Discussion on Section 97, amendment No. 94, resumed.
Discussion on Section 97, amendment No. 94
I would like to make one further point in connection with this. Every officer and soldier serving at the moment is serving under a contract which specifically includes the Sections 126 to 134, inclusive, of the Defence Forces Act, 1923. That is the specific contract at the moment. Their pay cannot be touched except in accordance with what is laid down in that law. I think that is a matter of importance in the consideration of this section. There is a further matter. The Act of 1923 was taken straight out of the British Army Act, particularly in regard to these sections which constituted the law in England under the Army Act since it came into operation there. In accordance with my own copy of the Manual of Military Law it is still the law in England governing the British forces, but I am subject to correction in that my copy is not the latest copy of the manual and I do not know whether any changes have been made in the law recently, but I would be surprised if they had. If the British Army consider it desirable to have these sections in their law to protect the position of officers and soldiers, and we have adopted those provisions and have had them in operation for 30 years, the position should not be changed now—certainly not to make way for something that may have appeared in the Canadian Act which has no relation to the affairs of the Army here. I have pressed the Minister very strongly to accept my amendment and include the sections of the 1923 Act, as amended by the Acts of 1924 and 1946. I think the Minister would be doing a very good service to the Army if he did that. I would strongly appeal to him to do that.
That British Act was enacted a long time ago.
1881, was it not ?
Yes, about 80 years ago. It was the follow-up of the Mutiny Acts and a whole lot of other Acts. It was a consolidating Act.
As I said yesterday, this matter was very carefully considered and it was decided that it would be administratively preferable that forfeitures, deductions and stop-pages, in addition to pay itself, should be governed by regulations. I gave as the reason that conditions of service and emoluments do not remain static and that circumstances might arise from time to time in which—as, for example, by the granting of new types of emoluments in cash or kind—new types of forfeitures or deductions might have to be provided for. It would be undesirable that the matter should have to be dealt with partly by legislation and partly by regulations, and it appeared to be a case in which it would be preferable to follow the modern tendency in regard to matters of administration by dealing with it wholly by regulations, at the same time providing the Dáil and Seanad with the usual power to annul where they consider that anything objectionable has been done. I do not share the fears that have been expressed as to the danger of leaving these matters to be dealt with by legislation. As I have said, unless there should be in the future new types of pay and emoluments which would also clearly necessitate changes as regards forfeitures and deductions, I do not contemplate that the regulations which would be made would differ in one material degree from the provisions at present contained in the 1923 Act. I do not propose in the regulations to alter the present forfeitures and penal deductions unless new circumstances arise, and if I or any other Minister does anything which may be regarded as objectionable, the Dáil will have its remedy. It might be well if I told the Committee how these forfeitures and deductions first appeared in legislation. Until the British Army Act of 1881 was enacted each regimental commander was responsible for paying his own men and each regiment had its own code of forfeitures and deductions, some more severe than others.
It became necessary, as an administrative matter, to prescribe a uniform code, and this was done in the Act of 1881. At that time there was no such thing as legislation by order for administrative matters, as we understand it now. If there were, it might have gone into such orders. As it was, it went into the Act of 1881, and it was copied from that Act into our 1923 Act. It was not thought of in 1923 as a protection against the Minister or officials of the Department of Defence. It was just copied, as so much else was, in the absence of any better guide, from the British Act of 1881. The British are still operating under that Act. If they were doing it now they would possibly, as we are, do it by regulations. As I mentioned yesterday, the Canadians, who followed the 1881 Act up to last year, have gone over to regulations, although we did not know that when preparing our section. But it is the modern tendency for administrative matters. As I have said, the regulations will not, as far as I am concerned, mean any difference from the Act. I cannot bind my successors, but the Dáil has the means of dealing with them if any changes of a fundamental nature are ever unnecessarily introduced. Certainly the regulations will not add one iota to the Department's powers or the scope of Minister's Orders. To correct one misapprehension which I may have created yesterday by referring to a deduction of £40 or £50 from a soldier in respect of a car accident, I should say that that case stuck in my mind because it was so exceptionally big. I should also emphasise that I do not make an Order very frequently. Often a month or months may go by without my having to make one. I do not agree that there are dangers in the proposed course. It is a matter of administrative convenience, and I would not put it any further than that, although, because it would be administratively convenient, I am anxious for the section as it is drafted. But neither I nor my Department are so tied to it that, if here were general fears about how it would be operated, I would want to force it on the Committee. I ask the Committee not to oppose it, because I think there are no dangers in it, but if the Committee's fears cannot be allayed otherwise I will not insist on it.
If I thought that the Army was to be controlled for the next hundred years by the present Minister I would accept his assurance. But I cannot accept it. He cannot give an assurance in respect of somebody else who may occupy the position of Minister for Defence in 10, 20, or 30 years time. Even if the present Party set-up was to remain, it is quite possible that within that set-up there might be an exchange of Ministers and we would have a different Minister for Defence. I am opposed to the Minister being put in a position that without coming to the Dáil for an amendment to the Act he can be compelled to prepare and publish a regulation which might alter the position in regard to forfeitures and deductions. I would say this also to the Minister: the British Army Act is an annual Act just as our Act of 1923 was. It has to be introduced into the British Parliament every year and passed every year. Members of Parliament avail themselves of that opportunity—and a number of people have suggested that it might be a good idea to have that system here—to make such amendments as they considered necessary. Since 1881 no change has been made in respect of the questions we are discussing even though the British Army had gone through the Boer War, the Great War when they had millions of troops in the field and the last war when millions were also engaged. They considered those sections important enough to remain unaltered. There is this further point: in 1881 when they put in this statutory protection in respect of the pay of officers and soldiers they did not say a man was entitled to so much pay ; they said that he should get the pay that was prescribed. In other words, the amount of pay of officers and soldiers could be altered from time to time and was always so altered. That meant that when the Act was passed the right of the Minister to prescribe pay was admitted. But they did not allow him to make regulations in respect of deductions and forfeitures. Similarly when the 1923 Act was passed here that same section was included so that the Minister could make regulations as to pay which he could prescribe—there was, of course, a well-fixed practice that a man's pay was never reduced during his period of service—but statutory provisions were included with regard to deductions.
I think we have discussed this at great length. We have only got two hours to-night and I think Deputy Cowan should be satisfied.
Mr. Brennan
It seems to me that Deputy Cowan accepts the principle with regard to regulations.
I only want two words to finish. For the reasons he advanced the Minister is asking me to withdraw my amendment. I could not do that. I could not feel I could do it. I feel that a number of people are looking forward to this Committee insisting on this section. If I knew, as I said, that the Minister would be the Minister for the next 20, 30 or 40 years I would accept his assurance.
Mr. Brennan
Is that not acceptance of the principle ?
It is true that I can only speak for myself, but I have stated my views here in very clear language and it is going on the record and will be available to every Minister that follows me. I am giving that assurance not alone for myself but for the Department of Defence and certainly, as far as the Department would be concerned, it would honour the assurance I give as the Minister and the civil head of the Department. That assurance, which I cannot go beyond, is, I think, as full an assurance as a person in the temporary position which I occupy can give. It should allay the fears Deputy Cowan appears to have.
My fears are too serious. I have to insist on the amendment, but I would as strongly as I can urge the Minister to accept it.
Deputy Cowan's main argument, I think, is that the only statutory protection for a member of the Defence Forces is that contained in sub-section (2) (b) in Section 97 and Section 100, but I am sure Deputy Cowan would be satisfied that the present Minister has no idea of victimising the soldier and that he could not visualise any future Minister doing anything to victimise the soldier in any way. I did feel a bit worried about this question yesterday, but all this will go on the record and in the circumstances I cannot see any future Minister going beyond the assurance given by the present Minister.
Just one thing I would like to ask. There is a proviso in Section 131 of the 1923 Act :—
" Provided that the deduction from ordinary pay under this section shall not in any week exceed two-thirds of the offender's pay for that week."
There is no saver like that under the Bill. Under this Bill a soldier could be docked his whole pay if the Minister made a regulation to that effect. I would like to ask the Minister whether he considers that for a start anyway the safeguarding provisions that are in the 1923 Act should be incorporated in the regulations. There are a number of very definite safeguards for the soldier here, including that one which lays it down that he cannot have any more than two-thirds of his pay stopped in any one week.
Mr. Brennan
Look at Section 98.
Section 98 (2). But that does not quite apply to what we are talking about.
It does not quite cover the point I am making. Personally, as I have already said, from the administrative point of view I find it very hard to see how the Minister can deal with the matter if he has not the power to deal with it by regulation, but I would like the Committee to have some definite assurance with regard to safeguards for the soldier. If the Minister could tell us that he would incorporate those safeguards in the 1923 Act I think that Deputy Cowan's objections would be——
No.
I can assure you that the position will not be worsened by bringing in regulations.
I have listened to a Minister giving an assurance to the House that the Irish News Agency would be operated in a certain way only. The ink of the Bill was not dry before the agency went outside the terms given by that Minister. I cannot take ministerial assurances as binding on his successors. It is not fair to ask me. There are a few examples I could give.
It is difficult certainly.
Mr. Brennan
The Minister can do nothing. No matter what regulations he makes he must put them before the House to get sanction.
That is true up to a point. You have two conflicting considerations.
The regulations must be laid before the House.
No. There will be no objection unless some Deputy is energetic enough to bring in a motion to have it annulled.
These regulations become the law after a certain number of days.
" . . . if a resolution annulling the regulation is passed by either such House within the next subsequent 21 days on which that House has sat after the regulation has been laid before it, such regulation shall be annulled accordingly. . . . "
The difficulty is this: that that type of legislation weights things in favour of the executive. On principle a number of people think that legislation by Order is fundamentally bad. The odds are on the side of the Minister. No single Deputy is going to move against a regulation, or at any rate move against it in time. We must strike a balance between modern administrative needs and the necessity for protection. Could not the general safeguards be incorporated in the Act and have the regulations within them? Whereas I feel the Minister should get the power to deal with these matters by regulation it would probably be more satisfactory if, for instance, the safeguard restricting deductions to two-thirds of a man's pay was included. The statutory protection for soldiers is no longer there and the most we could hope for is that it would be incorporated in the regulations. That is the difficulty but if the Minister can give an undertaking ——
What has been the practice on that point up to the moment ?
It has been strictly observed.
Mr. Brennan
Has not the Act been amended in the past ?
On two occasions, only.
Mr. Brennan
Yes, but it has been necessary to amend it. Is it not the underlying position that there should be no need to amend an Act ? I hear the Army Act being constantly talked about year after year. Now, when an attempt is being made to clear the whole thing up, if this particular section of the 1923 Act is again included, will you not be in exactly the same position that you started from ? I can see us in some period in the future having to approach the House to amend it.
You are pressing things too far. One could apply that argument now to the whole Act.
In 1923, as has been stated, the Act was brought in and passed through the Dáil without any discussion. In 1924 after being in operation for one year they saw that it needed some amendments and they were made. From that time up to 1946 they had not to touch it. In 1946 they brought in a " footy " little amendment to the ordinary Army Act saying a man could be compelled to forfeit the amount of a fine imposed by civil court. That was not put in for the benefit of the soldier, as many tell us.
At one of the earlier meetings of this Committee I remember we had a very long discussion on the question of inserting a provision such as is contained here in sub-section (2) of Section 97. We are putting in this particular safeguard, but it is not a safeguard at all now according to Deputy Cowan. It is suggested that a resolution such as that provided for would not be introduced in the Dáil, that such a regulation would not be annulled. If there were a flagrant breach of an assurance given by a responsible Minister on behalf of his Department—you must remember that if a Minister gives an assurance of this kind he is not giving it lightly, he is giving it after full discussion with the superior officers of his Department— if there were such a flagrant breach I am satisfied that every member of the Oireachtas would stand behind the Deputy who brought in a resolution to annul a regulation which it had been promised would not in any circumstances be made.
What would appear in this case——
From that point of view I feel sure the insertion of that paragraph (b) is as full an assurance as can be given. I believe that people would resist a flagrant breach of a Minister's assurance.
Supposing there is a situation where such injustices as we are contemplating turn up ? A hypothetical Minister—I am not, of course, talking of the present Minister—makes an Order. It is placed on the Table of the House and passed in the ordinary way by Deputies as most regulations are passed. The 21 days will have elapsed before the effect of this regulation is brought to the notice of anybody. The Deputy trying to get a remedy will have no opportunity short of bringing in a Bill to amend the Act, so that the safeguard here is largely illusory. I know I am stretching the case ——
You are stretching it a bit far.
But it is the type of case we will have to deal with. You know that even if a Deputy introduced a Bill on his own, certainly it would be over a year before it would be brought before the House. A number of other members of the Committee have been very nervous and have expressed their misgivings about this, but on the Minister's undertaking these same Deputies have had their nervousness allayed.
So far I have done nothing but ask questions and have not said anything at all. I waited to find out what is the position, but I agree with the Chairman that you must give the Minister powers like this to carry on. I am not impressed by the argument that the British Army Act has stood since 1881 and that it should not be amended now. I think after 70 years there must be reasons for amending it from my own experience of legislation. Apparently it was taken completely into the 1923 Act which we are operating. I think, with the present method of legislation, there is no reason why this power should not be given to the Minister. I have come to that conclusion after listening to this discussion. I think there is a reasonable safeguard there in paragraph (b) and I think unless you bring your mind to the state that you believe somebody is going to go out of his way to do villainy on some man or officer there is a reasonable protection there for the officer and man. If something is done outside what is being done at the moment I imagine some of those people will not be long letting some Deputy or Deputies know about it. I think the Minister has given us now as solemn an assurance as he could that the position will not be worsened by regulations which may be made under the Bill and, consequently, any further action he might take will have to come before the House. I think, from the administrative point of view, instead of having to bring in amendments, as Deputy Cowan suggests, when these things are wanted, it would be even better, to my mind, if we kept to the annual Army Acts. I think the Minister should get the power. It will be quite safe.
In 30 years there have been approximately 30 amending or continuing Acts brought in, and in all the 30 years with all the different Ministers we have not once thought of changing that section. That is important.
We had not brought in a permanent Act.
There have been all sorts of amendments. As the Minister described it, the Act is a thing of shreds and patches. Secondly, supposing a Minister for Defence in any Government in five or 10 years time brings in a regulation which we would all object to, but brings it in as a member of a Government, in practical circumstances is any member of the Goverment Party going to get up to move the annulment of the regulation ? Would not that be political suicide for any man ? If any member of the Opposition opposed it, it would not be worth a damn, for he would be on the losing side of the House. You can win in the Dáil only when you have the numbers with you. That is the position. A Minister can bring in a regulation because he has the majority behind him and if an independent or an opposition member brings in a resolution to annul the regulation he will be beaten. There is no protection there.
It is difficult to argue against that line of debate. At the back of Deputy Cowan's mind there is an imaginary fear that some Minister at some time in some place will produce some type of Order that will obliterate all the rights of a soldier.
Some of the rights.
That sort of thing does not happen. We are living in an age when people can look after themselves even without the aid of Deputies. I believe most of the fears expressed here by Deputy Cowan are imaginary, that, in fact, they will never be realised.
I share Deputy Cowan's fears and perhaps any other officer would, but I think there is an awful lot of substance in the last remark of the Minister. You have a different type of system to-day, and it is easier for the soldier and other people to secure their position as citizens than it used to be. The old Acts were made in the days when the soldier was a slave. No Minister would find it practical politics to reduce the soldier to the state he was in in 1890. For myself, I have misgivings about this, but balancing them up, weighing the pros and cons, I think the only practical thing to do is to give the Minister these powers and make him feel that we have these misgivings, to accept his undertaking, and assume the matter will be permanently run on the lines along which he has undertaken to run it. It is for those who are interested to be the watchdogs.
It should go out from here that no evidence at all has been produced that any right has been taken away by a Minister or anybody else.
The Act is there. I could give an hour's record of injustices and grievances if you like.
Anybody reading the report would think somebody somewhere was going to do a terrific amount of harm to members of the forces.
It is the way the regulations work out that causes the fear. Some of us who have been in the machine fear that there is a ground for fears without casting any aspersions on the military, high up or low down.
Mr. Brennan
What was in the 1923 Act ?
You dare not touch a man's pay except under certain circumstances.
Mr. Brennan
Yet, you can give 100 instances, you said.
I can give, over 30 years, a record of injustices perpetrated against members of the forces.
In spite of the 1923 Act ?
I am not talking about the 1923 Act at all.
However, we have discussed the situation enough and we are pretty clear about it now.
I am not going to add anything more to my arguments. I have said enough. It has been stated in the course of this debate that the Minister has brought in this on the advice of military personnel. Now, obviously, the military people, whether privates or generals, cannot come into any political discussion in regard to the Bill. There are associations of ex-officers and soldiers who have the same knowledge that the Chairman and other members of the Committee have of injustices done by regulations. I am perfectly sure that when these people hear of this proposed change they will make all the representations they can to the Minister not to do this. I know the soldier cannot do anything about it. They are not permitted, but their comrades of former years will. I would rather the Minister accepted the appeal I have made than that the Committee should take a decision against it. This Bill will have to go into the Dáil. This particular section can be debated and the Minister or anybody else can have no illusions that every point made here will not be made again in the House and again in the Seanad. These points will be made by people concerned from the defence point of view with having a satisfied Army. It would be much better if the Minister would say now that he will keep the conditions that were there for 30 years. I cannot make any stronger appeal than that. If the Committee think the matter has been sufficiently discussed we will have a division.
Do you not think the military who advised the Minister have as much experience as the Chairman and yourself ?
These are things the Chairman and I do not want to talk about. You get different types of people in an organisation such as the Army. Certain descriptions are used about some military types that I would not like to use before the Committee.
I have heard all sorts of things but whenever I go to investigate them I find they are petty. When you have expert advice from men who are at this job, day in and day out, you are entitled to accept it.
Before you accept that they are all angels, let me tell you that I know they are not.
Captain Cowan is working on the basis that life in the Army is a hell, that it is unbearable and intolerable. I want to repudiate that. As one responsible over a number of years for the Army, I deny that. If a man has to meet a deduction, he will naturally make it out to be an injustice. Deputy Cowan may have been mulcted at some time and he, too, no doubt, regarded it as an injustice. That is human nature. You cannot get over that. From my own personal experience, I am more than astonished that life in the Army should be pictured as being so despicable. I think it is a libel on the Army.
Let me say clearly I was never mulcted or fined during all my Army experience. I am very proud of that fact. I am not talking about conditions in the Army at all. I am trying to provide protection for men in the Army, protection which, from my experience of the misuse of regulations, I think is necessary.
Deputy Cowan has been consulted more than once by members of the Forces and has been responsible for saving the rights of many personnel. But I am wondering whether that situation will be any worse under regulations. Ultimately, is it going to make an awful lot of difference in a particular case whether the regulations are in the statute or are as provided for here ? It is the misapplication of regulations rather than the wrongness of the regulations that I think we are really concerned with. I must say that I have an awful lot of sympathy with what Deputy Cowan has said, but I am driven back to the point where you have got to see that administration is made possible. I would like to see general safeguards worked in, enough elasticity given to the Minister to make regulations with, at the same time, certain general specified safeguards. But that, of course, is easier said than drafted.
The safeguards in the 1923 Act have stood the test of time. What is the position at present ? For two years or more I was a member of a board that used to make regulations. That was my duty. On that board we would make regulations as we were ordered.
We would do the best we could with them. But they were no sooner out than we were ordered to make a change and another change and another change. To give an example of the sort of thing that will happen, I drafted a regulation dealing with Army holidays and inserted a regulation making January 1st an Army holiday. The regulation was sent around to everybody. When it came to the Minister, the Adjutant-General was ordered to have this regulation amended so that January 1st would not be an Army holiday. I was instructed to make the change. I might add that I did not obey the order I got, and January 1st is still an Army holiday.
That is going a little outside the Bill.
If you were not mulcted, you should have been, then.
Mr. Brennan
Apparently you are not going to get away with it so easily.
I think I am safe after 20 years.
One thing the Army was hoping for from a permanent Bill was that the multiple code of Defence Forces Regulations would not be necessary, and that the old stream of regulations would be stopped. But this Bill will not achieve that. On the balance, however, this is an Act that the Minister will have to have, important as I regard the objections raised. I would like the Committee to appreciate that Deputy Cowan has expressed a number of things that anybody who knew the machine, particularly as a private soldier or an N.C.O., would agree with, but after this discussion I think the soldier can be safeguarded.
All our worries as regards safeguarding the soldier's rights have been recorded here.
Do not put that down because it will be read against you some time.
The point is, it would be most unwise for a Minister to bring in regulations which would act against the soldier. You talk about it being political suicide for anyone to bring in an annulling motion, but it would be just as surely suicide for a Minister to bring in the offending regulation in the first instance.
Deputy Cowan has put on record the strength of his opposition and the nervousness of other members of the Committee has been recorded, as well as the Minister's undertaking.
I have endeavoured to put the case for giving protection. That case has a tremendous amount of merit, as will subsequently appear. I have had experience of this work from all sides, having been for a period legal adviser, having worked as an officer of courts-martial as judge advocate, having defended and prosecuted with experience from the company right up to the Adjutant-General's branch. From that long experience I think a mistake has been made now. Even though the Committee may decide against me I hope that will not be the end of it and that the Minister will consider it very seriously with his advisers. If he comes back on the Report Stage with an amendment to insert in this section of the 1923 Act, covering the fundamental protection of the soldier, I will welcome that action as a big, generous gesture.
Amendment put.
The Committee divided : Tá 1 ; Níl 6.
Tá
- Cowan, Peadar.
Níl.
- Minister for Defence.
- Colley, Harry.
- Brennan, Thomas.
- Gallagher, Colm.
- Carter, Frank.
- Hilliard, Michael.
Amendment declared lost.
Amendments 95 to 98, inclusive, not moved.
I move amendment No. 99 :—
In sub-section (3), line 37, to insert " in whole or in part " after " Minister."
The purpose of this amendment is to make it clear that, where the Minister has power to remit a forfeiture or deduction, he may remit it in whole or in part. That is in accordance with practice.
Amendment agreed to.
Section 97, as amended, agreed to.