DÁIL IN COMMITTEE. - CRIMINAL AND MALICIOUS INJURIES (AMENDMENT) BILL, 1923, COMMITTEE (Resumed).

Friday, 2 March 1923

Dáil Éireann Debate
Vol. 2 No. 36

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(1) Wherever an application for compensation under the Criminal Injuries Acts in respect of an injury to which this part of this Act applies includes a claim for compensation in respect of the destruction of or damage to any documents to which this section applies, the compensation (if any) payable in respect of such documents shall be measured in accordance with a scale to be prepared by the Minister for Finance in consultation with the Law Officer of Saorstát Eireann and the President of the Incorporated Law Society of Ireland.

(2) The documents to which this section applies are:

(a) Title deeds and other deeds;

(b) Contracts and agreements in writing;

(c) Debentures;

(d) Stock and share certificates and other documents of title to any stock or share;

[1964] (e) Policies of insurance;

(f) Wills, probates and letters of administration, and official copies thereof;

(g) Official copies of Court orders, affidavits and other documents relating to legal proceedings.

(3) This section applies to the documents aforesaid, whether the same were in the possession of the applicants as being the person legally entitled to the custody thereof, or as being solicitor for such person, or as holding such documents for such person for safe custody only.

The PRESIDENT: Information on William T. Cosgrave  Zoom on William T. Cosgrave  I beg to move Clause 11. There is, as far as I can see, no amendment to it.

Mr. GERALD FITZGIBBON: Information on Gerald Fitzgibbon  Zoom on Gerald Fitzgibbon  In Sub-section (3) the word “applicants” should be in the singular.

Mr. JOHNSON: Information on Thomas Johnson  Zoom on Thomas Johnson  At the last stage of this Bill this Clause 11 was discussed by Deputy Darrell Figgis, who raised a point which the Minister effectively, as it appeared at the time, dealt with. But it does occur to us, on further reading, that there is a possible doubt as to what the meaning is of “whenever an applicant for compensation under the Criminal Injuries Acts in respect of an injury to which this part of this Act applies includes a claim for compensation in respect of the destruction of and damage to any documents.” If the loss of the document entails the loss of property, can it be said that compensation claim may be made for the loss of the property because the destruction of the document involved the loss of the property? As explained by the Minister, the intention was to pay for the re-drafting or re-preparation of the document, but there is a possible interpretation of the clause that the loss of property being in respect of the destruction of a document might be read to be included. I draw the attention of the Minister to that, and ask him to satisfy himself in the interests of the Treasury.

The PRESIDENT: Information on William T. Cosgrave  Zoom on William T. Cosgrave  The compensation referred to here is simply sufficient compensation to restore a particular instrument that is lost, not the property.

Question, “That Section 11 stand part of the Bill,” put and agreed to.

(1) The compensation and the costs awarded by any decree made under the Criminal Injuries Act in respect of an injury to which this part of this Act applies, shall be paid to the applicant or other person entitled thereto under such decree by the Minister for Finance in the manner provided by this section.

(2) Every such decree as aforesaid shall declare the compensation, and the costs thereby awarded to be payable to the applicant or other person entitled thereto, but no such decree shall contain any declaration as to the person by whom such compensation is payable.

(3) The Minister for Finance may deduct from the amount of any compensation payable by him under this section the amounts following, that is to say:—

(a) any debt or other sum of money due or payable by or collectable from the applicant or other person entitled to such compensation to or by the late Provisional Government of Ireland, or the Government of Saorstát Eireann or any Department or authority of either of those Governments;

(b) any money due or payable by or collectable from the applicant or other person entitled to such compensation to or by the Irish Land Commission;

(c) Any money due or payable by the applicant or other person entitled to such compensation in respect of any poor-rate or other rate levied by any county or district council or town commissioners.

(4) All costs payable by the Minister for Finance under this section shall be paid in money out of moneys to be provided by the Oireachtas.

(5) The Minister for Finance shall pay in money out of moneys to be provided by the Oireachtas the following portions of any compensation payable by him under this section, that is to say:—

(a) any compensation to which a reinstatement condition is attached;

(b) the whole of the compensation in every case in which the total amount of the compensation does not exceed £500;

(c) the first £500 and one-half of the excess above £500 in every case [1966] in which the total amount of the compensation to which no reinstatement condition is attached exceeds £500 and does not exceed £3,500;

(d) the first £2,000 in every case in which the amount of the compensation to which no reinstatement condition is attached exceeds £3,500.

(e) such further sum not exceeding £50 in addition to the amounts aforesaid as is necessary to reduce the balance of the compensation remaining to be dealt with under the next sub-section to a multiple of £50.

(6) So much of any compensation as is not payable in money under the foregoing sub-section shall be paid by the Minister for Finance to the applicant, or other person entitled thereto, by the issue to the applicant or other person aforesaid of a security or securities created under this section for the amount of so much as aforesaid of such compensation.

(7) The Minister for Finance may, for the purpose of the foregoing sub-section, by order create such securities bearing such rate of interest and subject to such conditions as to repayment, redemption or otherwise as he shall thing fit.

Every order made by the Minister for Finance under this sub-section shall forthwith be laid before each House of the Oireachtas, and if both such Houses shall within the next twenty-one days on which either House has sat after such Order is laid before the Houses pass resolutions annulling such Order, such Order shall be annulled, but such anulment shall not prejudice or invalidate any matter or thing previously done under such Order.

(8) The principal and interest of all securities issued under this section, and the expenses incurred in connection with the issue of such securities shall be charged on the Central Fund or the growing produce thereof.

(9) In every case in which the Minister for Finance shall have received notice of any assignment, mortgage or charge affecting the compensation payable by him under this section, he may, subject and without prejudice to any reinstatement condition attached to such compensation or any part thereof, pay [1967] such compensation into the County Court by which the decree awarding such compensation was made, and such compensation shall subject to the rules of Court for the time being in force in regard to moneys paid into County Court under section 42 of the Trustee Act, 1893 (56 and 57 Vict., Ch. 53), be dealt with in accordance with orders of that Court.

(10) In every case in which the Minister for Finance shall have received no notice of any assignment, mortgage, or charge affecting the compensation payable by him under this section, he shall, subject and without prejudice to any reinstatement condition attached to such compensation or any part thereof, pay such compensation to the person to whom the same is declared by the decree to be payable, and the receipt of such person for such compensation shall be a sufficient discharge to the Minister for Finance.

(11) The costs referred to in this section do not include any costs which, in the opinion of the Judge, ought to be borne by the party who incurred same, or to any costs which, in the opinion of the Judge, ought to be paid by the applicant to any other party.

The PRESIDENT: Information on William T. Cosgrave  Zoom on William T. Cosgrave  I move Section 12, which deals with the liabilities of the State very largely. The State has discharged its liabilities and some moneys are due to it or to some services in respect of which the State has a certain liability, and it is to enable the Minister for Finance to deduct such charges out of compensation paid that this section is inserted. There is an amendment, I think, to this section.

CATHAL O'SHANNON: Information on Cathal O'Shannon  Zoom on Cathal O'Shannon  I move as an amendment—Before Section 12 to insert the following new Section:—“If on the hearing of an application to which this part of this Act applies the Judge is satisfied that grievous hardship would be suffered by the applicant if he were required to pay in full and immediately

(a) any debt or other sum of money due or payable by or collectable from the applicant to or by the late Provisional Government of Ireland, or the Government of Saorstát Eireann, or any Department or authority of either of these Governments;

[1968] (b) any money due or payable by or collectable from the applicant to or by the Irish Land Commission;

(c) any money due or payable by the applicant in respect of any poor rate or other rate levied by any County or District Council or Town Commissioners,

the Judge may, if he thinks it right to do so, attach to his decree a provision (hereinafter called a `relief provision') that payment of the amount or amounts due shall be partially remitted to such extent, or shall be deferred to such time, or shall be payable in such instalments and at such intervals as he may think proper to appoint, and the applicant shall have relief accordingly.”

This new section pretty well explains itself. It is quite conceivable, and I think, has happened, that for various reasons, some arising out of the recent war, and the present war, numbers of people who would be claiming compensation might have considerable sums deducted from their compensation awards either because—as, for instance, in the case of our friends, the farmers—they were a little behind with moneys due to the Land Commission, or in the case of others in respect of Poor Rates and so forth. The amendment would provide that in these cases, where the judge thinks there is a real hardship in the deduction, he could give some relief in the matter of time, or, perhaps, in the matter of amount; but, at all events, that there should be a deferring of the payment of the amount of the deduction in full until such times or at such intervals as the judge might think would be fair, everything considered, to the applicant.

The PRESIDENT: Information on William T. Cosgrave  Zoom on William T. Cosgrave  I am not disposed to look at all favourably upon this amendment. In the first place the Government's accounts, and the accounts of Local Authorities and their liabilities generally such as contemplated by this Act are due to be paid on exact dates, and the non-payment of them on these exact dates throws out of gear the whole finance machinery either of the State or the Local Authority. Those who have a close and intimate experience of the finance of Local Authorities know that the ratepayer has a life only of twelve months, and that in respect to that twelve months he has all the liabilities [1969] which the Local Authority has to bear for that particular period, and it is an injustice, and it is unfair to the vast body of the ratepayers that you should give relief to a single one of those ratepayers making up the whole amount for his liability for a particular period.

Now, so involved is such a system of finance, that there are certain funds which, properly speaking, if not spent in their own term, and if they amounted to a particular sum should actually be handed back to the ratepayers in respect of the year in which they were struck. That does not happen in practice. The financial machinery is so regulated that each one of these individual Boards has a liability for that particular period, and you disorganise the financial machinery if you carry over an overdraft or the balance as the case may be. It is well known that local authorities have not been able to collect the rates regularly in the majority of cases, and there is a great danger that if any sort of sanction or acquiescence in such a proposal were to eventuate, this condition of affairs would arise—namely, that the local authority, in order to relieve the burden, would borrow money, and repay gradually such accumulated liabilities. That would be altogether immoral—a financial immorality of the first magnitude—because revenue which, in the ordinary way, should bear its liability for a particular year would be subsidised by capital liability, and a number of ratepayers of the future would have to discharge expenditure—normal, ordinary current expenditure—of a particular year. Local authorities should not borrow unless to spread the burden of the advantages which are derived from capital expenditure over a number of years, so that as regards the first part of the amendment, relating to the payment of rates to County and District Councils, the case for that absolutely goes. To come to the Land Commission, this is a service which affects the credit of the whole State. On a particular date the Land Commission annuities are to be paid, and somewhere within a fortnight or three weeks of the payment of them the State has got to discharge the whole of the sums, and sometimes more than the whole of these sums. You are then saddling the ordinary taxpayers of the community for a service that has been [1970] inaugurated for a particular section of the community. You can at once see that there is no morality behind a proposal of that sort. If you once let the idea into people's heads that there is going to be acquiescence in that form of financial administration, there is nothing to keep them from organising a campaign to secure relief of the whole for one particular period in which they are liable to pay; and they might say, “Let us postpone it and we will pay interest on the money.” That would damage the credit of the country and disorganise the finances of the State. Now, as regards debts or other sums of money “due or payable by or collectable from the applicant to or by the late Provisional Government of Ireland, or the Government of Saorstát Eireann,” let us see where that leads to. In some cases where a decree has been received, the Board of Works has made advances in good faith, believing that that sum will be awarded. It is obvious that the Central Fund should be reimbursed to any extent that it has made money available for that purpose. There again the same thing comes in— that, in good faith, the money was lent, and in good faith it ought to be repaid, and repaid without delay. I would ask the Deputy, in view of the implications and the dangers which an amendment of this sort, if pressed, would give rise to, not to press his amendment.

CATHAL O'SHANNON: Information on Cathal O'Shannon  Zoom on Cathal O'Shannon  May I point out to the Minister that, while I do not want to do anything that would upset the necessary arrangements as to time, date, or anything else fixed by the local or national authorities, or even the Land Commission, numbers of cases may arise where the debts or monies payable may actually have been incurred by the inability of the applicants to pay these debts, their inability arising because of the destruction of their buildings or the machinery that brought them in money. I do not ask for anything like what the Minister fears, but what I do ask is that some consideration be given so as to prevent hardship. I do not think that any Judge, exercising his discretion, would do anything that would gravely upset the finances of the State. But I do think there are possibly many cases in which actual hardship would be suffered by an applicant, because [1971] it was the loss of the instrument or buildings in respect of which compensation was being claimed that caused the debts to be incurred either to the Land Commission or to the local authority.

The PRESIDENT: Information on William T. Cosgrave  Zoom on William T. Cosgrave  The Deputy will notice that for a claim of this sort to be admitted would be the thin edge of of the wedge as regards compensation for consequential loss. It does not enter into it. Then the State is in this position, that it borrows money at interest and as long as that is outstanding or withheld from the Government the Government is paying interest on money the use of which is in the hands of a person whom it has compensated and the person so compensated is at an advantage as against the State.

Mr. FITZGIBBON: Information on Gerald Fitzgibbon  Zoom on Gerald Fitzgibbon  The suggestion of Deputy O'Shannon or the end that he seeks to attain by this amendment has already been attained by an amendment that was introduced into the Emergency Powers Act, one of the Bills that we passed the other day, giving County Court Judges the power which is already possessed by High Court Judges to put stays upon the execution of decrees. If this amendment were inserted it might give rise to very great difficulties. Suppose the Provisional Government or the Land Commission or a County Council proceeded in the ordinary course against a person who owes a sum of money to the Provisional Government or to the Land Commission or in respect of rates and that the Judge on a case being made to him, such as the Deputy who moves this amendment suggests ought to be made to the Compensating Judge, refuses to grant this stay or on the other hand that he was impressed by the case made, and he did grant a stay, you might in either case get the two conflicting jurisdictions. You might get the County Court Judge refusing a stay on a Civil Bill for rates and you might have an applicant coming forward in respect of compensation and applying to the Compensating Tribunal to give him a stay which the other Tribunal had refused. It does appear to me that to introduce this into this Bill is putting upon the Tribunal that is to administer this Act a duty that clearly does not belong to it at all, and it would not have the material for granting a stay [1972] in an appropriate case that the other Tribunal would have. No rates can be taken off a man except by legal process. That legal process would come before the ordinary Courts, not before this Compensation Tribunal at all, and it is before those Courts that the applicant might make the case and, in my opinion, could make the case that because his property had been destroyed a stay ought to be put on the execution of the decree or a stay ought to be put on the decree itself. I rather fancy that there would be far more material before the regular Courts and they would be far more likely to grant this stay than the Compensatory Tribunal which would really not have the proper materials to go upon and before which evidence that might be adduced before the County Court Judge or the High Court Judge would not be admissible at all.

CATHAL O'SHANNON: Information on Cathal O'Shannon  Zoom on Cathal O'Shannon  Really I am sure there are not many of the people whom I and my colleagues represent who would be very much affected or benefitted by the amendment that I am moving, and those who represent the people who might be affected do not seem particularly interested; and, as the Minister and Deputy Fitzgibbon put up so many obstacles in the way, I will withdraw the amendment.

Mr. D.J. GOREY: Information on Denis John Gorey  Zoom on Denis John Gorey  I see the difficulty of this if it were put into a Bill. I would sooner trust to administration than put this into a Bill.

Mr. DAVIN: Information on William Davin  Zoom on William Davin  On the point of order, the amendment has been withdrawn.

AN CEANN COMHAIRLE: Information on Michael Hayes  Zoom on Michael Hayes  The amendment can only be withdrawn by leave. The Deputy can speak to it because the amendment is still before the Dáil.

Mr. GOREY: Information on Denis John Gorey  Zoom on Denis John Gorey  I am interested in the amendment only to this extent. I know of several cases all over the country in which the position of certain men should be considered. I know, in several districts in the country, of men having to pay annuities while the Irregulars have been quartered on them for six months, and they have had to feed them, whether they liked it or not. The roads have been blocked, their property has been taken away, and they have suffered considerable hardship, and it would be a good thing, and I have [1973] spoken often to the Minister responsible about it, not to enforce the law in their case at least for the moment, to give them some time. But I do not want to put it into a Bill; I do not want to have this practice established at all, because I know where it will lead.

Professor MAGENNIS: Information on Professor William Magennis  Zoom on Professor William Magennis  The appeals to the President made by Deputy Fitzgibbon have fallen upon deaf ears in the case of Deputy Gorey. Deputy Gorey's plaint comes several weeks too late.

Mr. GOREY: Information on Denis John Gorey  Zoom on Denis John Gorey  I did not make any plea at all.

Professor MAGENNIS: Information on Professor William Magennis  Zoom on Professor William Magennis  It applies really to that terrible Bill empowering Under Sheriffs and their Deputies——

AN CEANN COMHAIRLE: Information on Michael Hayes  Zoom on Michael Hayes  Then it is out of order.

Mr. KEVIN O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  It is an Act.

AN CEANN COMHAIRLE: Information on Michael Hayes  Zoom on Michael Hayes  What is the Minister's point of order?

Mr. O'HIGGINS:  It is an Act, not a Bill now.

Professor MAGENNIS: Information on Professor William Magennis  Zoom on Professor William Magennis  I am speaking of the time at which Deputy Gorey ought to have raised this point. It is obvious that if on a plea of financial difficulty or strain this relief provision were asked for in the court it would amount to giving the money of the State without interest for a period to the man who had raised the case. If the money is in effect garnisheed, the compensation which was coming to him by the operation of this clause is garnisheed, then he is put into difficulties, and he cannot pay his other debts, and he comes before the County Court. Deputy Fitzgibbon's amendment now introduced into the Act, or part of the Act, comes to his relief. But the need for these things ought to have been foreseen at the time, and Deputy Gorey, instead of raising it now, should have voted with us against the Bill, which required that amendment.

Mr. GOREY: Information on Denis John Gorey  Zoom on Denis John Gorey  On a point of order, the Deputy is quite wrong. I am not raising any point, and I do not like these points being raised which are really nothing but paper points.

[1974]AN CEANN COMHAIRLE: Information on Michael Hayes  Zoom on Michael Hayes  Is there leave given to withdraw Deputy O'Shannon's amendment?

Amendment, by leave, withdrawn.

Mr. DARRELL FIGGIS: Information on Darrell Figgis  Zoom on Darrell Figgis  I beg to move to omit Sub-section 3 (a). The amendment on the paper is to omit Sub-section (3). It should be 3 (a). The Sub-section of the sub-section that I am moving to delete reads, “any debt or other sum of money due or payable by or collectable from the applicant or other person entitled to such compensation to or by the late Provisional Government of Ireland, or the Government of Saorstát Eireann, or any Department or Authority of either of those Governments.”

The reason I suggested this should be deleted is not that no money that is rightfully owing should fail to be collected, but that this particular form of collection should not be adopted, inasmuch as it is inequitable and injurious. If the money be actually owing to the State, and a certain person has compensation granted for the loss of certain premises he might have either the whole amount or part of the amount owing to the State for taxes in one form or another in dispute. If that compensation had not been granted and if his premises had not been damaged the ordinary course would have been for the onus of suit to lie on the State. In the ordinary course, that is if I understand the law in the matter aright, but for the introduction of this Sub-section the onus of suit would still lie in garnishee proceedings but the effect of this paragraph is that the money is arbitrarily deducted from the amount of compensation due, and the person who has suffered the damage, because he or she has suffered damage, has the responsibility thrown upon him or her of protesting against some action and has the instance of suits in the matter thrown upon him or her instead of its lying upon the State. I suggest that it would be more equitable if that section were left out and the State had to proceed in the normal way to prove that the debt was a right debt and a debt of substance and ought to be met instead of actually abstracting it from certain other monies admitted to be due to the person in question and then leaving the person in question the responsibility of bringing the suit himself—when [1975] he should be the defendant to make him the plaintiff. I think the effect is unjust and should be omitted, and I move that that Sub-section be deleted.

AN CEANN COMHAIRLE: Information on Michael Hayes  Zoom on Michael Hayes  The amendment being moved is to omit in Section 12, Sub-section 3 (a). The amendment of which notice was given was to omit Sub-section (3).

Mr. DARRELL FIGGIS: Information on Darrell Figgis  Zoom on Darrell Figgis  It is marked Sub-section 3 (a).

AN CEANN COMHAIRLE: Information on Michael Hayes  Zoom on Michael Hayes  What is on the Order Paper is to omit Sub-section 3, and that is exactly as we received it.

The PRESIDENT: Information on William T. Cosgrave  Zoom on William T. Cosgrave  That is what is on the Order Paper, and if that be the case I take it it is in the same position as the previous amendments (a) (b) and (c).

AN CEANN COMHAIRLE: Information on Michael Hayes  Zoom on Michael Hayes  No; it is not; it is a different amendment from the previous amendment altogether.

The PRESIDENT: Information on William T. Cosgrave  Zoom on William T. Cosgrave  It is more exhaustive. It is not necessary for me to weary the Dáil with an explanation of the fact that the case moved by Deputy Figgis is a bad case, and is not open to consideration from any reasonable cause. There are very few cases of dispute in these matters, and this is a case where the general application of a useful provision is going to be made apply to a case of the constituent of some particular member of the Dáil who wants to show his form here. If there be a case such as has been suggested by him, I have yet to learn that Government Departments are not open to a reasonable consideration of these matters.

Mr. DARRELL FIGGIS: Information on Darrell Figgis  Zoom on Darrell Figgis  I think, sir, that the case is not so rare as the Minister suggests. I think it would be possible not to go outside the precincts of the Dáil for such an instance. There may be certain matters in respect to which there is a definite case of dispute, and at the present moment, their premises not having, unfortunately, been destroyed——

The PRESIDENT: Information on William T. Cosgrave  Zoom on William T. Cosgrave  Do you hope they will?

Mr. DARRELL FIGGIS: Information on Darrell Figgis  Zoom on Darrell Figgis  Their premises not having been destroyed, [1976] the onus of suit lies on the State. If their premises were destroyed the onus of suit would lie with them.

Mr. GAVAN DUFFY: Information on George Gavan Duffy  Zoom on George Gavan Duffy  I hope it will not be considered indiscreet on my part to ask the Minister for Finance the exact meaning of a couple of phrases in this sub-section which I do confess I do not follow. I understand the provision as to money due by an applicant, and as to money payable by an applicant, but what is the dark design lurking beneath the phrase “money collectable” from the applicant as distinct from money due to him? In these days one is afraid of phrases such as “money collectable.” There is no doubt there is an explanation, but I confess it is a little difficult to follow. May I also draw attention to the words “to or by the late Provisional Government”? I do not, I confess, see how that reads. What are the words governing “to or by”? As printed it does not seem to me that the section can be read to make sense. There is probably some word omitted. That “to or by” is in line 27. It probably refers to “due or payable,” but it does not so read.

The PRESIDENT: Information on William T. Cosgrave  Zoom on William T. Cosgrave  I take it, as far as “collectable” is concerned, it might mean trustees. As far as the other part is concerned, I do not know. I am not accepting responsibility for legal phraseology. If you are not able to settle the matter between yourselves, I cannot help you.

Mr. GAVAN DUFFY: Information on George Gavan Duffy  Zoom on George Gavan Duffy  The reason I dwelt upon “due and collectable,” is that under the Section it seems to me that if a man gets a decree and if money should be paid by that man in respect to some totally different matter, and if he gets a decree as trustee, the money payable by him in respect of the totally different matter will be taken out of the trust funds before he gets paid. I think that should be looked into before the next Reading.

The PRESIDENT: Information on William T. Cosgrave  Zoom on William T. Cosgrave  Very good.

AN CEANN COMHAIRLE: Information on Michael Hayes  Zoom on Michael Hayes  Is the amendment being pressed?

The PRESIDENT: Information on William T. Cosgrave  Zoom on William T. Cosgrave  Not at all.

Amendment put and negatived.

AN CEANN COMHAIRLE: Information on Michael Hayes  Zoom on Michael Hayes  Amendment 16 falls with Amendment 14.

[1977] (At this stage Mr. George Nicholls took the Chair.)

Mr. JOHNSON: Information on Thomas Johnson  Zoom on Thomas Johnson  I move Amendment 17:—“To add at end of line 30 in Sub-section (3):—`Provided that the powers granted to the Minister for Finance by this Sub-section shall not apply in the case of any debt or tax the payment of which has been withheld bona fide in obedience to any decree or order of Dáil Eireann or any person or persons acting with the express authority of Dáil Eireann or any Minister appointed by Dáil Eireann.”

I think it will be seen that this raises rather an important issue, and it requires that we should make up our minds whether we are considering the Acts of Dáil Eireann as being Acts of a Parliament or merely Acts of a Committee which can be overlooked. If debts were due to the Government of Great Britain and Ireland, or due to any other person by virtue of an Act which had been superseded by an Act or Order of Dáil Eireann, are we to consider that the present State and the Government of the State have a right to override the Acts or decrees or orders of the old Dáil or its servants? If Ministers take the view, if the Dáil takes the view, that the late Dáil had no authority, had no power to issue orders or decrees dealing with monies or debts or the responsibility of any citizen to any other citizen or community outside its own authority then we will follow one course; but if we consider that that Dáil had authority and power, rightful and legal authority, then I submit that we must make a condition that the present Minister for Finance who is under this section authorised to deduct certain sums due, that debts owing bona fide, at least moneys withheld bona fide in obedience to the order of the Dáil, ought not be considered a debt by the present Government or any succeeding Government. Obviously I am thinking more of arrears of Income Tax than of anything else, and I submit that arrears of Income Tax or alleged arrears of Income Tax, that have been withheld in obedience to the orders of accredited servants of Dáil Eireann ought not to be pounced upon by the successors of the authority which gave these orders. Many people bona fide acted under the implied direction of the Dáil and refused to pay Income Tax [1978] during the last couple of years before the establishment of Saorstát Eireann. The moneys were in many cases indeed expended in the interests of the Government of the time, applied to the funds of that Government, paid over to that Government, and I am urging that we should make a condition in this Bill that the Minister must not be allowed to impound moneys on account of such alleged debt. The issue is a bigger one than the one ostensibly raised because it challenges the Dáil to say whether we are legalising the acts of the old Dáil or not. I think it is time that we had some understanding whether we are to consider the acts and decrees of the Dáil of 1919-20 or the Government appointed by the Dáil as legitimate and therefore recognisible by this Dáil or whether we are to treat them as being the acts and decisions of a mere political committee which had no legal authority. I invite the Minister to make clear what the policy of the Government is in that particular respect.

The PRESIDENT: Information on William T. Cosgrave  Zoom on William T. Cosgrave  The amendment reads:—“Provided that the powers granted to the Minister for Finance by this Sub-section shall not apply in the case of any debt or tax the payment of which has been withheld bona fide in obedience to any decree or order of Dáil Eireann or any person or persons acting with the express authority of Dáil Eireann or any Minister appointed by Dáil Eireann.” To that extent I would have no objection, and I could give an undertaking that such will be the case. I am perfectly satisfied to give that for these reasons:—First, that I am prepared to carry out any Order or Decree passed by Dáil Eireann that has not been repealed or amended by this Dáil, and secondly, because in this particular case the State will lose no money because it has not passed any decree and has made no Order and gave no directions at any time—either the Cabinet of the late Dáil or the previous one or the late Dáil itself or the previous one, at no time passed any decree to withhold the payment of Income Tax or Land Commission annuities. As a matter of fact, these matters were under consideration more than once in the Cabinet, I believe, of the First Dáil, and the person who objected to any such [1979] action being taken—I believe I am speaking in a way that will be borne out by others—was the late Minister for Defence, Cathal Brugha. He objected, and pointed out that persons in business might have their business upset and be put to much more cost than the actual cost of the payment of income tax. I myself said to many people, “Withhold your payment of income tax until it is going to cost you more than the payment, and then pay it at the last moment.” We did not advise at any time, and we did not make any order at any time, that people should not pay land annuities. We may have said, “You can delay,” but we never said “You can withhold,” because we knew perfectly well that, although the British Government would be obliged to make up the loss, it would create a reaction on our own credit here, and would be a disadvantage to us much greater than the disadvantage to the British Government in having to make up the difference between the amount collectable, the amount due, and the amount required to discharge interest on the sinking fund on the stock. Now, taking it on the larger issue, the late Dáil did not impose taxation, and it realised that, although there was a force in this country which was looked upon and generally accepted throughout the whole country as a usurping force, it nevertheless administered certain services, and that in respect of those services there was a certain moral authority for collecting certain taxes. It was not a case—because he is an enemy we will strike him in every possible place. That was not the attitude. At that time the position of affairs in this country was perfectly constitutional. It never meant anything approaching anarchy, anything approaching financial disruption, anything approaching hideous disorder. It always had in mind a perfectly constructive policy with regard to these matters, and when the question of income tax was under consideration, it was under consideration to this extent, that persons who would be relieved by virtue of payment to the British Government would have to pay it to the Exchequer of the Dáil Eireann—it would not be lost. It did not mean that the person relieved would be thus benefited to the extent of the tax, but that it would be administered and collected by a [1980] popular body for the provision of certain useful services for the nation. Now, if there was any person or persons acting who did not act with the express authority of Dáil Eireann to the extent of ordering, advising, or decreeing a non-payment of these taxes, any Minister so acting was acting illegally and unconstitutionally, and had no authority whatever to order the non-payment of such sums. I accept, and have accepted all through, decrees and orders of the First and Second Dáil when those orders were legally and properly carried out. There may have been cases in which Ministers took upon themselves certain responsibilities and certain authority to which, perhaps, they were not entitled. For these things we do not stand. We stand for collective responsibility of the body, and the acts which the body performed when properly constituted.

Professor MAGENNIS: Information on Professor William Magennis  Zoom on Professor William Magennis  The amendment of Deputy Johnson, if valuable for nothing else, is eminently valuable for having drawn this explanation from the President. When I raised a portion of this question, it was in the later hours of the debate on the draft Constitution, and the President on that occasion explained that there was no decree issued by the Second Dáil ordering, directing, or inviting anyone to withhold payment of Income Tax to the British Treasurer I need hardly say I accepted his history unquestionably, but since that I have had an opportunity, as all of us here have had, of making ourselves acquainted with the proceedings of the First Dáil, as recorded in the Official Report, and there it is made very clear that when certain Deputies proposed to make British government difficult by withholding all payments of certain moneys, the members of the Ministry at that time, notably the Minister for Defence, were strong against the issue of any such decree on the grounds given by the President, that it might endanger the credit of the country. But I was unaware of that, nor were people in the country aware of it until long after the event. It is only now, thanks to the courtesy of the President, that some of us are aware of it, through our reading of the proceedings. Most of us were under the impression that the public acts, such as the burning of documents in Income [1981] Tax Collectors' Offices, and, above all, the burning of the Customs House, represented the policy of the Dáil at that period. That obviously was a mistake, and the men who did these acts were not rebuked in public or proceeded against, and, consequently, we were all left under the false impression that what they did was done as an act of the Dáil through its officers or agents. I plead guilty of having been deceived in that way. I am now satisfied with the statement of the President. It is quite clear that I, at any rate, as an individual, put a wrong construction upon what happened. The men who dealt what was, after all, the fatal blow to English government in this country by the destruction of the Custom House, were acting outside the scope of their authority. They were not authorised to do these things. The men who destroyed Income Tax returns, and made it difficult and impossible, in some cases, for Income Tax to be collected, acted on their own initiative, and now it is the declared policy, and must be the policy of the present Dáil, to recover these moneys and secure them for the present Treasury of the Free State. That is the policy, and now, to save litigation, and save the double hearing of cases in the Courts, Sub-section 3 enables the State to impound, and, in fact, without garnishee orders, to garnishee these moneys. In view of, and in consideration of, the depleted character of the Free State Treasury, I do not think any of us is likely to object to that.

Mr. KEVIN O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  It is just a little amusing to be forced to realise that the chief significance of the past to some people is, that they may be enabled to evade their liabilities in the present. There was never any instruction issued as the Deputy who has just spoken admits, to the people of this country by the First or Second Dáil to withhold payment of either Income Tax or Land Commission annuities. On the contrary, it is within my knowledge that deputation after deputation came up from the country to the late General Collins, who was then Minister for Finance, urging this course upon him, telling him how immensely popular it would be if he were to issue an instruction that land annuities were not to be paid; and what political support it would insure for him and his movement. To his credit, in my opinion, he did not snap at that particular carrot. [1982] He was a builder, he was constructive, and he never wrecked where he had not his alternative machinery there to substitute, and he did not, so far as he could mould the development of the movement, go out at any time, in the spirit of the bull in the china shop, simply to wreck for the sake of wrecking. He had too real a sense of his responsibilities to do anything of the kind. He saw the danger of inculcating or propagating in this country the lesson that people should seize the excuse of the political or National situation to evade what were really liabilities; and he saw, too—for he thought in terms of achievement, unlike others who thought always of picturesque failure—that at some time in the future, probably, the responsibility of government in this country would be on us, or some of us, and he was not the kind to take steps that would make that difficult task more difficult. That is simply by way of preface, and to emphasise the fact that at no time did we issue orders, or give encouragement to people to avail of the National situation to evade their liabilities. I mention that as there has been a tendency lately more or less in that vague way that the present is the child of the past, to try and put on us the accusation of having sown the seeds of anarchy in Ireland. Now, I take it, even those who said there was an implied injunction to withhold Income Tax from the British were withholding Income Tax from the British qua British, and were not merely seizing the National situation to put so much money into their own pockets. I take it it was a mere temporary suspension, and that the money was put away into a separate account to be paid to the first native Administration that would come into existence as a result of the struggle going on. I am so sure of that, that I do not wish to dwell on it for a moment, because this country I am profoundly confident, does not contain within its shores citizens whose patriotism does not run further than their own purse.

Mr. JOHNSON: Information on Thomas Johnson  Zoom on Thomas Johnson  I think there has been rather an evasion of the issue. Before dealing with the evasion, let me draw attention to the proceedings of the Dáil of the 19th June, 1919. There were asked certain questions regarding Income Tax, as: Is it recommended to refuse to pay; what steps are to be taken to deal with the forms, and [1983] so on? The Minister for Local Government, whom the President may recognise, acting for the Minister for Finance, said, “the Finance Ministry is considering the question of Income Tax.” After showing that the bulk is paid by public companies and by people who were not exactly under the influence of the Dáil then sitting, he said the principal difficulty in the case was neither the moral nor the legal objection to it, but rather to secure sufficient support for an agitation against the imposition. He said:—“Income Tax is illegal, and an evasion of the 7th Article of the Act of Union, but it has not been objected to in time. If there were a general strike against it we would have some hope of defeating it.” Then, a little later: “the Ministry are considering the question generally.” Now, subsequent to the consideration, the Dáil was not sitting publicly or issuing Decrees on every public hoarding, but it was advocating policies and actions through its agents and its representatives, and subsequent to the consideration by this Dáil of the illegality of the Income Tax, we had a campaign initiated against payment of the Income Tax, and the destruction of the machinery for collecting the Income Tax. I agree with Deputy Magennis that any loyal citizen of the State at that time was justified in inferring from the discussion, agitation and propaganda by deed, that it was with the consent and implied direction of the Dáil of the time that Income Tax should not be paid to the British authorities, that Income Tax was illegal. No Decree of the Dáil was passed, as far as I can gather, imposing Income Tax. Therefore, no Income Tax was legally enforceable during that period from 1919 to 1920. The action that was taken against the Income Tax offices was taken because those offices were being worked for an alien authority against the will of the people. They were collecting money from the people which they had no right to collect, and that was the purpose of the attack on the offices. Anyone here in contact at the time with Ministers and Ministers' Secretaries and Army officers were thoroughly justified, from the directions that were given by those people as to the minds of the Ministry, in saying that it was against public policy to recognise the act of the British Parliament imposing Income Tax upon the [1984] Irish people. The real question arises here: Was the tax, which was an annual tax, a legitimate burden put upon the Irish people? It was a tax of an Act of Parliament passed after the setting up of the Dáil, when that Parliament had no authority in this country. The Act of that alien Parliament was not ratified by the Dáil and those people who gave allegiance to the Republic, those people who acknowledge the Dáil, as the supreme authority, were perfectly right in saying that this was an imposition. It was not a debt, and it was not legally enforceable, but now, under a new Constitution, the successors of the old Dáil come along and say that the citizens of this new State who were citizens of the Republic, are in duty bound to recognise those taxes as legally enforcable debts. I maintain that the position is indefensible, if we are to recognise the old authority as a legitimate authority, and it cannot be legalised until this Dáil imposes a tax to cover the amount that was due, according to the taxation papers that are being sent out.

Now it may be said that in one of the taking-over acts which were adopted recently, authority is given, but authority was not given by those acts, as I read them, because the phrase used is “enforceable,” and I maintain that they are only enforceable by illegality if the old Dáil had any real authority. We have been discussing a Bill to-day to legalise and regularise certain acts that were done extra legally, things that were done, not by acts of the Parliament of the time, but by acts of the Executive. I want to suggest that we shall have to be consistent in our views of the legitimacy or otherwise of the old Dáil, and I want also to suggest that it is arguable and, I think, probably easily proveable, that at least as large a sum of money, perhaps a larger sum of money, would be collectable from the people who owe Income Tax, say, from the period when the Provisional Government was established, when there was reasonably proveable and legitimate authority in the country. From that date taxation might be legally enforceable, but anything prior to that should not be demanded.

Mr. BLYTHE: Information on Ernest Blythe  Zoom on Ernest Blythe  This question of Income Tax was under consideration by the old Dáil and by the Cabinet of the old Dáil on many occasions, and they always [1985] looked at the realities of the matter, and they always looked at it from the point of view that was taken by the late General Collins, who never had any doubt of our success, and who never had any doubt, as the Minister for Home Affairs indicated, that some of us would soon be engaged in carrying on the government of the country. The idea was never entertained seriously, at any rate, of asking the people not to pay Income Tax or Land Commission Annuities, because I have frequently heard the late General Collins say: “it will be easier to get the people to stop paying than to get them to commence again.” The present President said the Cabinet of the Ministry had the question of Income Tax under consideration. We had the question of Income Tax under consideration in this way, that a scheme was in preparation for the collection of this Income Tax, imposed by British law, by Dáil Eireann for the purposes of Dáil Eireann. That was under consideration at the time when the President spoke in June, and was not finally abandoned until a considerable time later, when the activities of the Black and Tans became so intense that we were convinced that the collection would be impossible.

It was intended to collect the tax, and out of the money collected to indemnify people who suffered. If the British Government, for instance, attempted to make an example of a man and to terrorise the income-tax payers by coming down very hard on certain people, it was intended to indemnify those people out of any taxes that would be collected. Some time in 1921 the project for collecting the tax was abandoned, but that abandonment was not regarded as final. I remember the late General Collins saying that he was convinced that for the present it would be impossible to collect the tax. As far as the Dáil and the Cabinet were then concerned the question of legality did not arise. We were prepared to accept the Acts that had been passed by the British Government, for the purpose of getting any income-tax that we might collect for the use of the Dáil and its Executive, assessed. The intention always was that if the tax were not paid to the British Government that it should be paid to the Exchequer of the Dáil. There never was, on the part of any responsible section of the [1986] Dáil, an intention of allowing people to get off and to put the tax into their own pockets. In insisting now that the tax should be paid we are following precisely the line of policy that was always in the mind of the First and Second Dáil, and of the Ministries of the First and Second Dáil.

Mr. G. GAVAN DUFFY: Information on George Gavan Duffy  Zoom on George Gavan Duffy  It is really very refreshing to hear Ministers justify their actions on the grounds of the policy of the First and Second Dáil. What the Minister for Finance has told us just now amounted to this: that he sees no objection to the amendment if you stop at the last line and leave out the words “or any Minister appointed by Dáil Eireann.” In other words that he agrees that any money withheld under order of the Dáil, or of a person acting within the express authority of the Dáil, is properly withheld, but objects that in some cases a Minister or other person may have given an order which is ultra vires. In effect I take it the President, as Minister for Finance, accepts everything in the amendment except the last few words. The question raised by Deputy Johnson is a very much more important one than the little question raised in this amendment, and I do not feel that one may discuss it satisfactorily or seriously on the Committee Stage of the Bill. It is, I suppose, sufficiently obvious to every one that but for the civil war there would have been no question of the status of the First Dáil and the status of the Second Dáil. Some of us had thought it would be necessary to wait until the next Dáil before the status of the First and Second Dáil was properly recognised. The President's statement just now is an exceedingly welcome one, because he has told us he recognises, and has always recognised, every decree of the two previous Assemblies. The immediate importance of the matter, apart from the question of national dignity— and it is due to ourselves and to the country that the two Assemblies that preceded the present one should be put in their proper perspective—is this, and I desire to direct the attention of the Ministry to it, since the question has been raised here: Owing to the circumstances of the time, this Dáil has been very remiss in giving effect to certain things decreed by its predecessor. A great many decrees [1987] were made by Courts appointed by its predecessor, and the point has arisen acutely owing to a recent case decided in the King's Bench, where the decision of a Dáil Land Court was overruled on the ground that a Land Court had no jurisdiction whatever. Of course, such a thing should not be, and I know that there are plenty of excuses to be made for the delay in putting this matter right. The matter has, however, now become acute, when you remember that a great number of decrees have been made by these Land Courts, and these Land Courts formed the most successful branch of the legal administration of the late Dáil. It is obvious monies must be due under such decrees, and monies may be due under what I may call English law which would not be due if such decrees are recognised within the meaning of this section. It is also obvious such decrees ought to be recognised, with, possibly, some exceptions for which provision can be made. From the fact that we have taken over the Judges who administered English law, who do not recognise the laws made by the Dáil before the present Assembly met, and who, from their standpoint, will continue to declare void any acts done under those Irish laws made in the last two or three years, it is very necessary that steps should be taken speedily to put that position right. There should, of course, be no necessity to question the status of the previous Dáil; but really there is, from the fact that we have taken over those Judges who do not recognise our law. I know a Commission has been sitting to try and put this matter right, but I do urge that it is a matter of very great moment, now that the decision [1988] come to the other day in the Courts will encourage numbers of people, against whom decrees were given by the Land Judges of the Dáil, to come along and claim that those decrees should be declared void and ultra vires, and they will be declared void and ultra vires by the present Judges as long as these Judges continue to administer only the English law which we have taken over, and not the Irish law we have made ourselves.

The PRESIDENT: Information on William T. Cosgrave  Zoom on William T. Cosgrave  I would like to say in connection with what the Deputy has just stated that the decision, I am advised, of the Dáil Land Court was bad and illegal under the Dáil decree itself.

Mr. GAVAN DUFFY: Information on George Gavan Duffy  Zoom on George Gavan Duffy  But that is not the reason why it was set aside. May I ask was not one of the reasons why it was set aside because of the suggestion that the Dáil Court was no Court at all?

The PRESIDENT: Information on William T. Cosgrave  Zoom on William T. Cosgrave  Well, I suppose some people obey Christian law because they are good Christians, and others to avoid damnation. The reasons are different, but the effects are the same.

Mr. GAVAN DUFFY: Information on George Gavan Duffy  Zoom on George Gavan Duffy  And the reasons make the difference.

The PRESIDENT: Information on William T. Cosgrave  Zoom on William T. Cosgrave  There is one thing I have to say here in connection with the justice of these cases. Many citizens paid their income tax and paid their land annuities during the war, and did not contravene any decree or order of the Dáil. Other citizens escaped these liabilities; and it just happens now that it is to the benefit of the Irish State to get in these liabilities of citizens who escaped payment during these periods, and I strongly advise them the sooner they pay the better.

Amendment put.

Donchadh Ó Guaire.
Seán Ó Maolruaidh.
Seán Ó Duinnín.
Tomás de Nógla.
Riobárd Ó Deaghaidh.
Darghal Figes.
Tomás Mac Eoin.
Seoirse Ghabháin Uí Dubhthaigh.
Liam Mag Aonghusa.
Tomás Ó Conaill.
Aodh Ó Cúlacháin.
Liam Ó Daimhín.
Cathal Ó Seanáin.
Seán Buitléir.
Domhnall Ó Muirgheasa.
Ristéard Mac Fheorais.
Domhnall Ó Ceallacháin.

Liam T. Mac Cosgair.
Mícheál Ó hAonghusa.
Séamus Breathnach.
Pádraig Mag Ualghairg.
Seán Ó Ruanaidh.
Mícheál de Duram.
Ailfrid Ó Broin.
Domhnall Mac Carthaigh.
Maolmhuire Mac Eochadha.
Earnán Altún.
Gearóid Mac Giobúin.
Liam Thrift.
Pádraig Ó hÓgáin.
Seoirse Mac Niocaill.
Criostóir Ó Broin.
Caoimhghin Ó hUigín.
Próinsias Bulfin.
Séamus Ó Dóláin.
Aindriú Ó Láimhín.
Próinsias Mag Aonghusa.
Éamon Ó Dúgáin.
Peadar Ó hAodha.
Séamus Ó Murchadha.
Liam Mac Sioghaird.
Tomás Ó Domhnaill.
Éarnán de Blaghd.
Uinseann de Faoite.
Domhnall Ó Broin.
Micheál Ó Dubhghaill.

The PRESIDENT: Information on William T. Cosgrave  Zoom on William T. Cosgrave  If Deputy White would waive his claim I would like to go a little further. Cannot we take the next amendment? I do not think it will be moved.

Amendment by Mr. Darrell Figgis to omit Section 7 not moved.

Progress reported, the Committee to resume on Tuesday, March 6th.


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