Special Committee Defence Bill, 1951 díospóireacht -
Wednesday, 19 Mar 1952

SECTION 46.

Captain Cowan

I move amendment No. 48 :—

In sub-section (1), lines 26 and 27, to delete the words " for a period not exceeding three years " and substitute the words " and allowances for a period not exceeding one year ".

I cannot see any circumstances in which an officer could or should be put on half-pay, except with his own consent, for a period exceeding one year. If you are going to do that, he should go out altogether. The half-pay provision has not been much used, to my knowledge and I remember only a couple of cases in the whole 30 years.

Chairman

It is useful for an officer who is in some other branch of the State service.

Mr. Traynor

It may also be as a disciplinary measure, for failure to carrying out some duty.

Captain Cowan

I know a case where a man held high rank and received half-pay. If the Adjutant-General were to cease to hold that position tomorrow and there were no other appointment for him, he could be on half-pay for a period until a vacancy arose. Something similar to that did happen. The period should not exceed one year. If it is a punishment of a higher officer, it might mean a fine of about £600.

Mr. Collins

Could the Minister give any basis other than consent where an officer should have a more extended period than a year on half-pay ?

Mr. Traynor

I cannot visualise any readily, but we must provide for the future.

Mr. Collins

Then I would support the amendment.

Mr. Traynor

It is not punishment in the sense of a severe disciplinary measure. It is not as drastic as discharging a man altogether.

Captain Cowan

It is very hefty punishment.

Mr. Traynor

If the Committee think one year sufficient, or three years with the man's consent, very well. The only case where it is used fairly regularly is where the services are required somewhere else—the broadcasting service or some scientific body.

Captain Cowan

I withdraw the amendment on the Minister's undertaking to redraft the sub-section to provide that it will not exceed three years except with the officer's consent and otherwise not exceeding one year.

Amendment, by leave, withdrawn.

Captain Cowan

I move amendment No. 49 :—

To delete sub-section (2).

The Act provides disciplinary procedure and punishments for an officer. He may be dismissed, fined, warned or reprimanded ; but suspension from duty seems to be an additional punishment not provided in the scale of punishments at all. Where he is placed in arrest he is automatically suspended, but we can deal with that on the section dealing with arrest. To give the Minister power, except when he is in arrest, to suspend him from duty is giving him power to enforce a punishment. The Minister will make regulations and suspension from duty will be the order of some officer down the way, perhaps a colonel or even an officer of equal rank. I could not agree with any such provision. The suspension from duty should occur only when he is in custody on a charge.

Mr. Collins

Would that include open arrest ?

Captain Cowan

Once he is in arrest, whether open or closed, he is suspended from duty, unless directions to the contrary are given. It would affect the pay sections, as he would get no pay. That is important.

Mr. Traynor

He may be involved in serious loss of stores which may only come to light in circumstances which necessitate his immediate removal from his post. At that stage you may not be in a position to prefer a charge and it may be desirable to hold an investigation. It may be entirely undesirable, on removing the man from his position, to appoint him to some other position. You cannot do that and you cannot leave him completely unattached. I think it is necessary that the power should be there to suspend him until the investigation is complete. If the charge is not proved the man will be at no loss. He would not be paid while under suspension, but if proof could not be presented to prove him guilty his pay would not be withheld.

Mr. Collins

Would the Minister not think it wiser that he should be relieved of his appointment, subject to the investigation, as distinct from being suspended ? If there has been, say, serious loss of stores, surely relieving him of his appointment and placing him on the supernumerary strength of the unit until the charges were dealt with would be sufficient without actual suspension ? Undoubtedly an officer who is suspended is under a cloud of suspicion, and even if, subsequently, charges were not proved against him there would be difficulties involved with the Department of Finance about his pay.

Captain Cowan

I accept the Minister's argument regarding the necessity to remove him and I would not oppose this sub-section, having regard to the Minister's views on it ; but I would be very strong on the point that suspension in those circumstances must not involve loss of pay. That is very important.

Mr. Traynor

The Deputy may be assured that it would not involve loss of pay if a man were not found guilty of the matter in respect of which he was suspended.

Captain Cowan

Yes, but guilty or not guilty, he must be paid, in my view, for the period of suspension. If he is placed under arrest, he forfeits pay from then until the date of the court-martial, unless the court-martial otherwise determines, and if he has made away with stores, the court-martial has power to deal with that. If he is suspended for three months while investigation is taking place, he may be a man with a wife and family, and it would be entirely wrong that he would be deprived of his pay. While I agree there should be power in the section for suspension, I would not agree that that should mean automatically loss of his pay.

Mr. Traynor

I assume that he would lose it automatically, as the same applies to post office officials and others. If he were found guilty, he would lose it from the date of suspension rather than the date of sentence, as he would not be giving service to the State from the time he was suspended.

I am wondering if Deputy Cowan is suggesting, as an alternative, that the man be put under immediate arrest.

Captain Cowan

The Minister said that there might not be evidence to justify arrest. If there were, I would be for it, as it would mean a speedy trial and an opportunity of clearing himself.

Mr. Traynor

You know how nervous the Army authorities would be of preferring a charge straight away. They would prefer that an individual should be suspended and then to investigate carefully. They might be perfectly satisfied that stores were missing and they might have a certain amount of evidence that the stores were going to a certain place, but could not put a charge straight away. If they were certain of the culprit, the only way they could stop it, while investigating the matter, would be by suspending him, so as to save the State from further losses. In that case, the Army authorities would prefer suspension to arrest.

Mr. Collins

Could that not be met by relieving the officer of his appointment ? Deputy Cowan's point does advert to something, in that it might involve an officer in being months without any emoluments at all. If he were relieved of his appointment he could not exercise power over stores.

Mr. Gallagher

Would he not have to be put in some other post ?

Mr. Collins

He could be put on the unattached list.

Captain Cowan

Is there any provision for suspension of an officer at present ?

Mr. Traynor

Not in legislation.

Captain Cowan

We got on for 30 years without it. Army men with practical experience would be very strongly opposed to bringing in this provision. An officer might be suspended on the order of a superior and kept suspended for a period of three months, not receiving any pay, and then be charged before a court-martial with some small offence, say the neglect to fill up a form correctly.

Mr. Traynor

Oh, no.

Captain Cowan

Now, let me put a case that I can visualise. He is charged before a court-martial with a small offence such as neglect to fill a form correctly and fined £2, and then we may have the Department of Finance saying that that officer will receive no money for the period for which he was suspended because he had been convicted of an offence by a court-martial.

Chairman

That could certainly happen.

Mr. Carter

Would it not be within the discretion of the court-martial ?

Captain Cowan

The court can deal with the period from the date of his arrest and can make an order that he shall not lose money from the date of his arrest. That is a statutory power given in the old Act and in this Bill, but the court has no power to say that he should get money for the prior period.

Mr. Traynor

We have no power by which we can suspend an officer. Captain Cowan tells me that an officer has been suspended. Is that correct ?

Captain Cowan

I have not said so.

Mr. Traynor

What circumstances were you describing ?

Captain Cowan

I was putting forward a case that could happen. The Minister put one hypothetical case and I put the other.

Mr. S. Collins

If an officer had been suspended, I am sure that by now the Minister would be well aware of the facts.

Mr. Colley

Does this not introduce a new principle into the whole public service ?

Captain Cowan

No ; I am trying to prevent a new principle being brought into the Army.

Mr. Colley

In the public service, if, after investigation, a person is cleared, he is generally paid the back money. Sometimes payment is made only in respect of a certain period of suspension, but if the person is fully cleared he does not have to go without pay for the period.

Mr. S. Collins

Surely you are dealing with somebody slightly different when dealing with an officer of the Army and with circumstances which are slightly different. I am very much with Deputy Cowan in this issue. Suspension is something which I cannot visualise as being necessary on the Minster's own argument. The relieving of the man of his appointment and his non-suspension are going to lead to two things, a quicker investigation of the circumstances surrounding the whole matter and an early court-martial or otherwise. If the situation were to arise as in the hypothetical case outlined by Deputy Cowan, the Minister can rest assured that he would be burdened to an extent which he does not now appreciate by recommendations and solicitations of all types in connection with it because the Department of Finance, if they get the smallest loophole in the regulations, will be out for withholding money. We have had that experience in the Army before and the Minister is aware of the difficulties that can arise in the tug and drag between the Army and Finance.

Mr. Traynor

Captain Cowan says that he is not worried about the section, but about the principle.

Captain Cowan

Yes. I will oppose the section very strenuously, unless I get a very definite assurance that an officer suspended from duty will not forfeit his pay.

Mr. Hilliard

That refers to the date of his arrest ?

Captain Cowan

Once he is arrested, he is no longer suspended.

Mr. Traynor

I will have it looked into.

Amendment, by leave, withdrawn.

Section 46 agreed to.