Monday, 31 May 1926
Dáil Éireann Debate
There are two points which need reference. One was raised by Deputy Johnson as to the effect of having the word “or” where there is reference made to “service with the amalgamated company or any amalgamating or absorbed company.” I have taken legal advice on the matter and I am informed that there is no possibility of the phrase being interpreted in the way Deputy Johnson fears and that although the word is used it will definitely include service with the amalgamated company or with an amalgamating or absorbed company.
Mr. McGILLIGAN: On page 4, line 10. It came in twice, in connection with amendments Nos. 5 and 6 and the wording is: “for every completed year of his service with the amalgamated company or any amalgamating or absorbed company.” The Deputy feared that that might separate these periods of service and that they would not be counted together. I am informed that that is not so.
There was a further question as to whether there should not be an amendment in regard to a long amendment proposed by Deputy Johnson on the last section, in lieu of which a certain amendment proposed by myself was accepted and now stands as Section 8. Deputy Johnson asked if there could not be some addition made so as to  ensure that the proceedings before the arbitrator would be open court proceedings. I am told the regulations that were made by the arbitrator prior to his resignation provide, among other things, that there should be requisite notice given to the parties, and any safeguards that might be necessary by having proceedings insisted on as open court proceedings are secured by the regulations. I cannot say that these regulations will be kept on by whoever is the arbitrator in future, but I presume that either the same or some similar regulations will be made. The point the Deputy set out to secure in having open court proceedings is, in fact, secured by the regulations made by the arbitrator.
Mr. DAVIN: I desire to register my personal protest on the Final Stage of this reactionary and confiscatory measure. In the most emphatic manner I protest against this Bill being passed. Those who voted for the Second Reading voted on the understanding that the Bill would not be applied retrospectively. At a later stage the Minister, unfortunately, secured the votes of the majority of Deputies for a qualified undertaking on the assurance that he gave on Second Reading. Various amendments were put forward on this side which, had they been accepted, might improve what appeared to us from the very beginning to be a very bad Bill, a Bill which aimed at confiscating rights given to railway servants who might become redundant under the 1924 Act, and who would be entitled to certain compensation terms. One amendment was calculated to make possible the payment of pensions at periods similar to periods at which the railway servants, previous to their retirement, were being paid their wages or salaries. The Minister turned down that amendment on the ground that it would not be convenient for the company. Apparently, the only reason for turning it down was to enable the company to retain, for one year, the sum that would be due to a redundant official in order that they might make use of the money for whatever purpose they considered most convenient and suitable.
 One Deputy on the Farmers' Benches referred to the fact that the railwaymen had secured, through the original Act, terms which were not justified, and indicated that the only grounds for the retention of terms not justified were that these men had given service during the pre-Truce period and they should not be treated in the manner proposed under the amending Bill. So far as the railwaymen are concerned they have not claimed, and are not claiming—I state this emphatically—anything over and above what they are entitled to; they claim nothing beyond what other servants of the State have claimed as a result of other similar measures. We passed here a Local Government Act which gave certain compensation terms to redundant poor law officials, provided that no suitable positions could be found for them following their dismissal as a result of Union amalgamation. No Bill was brought forward to repeal the provisions of the Act giving certain terms to those people. In the same way terms were given to pre-Truce civil servants who refused to act under this Government, and these terms have not, so far, been repealed. The only case in which power is sought to repeal the compensation terms given to any servants, public or private, as a result of measures passed here, is this case affecting railway servants.
I recognise that it is useless, at this stage, to say anything that might tend to alter the mind of the Minister in regard to this measure. It must be quite obvious to the Minister, if he reads in the Official Report the speeches made on the Second and Third Stages of the Bill, that even he was not quite conversant with the actual meaning of the Bill that he now asks the Dáil to pass. That will be dealt with in another place in a more effective way. So far as I am concerned, I look forward to the time when the Seanad, treating the whole matter on its merits, will prevent the Minister from securing through this Bill things apparently which he did not himself recognise when he first brought the Bill before this House. I oppose, in the most emphatic way, the passage of the Bill through its final stage, and I leave it to Deputies who  vote for the final stage of this Bill to justify before their constituency what they have done, especially in giving a vote in favour of retrospective legislation.
The Minister stated he had no responsibility for the appointment of an arbitrator, following on the resignation of the arbitrator who dealt with the cases that came before him, on the basis of the original Act. It is very significant, whoever is responsible, that no arbitrator has been appointed to decide in such cases as would come before him pending the passage of this measure. I take it that the failure to appoint an arbitrator is due to the fact that the Government were not anxious to prejudice the position, or allow decisions to be come to under the existing law in the cases listed for hearing.
AN CEANN COMHAIRLE: Does the Deputy realise what his statement means: that the Chief Justice who appoints the arbitrator has not appointed him for some reason connected with the Minister's policy? I am sure the Deputy does not mean that, and, if he does not mean it, then he ought to make that clear. The Chief Justice appoints the arbitrator, and the Deputy says it is significant that no arbitrator has been appointed since the first one resigned the position, and that that is because the Government does not want something or other. The meaning of that is quite plain. Perhaps the Deputy would like to reconsider it?
Mr. DAVIN: I have to look at it from this point of view: that no decision, under the existing law, has been come to, by the arbitrator, since the 25th March, a date before this particular measure was brought in. I leave it to whoever is responsible to take upon himself the responsibility for not having appointed somebody, or other, to the position vacated by the arbitrator who resigned.
The PRESIDENT: I must interrupt to say that the Government neither directly nor indirectly approached any  member of the Judiciary in connection with this or any other matter touching the office. I do not know if Deputy Davin quite realises the danger of his statement getting publicity and of being believed by people unacquainted with, or by people who do not wish to acquaint themselves with, the present state of the Government's administration in the country. It would be a most dangerous thing if any person, outside this House, should get the impression, or if the suspicion were to arise, that such thing, as might be inferred from Deputy Davin's speech, could occur. I strongly suggest to the Deputy that he should make it perfectly clear that he is not casting any imputation upon the Judiciary. If he has in mind that any member of the Judiciary would be open to suggestions of that sort, it would be his duty to come here and call public attention to it, and to have a resolution tabled to have that particular member of the Judiciary dismissed.
The PRESIDENT: I would like the Deputy to understand I do not mind what he says in criticism of the Government, but I do mind what he says in criticism of persons who have not the opportunity of defending themselves, and who, even if they were to defend themselves, would still leave a certain section of the community with the suspicion that there was some under-current or some truth in the inferences that could be drawn from the Deputy's statement. That is a very grave danger.
Mr. DAVIN: The arbitrator, in the first instance, was appointed as the result of an application made by an individual who was declared a redundant official, and who desired to have his claim dealt with by an arbitrator appointed by the Chief Justice. The Minister said when the arbitrator resigned, there remained over 180 cases to be heard. He also made the statement that there were 235 applications submitted for hearing under the existing  law somewhere about the middle of April. Somebody is responsible for the fact that no arbitrator has been since appointed.
AN CEANN COMHAIRLE: The delay is about four weeks. It may seem a strange thing to say, but I am not so much concerned with the unfairness to the Chief Justice or to anybody. The Deputy is being unfair to himself and to the whole system of government in the country when he makes the suggestion that he has made. The Chief Justice is well able to survive any such statements made about him, but the ideas of government are not able to survive them so well. If a party on either side asks for the appointment of an arbitrator then, surely, the matter is quite simple.
Mr. DAVIN: It was assumed, that as a result of the retirement of the arbitrator who was first appointed by the Chief Justice, somebody would be automatically appointed by the Chief Justice to replace the individual first appointed, and that person would be charged with the responsibility under the existing law, not under the terms of this amending Bill, of dealing with the cases that would, in the ordinary course, come before him. My protest is against the non-appointment of an arbitrator because that failure prejudices the cases that will come before his court from being dealt with under the existing law.
Mr. DAVIN: If the President suggests that, then I certainly withdraw  any such statement. I stated emphatically that the introduction and passing of this measure is nothing short of—and is calculated to be nothing else—than a vote of censure on the original arbitrator for giving decisions according to the law passed here in the cases that went before him.
AN CEANN COMHAIRLE: The arbitrator acted in a judicial capacity. He decided on the law as he found it before him in accordance with rules judges and arbitrators observe, and in accordance with rules that judges and arbitrators must observe. The Minister is entitled to the opinion that the decisions of the arbitrator, while in accordance with the law as the arbitrator found it, were not in accordance with the intentions of the Oireachtas, or with the intentions of the Minister. These are two completely different things: the law as the judge finds it and the law as we meant to make it. If we come in here and change the law, as we frequently shall—we may as well clear the position up at this early stage—because it turned out that the law is something different from what we thought it was, that is no reflection on the judges whatever. This point has been raised before. If I remember the Minister's original speech correctly, the words, I think, he used were that the arbitrator was coerced into certain decisions. That is an exact statement of the case, and it reflects in no way and in no sense on the arbitrator. It simply reflects, if you like, upon the way in which the law was made, and not on the person who interpreted the law in accordance with the rules of interpretation. The Deputy should disabuse his mind once and for all of any idea that the arbitrator has been censured in debate in this House or that this Bill is intended to be a censure on the arbitrator.
Mr. DAVIN: The reason that I came to that conclusion was that I asked the Minister during the Second Reading of the Bill what reasons had been put before him by the Railway Company with respect to this amending measure, and he told me that he was only concerned with it from the point of view of the railway users. When I put before  the House certain salaries of the higher officials, and certain pensions given to certain officials, which were not quite in keeping with the maximum laid down in the measure, the Minister answered—and I think Deputies will bear me out in this—that it was no business of his. But it is his business, apparently, to see that junior or subordinate officials of the Railway Company will be deprived of rights given them under a previous Act. When attention was drawn to cases of higher officials who were given pension rights by agreement between themselves and the Board, in excess of the maximum laid down, the Minister said it was not his business. I think the Minister will at least admit that is the case. On the Second Reading the Minister said that he had got no statement from the Railway Company in support of this measure, but, during the Committee Stage, he trotted out freak cases which must have been given to him by someone “in the know” in order to justify him in keeping certain clauses in this Bill. That is the reason I made the statement, and, while I recognise that it is no use to proceed any further with protests against this measure, I will have to call upon Deputies to register their opinions on its merits and justify themselves in making it retrospective, when the Minister on the Second Reading said that was not intended.
Mr. JOHNSON: I associate myself with the protest against this Bill being passed in a form which has the effect of depriving railway servants of their rights under the last Act. I do so, particularly, because many of the employees who had rights under the last Act, and who were proceeding in accordance with the law embodied in that Act, have been frustrated by circumstances over which they had no control. Many of these men were dismissed or reduced during the last year. The cases I read out the other day had reference to men who were dismissed. Claims were made in some cases as early as May of last year following up to December. Delays in respect to agreement about compensation occurred. In the end those delays resulted in the final appeal to the arbitrator. The non-functioning of the  arbitrator for at least two months has resulted in depriving these men of their rights under the existing law. Whatever may have been the cause of that delay it was not the fault of the men themselves. They suffered a certain loss as they had certain rights under the existing statute. They took all the steps it was for them to take and had a decision been given in their cases that decision would have been based on the existing statute. Now because of the delay and of the action of this House in bringing forward new legislation they are deprived of their rights under this statute which rights in the ordinary course of procedure ought to have been established by judgement given. I think that is a distinct violation of all equity and the Dáil ought not to give its approval by passing the Third Reading of this Bill.
Mr. McGILLIGAN: I have objected already, and I object again, to any phrase being used as to any qualification put upon any pledge I gave with regard to retrospection. I believe I sensed the opinion of the House correctly. I myself was responsible for only one amendment in that direction —the amendment deleting the clause. There was another amendment brought forward which I said I liked. I think five amendments were brought forward with regard to the substituted clause and I found, by clear statement from three people, who had spoken definitely against retrospection, that the clause now in the Bill met with their approval and what they had meant when they spoke as they did speak on Second Reading.
With regard to the arbitrator, I would like to clear up that point by a very definite statement. I have never made the suggestion—I do not think anybody else made it until Deputy Davin more or less implied it to-day— that the arbitrator had not discharged his functions as the terms of the original Third Schedule required. I was always careful, as has been pointed out by the Ceann Comhairle, to use the phrase that the arbitrator was “coerced by law” into doing certain things. When Deputy McGoldrick, on Committee Stage, slipped into the use  of another phrase, I stood up at once and corrected him. I had his assent to the correction that what he meant was—and what pretty well everybody meant—not the way the arbitrator made awards, but that the position was such that the arbitrator had to make certain decisions according to the strict terms of the original Third Schedule. Only when the terms of that Third Schedule had been interpreted by a skilled lawyer did it become possible to say that what was set out in the Third Schedule was not what the House intended to pass. Nobody has ever suggested that the arbitrator in any way failed to discharge his duties as the old Third Schedule required.
Mr. JOHNSON: May I point out, for the information of the Minister, that the original Bill would not have had quite so easy a passage had it not been that we recognised, on this side of the House, that the Schedule did give the rights which the arbitrator decided it gave?
Mr. McGILLIGAN: Deputy Johnson's followers have gone back even on the demands they made under the old Railways Act, because their latest statement, as circulated to Deputies, was that they only required what was in the Third Schedule to the English Act. They have got a great deal more than the corresponding schedule in the corresponding English legislation gave.
Mr. McGILLIGAN: Why does not the Deputy follow the argument and try and answer it, if he must interrupt? Deputy Johnson says that the  original Railways Act would not have got the passage it did through this House if it had not been realised by Deputies on the opposite side that it gave the powers which the arbitrator decided it gave. I say, if that be a fact, that some of those who are interested in the Railways Bill have recently gone back on the Third Schedule of the Railways Act, because they are not claiming now what was in the Third Schedule of that Act.
Mr. McGILLIGAN: Deputy Davin thinks that I was holding all sorts of meetings with the railway company, while stating that I was acting only in the interest of the railway users. The astounding proof of that is I was able to bring before the Dáil what the Deputy described as “freak cases.” Where could I have got those cases except from the railway company? That was how the Deputy put it. Does the Deputy think that I would bring forward legislation, founded on certain judgments given, without having seen those judgments, or does he suggest that it is not open to me to get those judgments? I got those judgments where I had a perfect right to get them, and I did not get them in any way through the railway company.
Mr. McGILLIGAN: Is there a registrar and staff? Is it possible to apply to the registrar or his staff for information as to the cases pending, as to cases that have been sent in—cases in which awards have been made, and cases still hanging fire? Might I not argue in the same way: Deputy Davin has particulars of all these cases——
Mr. McGILLIGAN: Well, of a considerable number of them. Might it not be suggested that Deputy Davin, who is supposed to represent the interests  of the railwaymen, was hobnobbing with the railway company behind their backs, since he was able to get those particulars?
Mr. McGILLIGAN: There are two ways in which one can be ignorant— one, not getting information, and the other making wrong use of the information one gets. Reference has been made to the higher officials. This amending Bill is designed to deal with the Third Schedule of the Act. This Third Schedule has nothing to do with the higher officials referred to. The question of the higher officials is for the proprietors of the railway company. If they, in their judgment, pass censure on the directors for having made those absurd payments—absurd, as Deputy Davin alleges—then they will suffer for it in certain ways. I have indicated that these sums may come before the Tribunal, if they are a proper charge on revenue. They may be looked into by the Railway Tribunal, and certain facts may be brought out. But as far as I am concerned, I have very little to do with the higher officials. I should like if Deputy Davin would get from the railway company some indication of the total sums involved as between those affected by the Third Schedule and those higher officials who are not affected by it. It might make an interesting comparison.
Deputy Johnson has made a statement, without the slightest shred of evidence, regarding delay. He jumps from that statement of delay to an allegation of either deliberate holding-up by the railway company or else negligence on their part. I say there are other parties to whom blame may be imputed. It is not for me to say which of them is blameworthy. But Deputy Johnson has not completely proved the case he sought to make as regards delay. There would need to be a great deal more evidence before there could be any acceptance on the part of the House of the inference which Deputy Johnson seeks to make that the railway  company deliberately held up cases from going before the arbitrators. Motion put. The Dáil divided: Tá, 28; Níl, 9.
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