimate will be introduced in the Dáil to continue it.
The £16,000 might have effected some good, if it were spent in one sum for a particular purpose. I have no means of determining how widespread the need is and I do not know whether the Taoiseach has any means, either, but I understand there were a great many applicants. I also know this— and we might as well be frank about it—that the moment you say money is available, all kinds of people make application. I had the good fortune, after 1916, not to be interned, and anybody in Dublin then who knew the circumstances and who, having been in the Rising, was in a position to express his personal view, came upon very great difficulties. Once people begin to make application for money, you have to make inquiries and have to take up, I am afraid, a rather untrusting attitude. That is a position we are all familiar with, so that the job being given to this committee is a very unenviable and very indeterminate one and I do not know how they will do it. I do not know what particular type of cases it is intended to cover.
I know a few cases. Take the man with military service or 1916 service in a non-pensionable Civil Service post who goes out at a certain age and then reverts from £6 or £7 a week to a pension and a military service pension. I do not understand how this work will be done. I feel that this money might be devoted to another purpose, and if the thing mentioned in this Section 13 is agreed to and left to be dealt with out of public funds, but I do not know if that can be done now. If, in fact, the need is great, it will eventually be dealt with out of public funds, when the £16,000 will be gone.
What the Senator said is quite right with regard to the difficulty in a case like this. The State has difficulty, in making provision, to try to draw a line as to who should come under a Bill and who should not. We have had Pensions Bills and wounds pensions provisions and so on. Outside anything we have been able to touch, some cases have been brought to my notice personally. I do not know how extensive the need is, but I agree with the Senator that the trouble is that the moment the board is established and this fund is available, there will be a large number of people seeking something from it. As a matter of fact, some have come to my office already. If I were a member of the board I would sit tight to start with, and make up my mind that I could only relieve, with that small sum of money, what one might call the almost desperate cases. I would be extremely conservative about it, as you cannot come to the relief of all the cases that will be submitted to you; you have only to glance at some of them to see that they would not be the kind that should be dealt with in the first instance. I would wait until satisfied that I had found the very desperate cases, and I would move slowly.
The trouble is that somebody has to go through the applications. If you get a large number of applications, a priori you cannot know whether one is important or not, so someone has to do the first run through them. I agree that one of the unsatisfactory things about the whole Bill is the method in which the money is going to be spent, but there is hardly any other method one could suggest that would not be open to some of the objections. An Seabhac, for instance, is anxious that it should be used for some purposes connected with Irish; there again immediately the question arises that you have not nearly enough in these funds to go on with the big job to be done, and the State would have to come in in a much larger way. If this is regarded as a benevolent fund, to be used only in extreme cases, I believe it will do some good.
It will be better than having the money frittered away. I honestly do not know if I can make any better case for it than that it should be kept by this board to be availed of in cases of dire necessity. To do that, we have to depend upon the judgment of the board. That is the important thing. It is not a fund that will be sufficient to deal with every case of hardship. It is only of value if it is used to deal with cases of dire hardship where no other fund is available.
I suppose I should not raise difficulties for myself by talking about the subsequent section, which contains the word "gift". That was objected to in the Dáil on the ground that, if there was any question of State gifts to an organisation of this sort, seeing that this Bill has not got the general approval I would like, it would probably not be the best basis on which to provide any necessary supplementary funds. If it were necessary for the Dáil to go further and a large number required assistance, for which this fund proved insufficient, it would be a question of coming to the Dáil. In that case, seeing that this particular Bill has not received the general approval I would like, it would be better to do it independently. Nevertheless, there is a possibility here. After a period, when people have seen this board function, they may revise their views, and the apprehensions they had may prove unjustified, and we may change our views as regards the advisability of having a body of this sort. If it functions well and it is thought desireable to help it from the State point of view, or if private individuals desire to help it, it can be done. As a matter of fact, the word "gift" was put into Section 14 to enable anyone who got money to repay it. We did not want to have provision for loans, and this is one way in which a person who got some money from the board, and later found himself able to pay it back, could do so, and the board could receive it. It would have to be received more or less as a gift. That was why it was put in, as a simple arrangement; and also if there were members of the community who wished to help a fund of this sort, it would enable the board to take any moneys offered to it.
I agree absolutely that, if the need is very extensive, the sum is too small. It can only be of value if it is used conservatively to help desperate cases of dire necessity which definitely come under the general terms of reference. If done in that way, it will be helpful. It could not be regarded as a general fund to relieve distress of people in general who might have suffered in the national struggle. I do not think it is large enough to do that, and I doubt if even a public Bill could be brought in satisfactorily to deal with it. We must remember that in the national struggle we had the whole or a very large percentage of the population of this part of Ireland and of Ireland as a whole. In the case of a struggle like that, you can hardly make arrangements so that all those who suffered in any way will be compensated. All you can do is to relieve cases of outstanding distress. If that is done, we might get somewhere.
May I ask if for the purpose of administering Section 13, it would be necessary to have a staff, including investigators? How are we going to determine under the section the term "hardship"? It must be related to something. It must be investigated, and we have this question of a means test back again. There seems to be a good deal of investigation involved, and the cost of administration in the long run is going to be high. The Taoiseach might give some indication as to what he considers will be the costs involved in administration, including investigation, and whether this money is to be disposed of finally within a period of years. Is it to be disposed of on the basis of hardship within two, five, or ten years? That will be important.
Years ago, I had some experience in matters kindred to this. I do not see how this clause could be made different from what it is. The amount of money is relatively small. There are two things which the committee would have to decide and I am thankful I will not have to decide them. One is the definition of "needy circumstances" and the other of "service in the national cause". The committee will have to decide these. I hope that this will not be administered like a pension fund under a Government Department. I would rather see the committee make some mistakes than spend half the fund in careful investigation and examination of every case. It may be that the problem is so acute that they will be able to do nothing until they come to the State and say: "Are you going to help us?" It may equally be that there are a number of people for whom that sum of money could be used. I am glad that it is not confined to service in the Forces because, as the Taoiseach knows, and as any of us who lived through that period know, services of great value to the national cause—by that I mean the winning of the independence of the country—were given by all kinds of people who never would, or could, have served in the national services. I hope, if my words count for anything, that one thing the committee will do is to say at the outset that it will not listen to, or read letters from, T.D.s or Senators in regard to these cases. It is going to be bad if applicants think that they will have to go to T.D.s or Senators to have their applications properly made.
According to the definition, what qualifies a person for payment from the fund is "needy",— anybody "in needy circumstances". This person may have a pension and his "needy circumstances" may arise from his own fault. I think that as far as possible it should be applied to needy people not covered by either the military service or disability service pensions. It is so small that it should be conserved. A person may have a military service pension and be described as "needy" but it need not be stated why he is needy. It might be due to drink or some other cause like that. That makes it very wide. I think the whole idea behind the Bill should be to try to give to needy people whose need is not met by any funds already provided.
I think he must be in needy circumstances arising out of services. At least I hope that is what it is. It is not the case in paragraph (a) but it is the case in paragraph (b). I feel that Senator Douglas is quite right, and he has more experience than any of us in these matters because of the administration of the White Cross. If you are going to have this body acting under statute it is better to have rather loose terms of reference. The Taoiseach used the words "dire necessity". I do not agree. The words "needy circumstances" have different meanings for different people. Destitution is not exactly the proper test and the person who has already a military service pension should not be entirely excluded. I agree with Senator Douglas that Senators and T.D.s should not be listened to as such, but there may, of course, be members of the Oireachtas whose opinion has value and whose testimony in regard to service has value. The committee may ask them for that. If a man applies from a particular area the committee might easily apply to Deputy Seán MacEoin or to the Minister for Lands, Deputy Moylan, for information.
With regard to the staff of the committee, I wonder whether they cannot get one or two very intelligent people of experience to work for them and then have voluntary labour in the country. I do not think you will improve the situation by restricting Section 13. Those you want to deal with are people who are not dealt with by existing Acts of the Oireachtas. I mentioned, quite casually, yesterday evening, a man who, I have since learned, fired the first shot in the Rising. I understood that he had both a military service pension and a pension from the Dublin Corporation, but I discovered this was not so. He was a temporary officer. That being the case, his circumstances must be worse than they appeared to me. You will not improve it by restricting the provisions of the section.
I agree with what Senator Hayes says. I have no objection at all to an applicant saying that Senator So-and-so, or Deputy So-and-so, has information. What I meant was that members of the Oireachtas should say, when approached: "You make your application and if I have any information I will give it to the committee if they ask for it." One thing I would like to say in view of a remark made by the Taoiseach is: I hope and believe that this committee will be successful and I believe everybody here will wish it success and will want to help it. The fact that this Bill is controversial does not mean that we do not want to see the committee function successfully and in an impartial and fair way. Therefore the Taoiseach should not assume that because this Bill is controversial we wish otherwise. It may very well be that in 12 months' time we may be willing to give assistance to it.
I will be very glad if that is the case.
The Taoiseach has indicated that applications are already coming in. That is an indication to an extent that we are going to be smothered with applications in a similar way as the Military Service Pension Board was smothered. I think there were something like between 60,000 and 70,000 applications for pensions. One can readily see 10,000 or 15,000 persons applying for grants under this Bill.
Assuming you have 15,000 applications there must be somebody to sift them, read them and assess them, keep records and make inquiries if it is to be got through in a reasonable time, say, 12 months or two years. That would take a big staff. It would require a big staff to handle 1,000 applications per week; inquiries will have to be made and letters written; you will have to have typists; you may have some investigations to make in Kerry, or Donegal, or even in England, to ascertain why particular persons should make a claim and to investigate their bona fides. What is running through my mind is that there is going to be great delay incurred if the funds are to be administered in, shall I say, the traditional Civil Service manner. Secondly, there is the question of cost. The more you attempt to hasten decisions, the greater the staff required and the greater the cost.
The objections of the Senator are quite well based. A certain amount of investigation will be necessary but you can visualise yourself as a member of the board, with this sum of money at your disposal, how you would deal with it. If you were a member of the board, you would make up your mind that you were not going to see this money spent on administrative costs. Since the sum is small it will not be able to deal with every case. Therefore, while the word I used perhaps would not be acceptable generally, I myself would be inclined to keep before my mind cases of dire necessity to start with. I would say to myself that I would deal in the first instance with cases of dire necessity and I would be in no great hurry either; I would take my time. I know that the sum is small and therefore there would be no question of rushing in and trying to save all possible distress: you cannot do it that way.
I would wait until I had a prima facie case before I had any investigation made in order to see that this was the type which really deserved to be dealt with in the early stages. I would proceed by a process of gradual sifting of the cases. I think the board should be extremely conservative—or the money will be exhausted—and deal with cases that everyone would agree should be dealt with. The amount of the administrative expenses will not be so great if you proceed in that way. I know that there will be a large number of applications, but I would be inclined to find out, first, if there were any outstanding applications among them, which obviously ought to be dealt with. It is a case of going slowly in dealing with them. If there could be on this board people with previous experience of the administration of other funds, it would be a very great help. It may be possible to get some such people on the board. I agree that the danger to this fund, which is so small, is of wasting it in administrative expenses.
On this stage I should like to refer briefly to what was said by the Taoiseach on the Second Stage in connection with this Bill, and particularly to certain references to the courts as protectors of the people. According to the Official Debates, column 1685, the Taoiseach stated:—
"It is all nonsense in the long run to suggest—it was suggested very strongly in the other House and here —that the protection of the rights of the citizens depends on the courts. The protection of the rights of the citizens, in the last resort, depends on the Legislature. There is no doubt whatever about it."
I should like very respectfully to differ from the Taoiseach on what seems to be a matter of some importance. In general I agree with what he said about the courts. It would be absurd if anything I said would give any other impression than that the fundamental protection of the people depends upon the courts. But I cannot help thinking that the Taoiseach has gone to the other extreme when he stated that "the protection of the rights of the citizens, in the last resort, depends on the Legislature." As this matter is of some importance I am raising it now. It arose in connection with this Bill. Personally, I belong to a tiny religious minority of some few thousand people.
I meet those in the Six Counties and hereafter, if any of them had doubts— as some of those in the Six Counties have—about the protection of their rights, if I told them that that depended upon the Dáil and the Seanad, they might laugh and say: "We thought so." I would tell them that I believe the Irish people would not allow interference with the fundamental rights of a minority, would not stand for it, and that if it did happen in the case of Parliament, then that Government would be defeated. The ultimate protection is the tolerance and the good sense of the people. If that was not there, there might be no protection or temporary protection. The Constitution has its limitations. It could be changed by the people. It is valuable in the sense that it sets out in writing certain principles. But those principles are not enough if you do not have the backing of the people and a belief in tolerance, that there are certain rights, whatever powers Parliament may have, in which legally Parliament has no right to interfere.
In this country, in which there is very considerable belief in the importance of the individual, and the rights of the individual, where there is universal belief in the family as the fundamental unit of society, you cannot, if you accept such principles, but recognise the rights of minorities. I put this view forward because the importance of the courts can be minimised. The value of the courts, first of all, is in the interpretation of the law but, as the Taoiseach very properly pointed out, they cannot do anything but interpret the law as they understand it, except where they believe that law is contrary to the Constitution. In that case there may be protection in the sense that the courts prevent Parliament from acting hastily or taking away what seem to be important rights of the people.
I do not believe that the present Government or that any Government in the lifetime of anybody would knowingly or deliberately set out to interfere with religious rights or with political rights, but they did so in one Act that was adverted to, and it was one of considerable importance. Already we have the case of the School Attendance Act in which the desire of the Government to achieve what was attempted was difficult and they took powers which many in this House thought interfered with family rights and which they fought all through Parliament. That was not sufficient. Parliament was not the protector there, but eventually the courts decided the matter under the Constitution. I do not want to raise that matter now, but to say generally, if my words count for anything, that I do not depend on Parliament in the last resort, as stated by the Taoiseach, but as a last resort on the people to maintain individual rights.
I hope that this Bill is not going to be taken as a precedent, because I disapprove very strongly of the practice that when a matter has come before the courts it should not be left to be decided by the courts but resolved by legislation. Even before this Bill was introduced by the Taoiseach I thought that there were exceptional circumstances in connection with these funds which would justify the matter being dealt with by legislation. There was a political element as well as a juridical element. As a matter of fact, long before the Taoiseach introduced the Bill I had discussed the question, whether it might not be dealt with by legislation, but I should like, if any future Bill of a similar nature is introduced, that the Taoiseach should not quote this Bill as justifying interference by the Legislature with the courts.
I hold very strongly that although the Legislature can always overrule the courts, and has the power to do so, it should not do it, except when a very particular and specialised case is made, as in the long run, the real safety for the individual lies in the courts. The courts deal with individual cases. The attitude of the courts is: "I find no fault with these just men", but the Legislature is inclined to sacrifice the individual and say "it is expedient that one man should die for the multitude". That is rather the difference. The court looks at each individual case. It tries to do justice, with a passion for justice. The Legislature is sometimes swayed by popular prejudice or popular passion. It feels that it wants to get on with the particular job which it has near its heart, and that it is expedient that one man should die for the people.
I want to say before the Bill leaves the House that the more the discussion progressed the more convinced I became that this proceeding was entirely unwise. I cannot imagine anybody in this House feeling either happy or satisfied because this Bill is being passed into law. It is true that we could not prevent its being passed into law. Whether we gave it a Second Reading or not would make very little difference. If we had not given it a Second Reading, its enactment would have been delayed. The fact that we have given it a Second Reading, and have expedited the other stages, merely means that the Bill becomes law a few months earlier than it otherwise would. We can bear in mind that, if there is something seriously wrong in the principle involved in the adoption of this Bill, the responsibility need not be laid at our door. I do feel, however, that there is at least one section of the community highly gratified by what has happened. I imagine that the Sinn Féin organisation will feel very gratified.
Why?
Six months ago the Taoiseach probably felt that he would achieve a good deal when the last intransigent element in the community went into the courts and was prepared to have its case decided by the courts. The Taoiseach, I think, unwisely prevented that issue being decided by the courts. He has given the Sinn Féin organisation the excuse to say that they cannot trust the courts, because if there is a danger that the courts will decide something in their favour the Oireachtas steps in and takes the case out of the courts. I think that is unfortunate, but it is true.
Mrs. Buckley and her friends will get all their costs out of this fund. Every party that appeared in the courts will get their costs, so that the original £8,000 will be paid out under this Bill in costs of litigation, and we are left with the residue, which is merely the earned interest—not the money subscribed by the Irish people—and that is going to be distributed. We learned, as we went along this afternoon, that a fair share of this money will go in administration expenses, so that the unfortunate people held out to us as the meritorious objects of this benevolence are going to get very little, even though they are in very needy circumstances. They will probably be dead before the awards are made.
I think all of us must feel that there is nothing about this Bill on which we need pride ourselves. It is going to be a bad precedent for the future. It has done injury inasmuch as it has given the Sinn Féin organisation justification for saying that they cannot hope to get justice in our courts. This is the first occasion upon which they were prepared to recognise the courts, to go into and litigate their claims in the courts. They have been denied that opportunity, and I think the very fact that the case is being taken from the courts, because the Taoiseach was afraid that the courts might not decide wisely, is a concession to the Sinn Féin organisation that they have proved the continuity of their existence.
I put down an amendment on the Second Stage of the Bill, but I do not wish to continue this debate. I listened to Senator Duffy with considerable interest. One of his points was an excellent point, namely, that we must all rejoice that a particular section of the community that refuses to recognise the State should recognise it by going into court. I think that the people who will benefit under this Bill will not be very much worried whether they are benefiting from the original £8,000 or from the accrued interest. I think that is a thing that will not keep them awake at night.
As far as I am concerned, I should like to make it clear that my opposition to the Bill was based entirely on principle and was independent entirely of my political views. I was not actuated by opposition to the Government in the normal way. I am in complete agreement with other people with regard to the insufficiency, as far as I can judge it, of the claims of Mrs. Buckley and her fellow-plaintiffs. I did not think that my opinion as a politician and as a partisan in certain events should be allowed to intervene between any body of citizens who claimed to go to court and have their case decided upon the law as it stood when they opened their case. I agree entirely that we have made an extremely bad precedent. I do not agree that there were precedents made before. It was also mentioned on the Committee Stage to-day that a bad precedent was made by bringing in a judge to carry out a function which is in fact not a judicial function. I think we have made progress here, and I think that on the discussion on this Bill we have made it abundantly clear that this kind of thing will certainly not happen again. The intervention of Parliament between a litigant and the court when a case is on is undoubtedly a bad thing. In this particular instance, I am not accusing the Taoiseach or anybody else of bad motives. They considered that there were sufficient grounds for doing this thing, but for various reasons, I think it was not worth doing, and it was not worth doing to save £16,000 for purposes for which the £16,000, as we dispose covered this afternoon, will be entirely insufficient.
The case has been made that the Bill may be unconstitutional. I am not saying whether the Bill is unconstitutional or not, but it is not because of its possible conflict with the Constitution that I oppose it. Different religions and people with different outlooks opposed certain sections of the School Attendance Bill because they thought it violated certain fundamental rights. We are opposing this particular Bill for the same reason. The answer that we have power to do certain things and that, therefore, we may do them is, I think, a very dangerous answer. Whether we have power or not to do this thing, if it is not right we ought not to do it. Every parliamentarian interested in the survival of parliamentary government will have to recognise that the greatest danger to parliamentary government here—and the greatest danger that appeared elsewhere—is the full and unscrupulous use of its power by Parliament. We certainly, whether we have the power or not, ought to hesitate to do certain things which seem to some of us to be contrary to fundamental rights.
For my part I would have been prepared to let these people go and recognise the courts. They were taking the action at their own risk. They are now in the position in which they can say that when they wanted to have resort to the courts a parliamentary majority—a political majority—interposed between them and that position. They may in secret be comforted by having their costs paid instead of taking the risk that the decision of the court might be against them. Any opposition to the Bill, as far as we are concerned, is opposition based entirely on principle. It is not personal opposition or political opposition, or opposition, for example, to the person of the Chief Justice or to the person of anybody else, but an objection to interposing Parliament between a particular litigant and the right that that litigant ought normally to have of having his case decided on the law, as it stood, by the judges when he started his case.
You can always change it but this is an example that ought not to be followed. In this House, in particular, I think we have dealt with the matter in a way which has made the principle stand out and the opposition to that principle stand out. I think that we have improved the point of view generally regarding legislation of this kind and that we may congratulate ourselves upon that.
I should like, if I may, to congratulate ourselves on the way in which we have dealt with this matter. I do not agree with a number of the arguments which have been put forward but I do say that we have approached this matter from the point of view of reasoned argument, without introducing personalities and dealing with it in a way which is never helpful in getting at the truth. I think that the position has been overstated by those who oppose as to how far it is permissible or right for the Legislature to step in when an action is brought before the courts. Perhaps, by our opposition to that opposition, it has been suggested that we want to go to extremes on the other side. We have no intention of doing so. As Senator Kingsmill Moore pointed out, this is a wholly exceptional case. I do not want to go over the grounds again which make it an exceptional case. I may say, without making a political argument out of it, that my reaction to the whole thing was precisely that of the Leader of the Opposition when he made his first statement in the Dáil. He expressed exactly, and in better words than I should have used, my feeling that this was a question which was not for the courts to decide at all. Apart from that, there is the question how far it is right for the Legislature to act in this way.
I am afraid that the Legislature frequently intervenes when there are pending actions. There is no vested right in any individual in the existing state of the law. There are fundamental rights in which we all have a vested right but, so far as the ordinary law is concerned, I do not think that anybody at any particular moment has a vested right in that law as against the Legislature. Every time the Legislature goes into action by way of legislation it is changing existing rights generally.
In generalities but not in particularities.
I agree, but the legisation applies to individual cases and to individual sections of the community, so that, although it may not appear to be immediately directed towards them, it does change their existing rights. Do we, in fact, when passing legislation, ask ourselves what particular cases are pending in which rights are involved which may be interfered with by the legislation? We do not.
We ought to.
We cannot.
We do.
Only in cases where the legislation is specifically directed to individuals. So far as the general principle is concerned, I do not think you can say that the Legislature cannot come in if there is a sufficiently good reason for doing so and if the cause is just. It is a question of where justice lies. I must not be misrepresented when I said that ultimately people will have to get justice and protection of their rights in the Legislature rather than in the courts. It is clear that what I meant is that the Legislature does determine and change rights with regard to one section or other of the community and that the courts are compelled to take note of them. Therefore, the place where justice is, so to speak, meted out between different sections is in the Legislature when the law is being made. Senator Douglas said quite rightly: "You are not right, either; you must go further back." The Legislature is not the last word because the personnel of the Legislature and the majority there depend, ultimately, on the will of the people. If not satisfied with what the Legislature does, the people can, at a later stage, change it. What I want to have stress laid upon is that the people, when electing their representatives, should remember that they are choosing people who will mete out justice. They should keep that carefully in mind. Ultimately, the Constitution and the people are the final court. That is set out in Article 6 of our Constitution, as follows:—
"All powers of government, legislative, executive and judicial, derive under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good."
The people are, ultimately, the final court, and the Legislature, only in so far as it represents the people, can be regarded as more final than the courts. Each has its own particular functions.
At one stage of this case, I had an extract made from a judgment by the retired Chief Justice. He refers to a matter which we ought to keep in mind. The case is reported in the Irish Reports, 1940, page 481, and it relates to Article 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940. This is the extract:—
"The people, by the Constitution, have provided for the setting up of three great Departments of State— the Oireachtas, the Executive and the Judiciary—and it is essential for the harmonious working of the machinery of State that each Department should confine itself to its own constitutional functions. If the Oireachtas enacts a law within the scope of its legal and constitutional powers, it is for the courts to construe and apply the law. Any criticism by the courts of the manner in which the Oireachtas exercises the discretion and powers vested in it would be as much open to objection as would any suggestion, in either House of the Oireachtas, that a decision of a court, within the scope of its authority, was not in accordance with law."
In this case, we are making a law. It seems to me that we have the right to make that law. While the fact that a case is before the courts should, naturally, be borne in mind, it is not the ultimate thing of which account should be taken. It has to be noted, but the question is: Are we acting justly in any particular case when making a law? In this case, I have not the slightest doubt that we are acting justly and that we are doing what we should be expected to do by the community—prevent money which might be devoted to good uses from being spent on litigation.
It has been suggested that we have lost one good thing which could have been secured if this question had gone to the courts and had been left to their decision—that the courts would have been recognised. I think that, if the case had gone to the courts and if a decision favourable to the parties making the claim were not reached, they would not be so inclined to consider that the courts had given them fair play. I believe the courts would have given them fair play—I am perfectly certain of it—but I do not think the argument would not be used by them—which would be just as bad as, and, in fact, worse than, any other argument—that their claim was not admitted by the courts because the courts are institutions which we have set up here. I think that, in the long run, it is better that we here in the Legislature, as representing the people should take any blame, if any blame is coming to us, and I am prepared personally to stand over—and I think the Oireachtas as a body can stand over—our action here, and that, in all the circumstances, it is fair and just.
I want to say with regard to powers that I agree that it is very foolish of people to think that, simply because they have power to do something, they can do it. The right to do something which you have the power to do is another matter, and even the wisdom of doing things which we have the right to do is, in cases, a matter of opinion. It is not likely that we will all agree upon this, but I have not got the slightest complaint to make about the way in which the Bill has been received in the Seanad, or the criticisms made against it. I am perfectly certain that the criticisms offered were offered in good faith. There have been no personalities, and I am very happy that we are ending, so to speak, on the note on which we are ending. I think it is the right way in which to end.