Public Servants (Continuity of Service) Bill, 1938—Second Stage.

Wednesday, 2 November 1938

Dáil Éireann Debate
Vol. 73 No. 2

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Question proposed: “That the Bill be now read a Second Time.”

Minister for Finance (Mr. MacEntee): Information on Seán MacEntee  Zoom on Seán MacEntee  This Bill has been rendered necessary by the emergence of certain questions regarding the position of public servants who, by virtue of the Constitution, became servants of the Government of Éire. In the case of certain civil servants transferred from the service of the British Government with special rights in regard to tenure and conditions of service it has been held by the board set up under the [282] Act of 1929 that while the officers in question had not been discharged from their employment, their translation from the Civil Service of Saorstát Eireann to the Civil Service of the Government of Éire operated to effect their discharge from the service of the Government of Saorstát Eireann, which Government ceased to exist upon the coming into operation of the Constitution. In fact, the board held that there had been a complete break in the constitutional régime and that the Government, as I have said, of Saorstát Eireann had ceased to exist. But this discharge was a purely technical one: it had no effect upon the employment of the officers who went to the board, for their employment was continued, nor had it any effect upon their tenure, conditions of service, remuneration, security or privileges which were, in fact, continued and secured to them under the Constitution.

The decision of the board, though it related only to transferred officers, might apply equally to all those public servants who were not transferred officers and it might on occasion give rise to difficulties—as, for example, if it were held that there had been a legal break in the continuity of service when the claims or rights of these officers to pensions came up for review or for determination. The Bill now before the House provides that if it should be held in future that a public servant was discharged from the service of the Government of Saorstát Eireann, this purely legalistic and notional discharge shall not be held to imply or to constitute an actual discharge from employment. It has, therefore, been provided in Section 2, paragraphs (a) and (b) of the Bill that every public servant who was in office prior to the 29th December, 1937, shall be deemed to have received an appointment on the same terms, conditions and tenure and in all respects indentical with that held by him in the service of the Government of Saorstát Eireann. It has further been provided in Section 2, paragraph (c), that such legal discharge followed by appointment as I have mentioned shall not constitute a break in the service.

[283] Paragraph (d) of Section 2 and Section 3 of the Bill deal with the special case of officers transferred to the service of this country from the service of Great Britain. These officers, as the House is aware, were secured in certain rights in relation to terms and conditions of employment. If they are discharged or if the conditions of their employment are altered to their detriment they are entitled to receive compensation which takes the form of retiring allowances at enhanced rates. The decision of the Article X Board that the change of employer which took place on the coming into operation of the Constitution effected a discharge of these officers would render the Government liable to pay compensation on demand to everyone of the transferred officers of which there are about 9,000 in the Civil Service. Now, no actual discharge of these officers, as I have already said, has been effected. Their remuneration, tenure, and conditions of employment remain unchanged and, indeed, in relation to their continuity of service, they will be given, I think, further security by this Bill when it becomes an Act. The Government feels, therefore, that it should not be called upon to pay compensation to persons who in effect have suffered no material loss or damage.

I should like to emphasise that it is not intended to deprive transferred officers of any of their rights to compensation in the event of actual discharge from their employment or any detrimental alteration of their conditions of service, but it is intended and, I think, quite justifiably intended, to protect the taxpayers from a heavy burden of compensation in respect of any purely legal and theoretical discharge or alteration of conditions consequent upon the coming into operation of the Constitution. As a corollary to all I have said, it is necessary to provide in this Bill that nothing in the Bill itself shall be construed as effecting any detrimental change in the conditions of service of the transferred officers, and that point has been covered in Section 4.

[284] It is intended that the measure, if enacted, will become effective as from the date of its introduction in this House, that is, as from the 26th October last. It will be remembered that on the 18th August last the Government intimated that it would not be prepared to pay compensation in respect of any claim for discharge for worsened conditions arising out of the coming into operation of the Constitution unless such claim had been submitted within six months of that date. The intention in fixing the limiting date was to enable payment to be made in the test case on which a decision had been given that the coming into operation of the Constitution had effected this legalistic discharge; while the Government at the same time intimated that it had under consideration the promotion of such measures as might be necessary to give effect to its decision not to pay further compensation for merely theoretical discharge.

This Bill is, in our view, the proper method of implementing the Government's policy in that regard. The terms of the Bill have been communicated to the Government of the United Kingdom, because that Government was a party to the agreement which is enshrined in the 1929 Act, and the Government of the United Kingdom has intimated that it has no observations to offer on the terms of the Bill. Owing to the fact that the Dáil was in recess, it was not possible to give immediate effect to the Government's policy in regard to the decision which has created the difficulty with which this Bill is intended to deal.

The Government has already complied with its legal obligations in regard to the original or test case, and it proposes to deal with the second case, in regard to which the board issued a determination, in exactly the same way as it has dealt with the first case. But it is not our intention to go any further in regard to this matter.

Shortly, then the position which the Bill is intended to create is to provide that no further compensation shall be paid to any person on the ground of technical discharge or worsening of [285] conditions consequent on the coming into operation of the Constitution. It does not interfere with any right transferred officers had under the Act of 1929. This Bill is designed merely to ensure that, due to a constitutional change in this country, transferred officers will not be entitled to claim Article X rights upon a ground which was never contemplated, which was not enshrined in the original agreement and was never contemplated by the parties to the agreement, that is, upon the ground of merely theoretical discharge which meant no cessor of employment and was not accompanied by any actual worsening in the conditions of service.

General Mulcahy: Information on Richard James Mulcahy  Zoom on Richard James Mulcahy  It would have been useful, and might have been appropriate if the Minister, when introducing the Bill, as well as giving the civil servants some assurance that they might even have further security for continuity of service under this Bill, would give them an assurance that they were going to be treated in an understanding way and recognised for what they are, as one of the most important national institutions we have, and also given an assurance that, under the Christian terms of the Constitution, they might be spared the tongues of Ministers and Party followers from election platforms.

I intervene in this debate just to take the opportunity of stressing two things. One is that the Civil Service is not liable to the charge which the Minister has implied against it, that it is unnational, that certain sections of it are unnational and that they will not accept the new Constitution. What is responsible for any attempted run out of the Civil Service is the miserable way in which the Government have treated the Civil Service. I put down questions to-day dealing with three periods. The first was the period when Fianna Fáil made its appearance as the Government of the country. Next came the period between the introduction of the Public Economics Act, of 1933, and the passing of the draft Constitution here, and then there was the period from the passing of the draft Constitution until now.

[286] So free from politics was the Civil Service at the time the Fianna Fáil Party took over the Government, that there were only five persons who applied to get out of the Civil Service between March, 1932, when Fianna Fáil took over office, and March, 1933, when the Public Economies Act came on the horizon. They included one postmaster, one shorthand typist, two warders and one asylum attendant. These were the only people with pre-Treaty rights who were anxious to get out of the Civil Service at the time. Only one person got out. In 1933 the Public Services (Temporary Economies) Act was introduced. Just as the Minister says now that he is going to protect the taxpayer against anything that may happen as a result of people trying to clear out of the Civil Service after the passing of the Constitution, so also the Minister was concerned with the taxpayer in 1933, when he and other Ministers told the House then that they were going to save £57,000. They pointed out then that the economic well-being of the State required of the Civil Service to have a £57,000 reduction made in the payments to it from the State.

In reply to a question which I put to-day, the Minister indicated that the actual saving to the State as a result of the Public Services (Temporary Economies) Act was £49,177. The information given in that reply to-day showed that between the period of the introduction of the Act and the passing of the draft Constitution 132 persons applied for discharge from the Civil Service and 109 received that discharge and, instead of saving £49,000, the taxpayer had to pay out a lump sum in gratuities on discharge of £48,675 and they had to arrange for the payment annually of pensions amounting to £29,645 a year.

The Public Services (Temporary Provisions) Bill drove civil servants with pre-Treaty rights out of the Civil Service to the tune that the economies that were made in the year that it was in operation were £49,000 but against that additional payments or gratuities were to be paid out. They were £48,675. The effect of the Bill was to saddle the taxpayers of the country with an annual Bill for £29,600 for [287] pensions. We now come to the position created by the passing of the Draft Constitution. Since the Draft Constitution was passed 40 persons have applied to leave the Civil Service. It is interesting to realise that of these people, four were of the higher executive class; four of the junior executive class; four are staff officers, one a Deputy accountant; one a second class officer and one an assistant inspector. All the others are officers occupying minor positions. Out of the 40, 13 are clerical officers, two are writing assistants, two are shorthand typists, one a sub-postmaster, and two are post office clerks. The fact is that any disturbance worth talking about in the Civil Service was a disturbance caused by the attitude of the Government towards civil servants. When the Government put the Public Services (Temporary) Economies Act into operation, that was one of its results. There might not be so much running out of the Civil Service or attempting to run out of the Civil Service on the part of officers applying for discharge from the Civil Service if these officers had not in their minds the unjust treatment of prominent civil servants in the course of the last few years; and if they had not themselves in mind for the last four or five years the political partisanship that has been to a large extent operating in the Civil Service.

Mr. Davin: Information on William Davin  Zoom on William Davin  Were they following a lead?

General Mulcahy: Information on Richard James Mulcahy  Zoom on Richard James Mulcahy  If the Deputy knows anything about the Civil Service, I should say that no person is so gifted as he is for showing the hidden hand and he ought to know something about it. It is for these reasons that I think the Minister's tone in introducing the Bill might have been softened a bit and he might have addressed himself to the Civil Service as a national institution so that it should be outside Party and outside politics.

I think I ought to say with regard to the introduction of this measure here, that the people trying to get out of the Civil Service are doing so, on [288] the grounds of the unrest caused in the minds of civil servants by the policy of the Government. I think it was a brazen act on the part of the Minister after what the Public Economies Act has cost the taxpayer to say that it is to protect the taxpayer now that he is bringing in this measure. The Minister would save the taxpayer very much money if he took up a different attitude with regard to the civil servants. A properly attuned Civil Service would feel that it was a national institution. If the attitude of the Minister towards the Civil Service had been different, he would have saved the country many thousands of pounds. His present attitude is likely to cost the taxpayer something in addition to the losses they have borne under the Public Economies Act.

Mr. Norton: Information on William Norton  Zoom on William Norton  There is one section of this Bill to which I wish to draw attention. Section 5 says:

Nothing in this Act shall apply to or affect any transferred officer who made, within six months after the coming into operation of the Constitution, a claim for compensation in consequence of the coming into operation of the Constitution, or any transferred officer who made at any time a claim for such compensation which was heard and determined by the Board before the 26th day of October, 1938.

As the Minister indicated, when the decision in what was known as the Hegarty case was promulgated by the Civil Service Compensation Board, a declaration of policy was issued by the Government: that indicated that the Government proposed, with the approval of the British Government, to introduce legislation the effect of which would be to prevent any person retiring under the new Constitution where his application was submitted within six months of the 18th August last. While it now reaffirms that, it says that other persons will be let out on the grounds in the Hegarty case provided they submitted an application before the 26th of October.

I understand that between the date of the Hegarty decision and the 26th [289] of October, a number of persons submitted applications for compensation, grounded on the same facts as those submitted by Mr. Hegarty in support of his application. I understand that of those who submitted such applications only one case was heard and determined by the Board before the 26th of October, although, from my inquiries in the matter, I am assured that a number of persons who did submit such applications did so before the date on which the officer whose case was heard actually submitted his application.

Since the Hegarty decision was made known, one civil servant named Hughes submitted an application on the same grounds as Mr. Hegarty submitted his. I understand that a number of other persons also submitted applications, but that the Hughes application is the only one dealt with before the 26th of October, and that on and before the 26th of October the Minister for Finance had in his possession—certainly they were in official custody—applications from other persons variously estimated to run between 25 and 40, and that these applications were held up and not referred to the Board. This date—the 26th of October—was put in in order to catch these people in the net. I want to know on what grounds he referred one application to the Board to deal with before the 26th of October, and held up the others that had been received before the 26th of October.

In this Bill it seems to me there is revealed a curious inconsistency in Governmental procedure. One suspects there was a good deal of tortuous manipulation behind the framing of this Bill when a situation of that kind is allowed to arise. How many applications were received by the Minister's Department after the decision in the Hegarty case was announced by the Compensation Board? How many of these cases were referred to the Board? On what date were these applications received from the various applicants? Did any of the applicants submit an application prior to the application submitted by Mr. Hughes, and if they did, why was Mr. Hughes' application allowed to go to the Board while other applications were held [290] back sufficiently long to make them nugatory under the provisions of this Bill? That is information which, I think, we ought to have when being asked to consider a Bill in the terms of Section 5 of this Bill.

Mr. Costello: Information on John Aloysius Costello  Zoom on John Aloysius Costello  The information which the Minister gave to-day to Deputy General Mulcahy makes it perfectly clear that the problem that is intended to be dealt with by this Bill is of very small proportions indeed from the point of view of the taxpayer. So far from the Government being presented with a very serious financial embarrassment, as a result of the decision of the Civil Service Compensation Board in the Hegarty case, it is quite apparent that very few civil servants had made up their minds to take advantage of the decision in that case. Only 40 people, I understand, have, in fact, made application to take advantage of that decision. Those 40 people made their application before the introduction of this Bill, and I should like to deal with the position they find themselves in now, as a result of the introduction of the Bill, following the lines adumbrated by Deputy Norton a few moments ago, when I come to make a few closing remarks.

Before I deal with that specific problem and the justice that should be meted out to those people, I should like to express a certain amount of amused astonishment at the expressions used by the Minister in connection with the effect of the Constitution. He repeated with the delight with which he always repeats a phrase to which he becomes attached, that this was a purely legalistic and notional discharge. That phrase rolled trippingly off the Minister's tongue, and he obviously delighted in that expression. It gave me a certain measure of delight, too, but of quite a different character—not quite a phonetic delight, or even a rhetorical delight. I got a certain amount of amusement in considering the dilemma in which the Government find themselves owing to the Hegarty decision and the operation of the Constitution. If this discharge that was effected by the Constitution is a purely notional discharge, there has been in fact really [291] no change of employer at all, again to use the expression made use of by the Minister. He said that there had been a change of employer, but only a notional discharge. If we still live, so to speak, under the same old régime as that under which we lived before the Constitution, the discharge is notional, but if something fundamental, as we were told and as the people were told, was to be effected by this great Constitution, there has been, in truth and in fact and in law, a change of employer. But if the Minister is right in his expression that it is a purely notional discharge, that it is only a purely notional change of employer and the State which was in existence before this great Constitution came into being is practically identically the same as the State which came into being as a result of this Constitution, I wonder would the Minister and his followers down the country have said that it was merely a notional discharge, or change of employer, if this Constitution which came into operation some months ago declared a republic and brought about a republican form of government? Would Article 10 then have operated, and would there have been merely a notional and legalistic discharge in that set of facts?

I think nobody would contend for a moment that there had not been a fundamental change of employer and a real discharge from the Government of Saorstát Eireann, even though the Republic of Ireland had re-employed the people; but, merely because we have the Government of Éire employing these civil servants, it is merely a notional change of employment. Consequently, I take a considerable amount of, shall we say, legalistic delight in seeing the dilemma in which the Government find themselves in arguing this case. Arguing the Hegarty case, as I was privileged to do, I did take a considerable amount of delight in seeing the very considerable difficulties in which the very learned and efficient senior counsel who appeared for the Minister before the Board found themselves in arguing the case. We found ourselves in an [292] anomalous position as counsel. I found myself in the position, as advocate, of arguing that a great change had taken place by virtue of the Constitution, and the Minister's advisers were forced to make the case, in order to win the Hegarty decision, that really no change had taken place at all, so that the Minister will forgive me if I got a certain amount of amusement out of the Hegarty case and out of his speech here to-night.

We do not intend to oppose this Bill, provided we get the measure of justice for those people who have made their applications, if I may use an incorrect expression, prior to the introduction of this Bill. I personally had in mind a second condition for support of this Bill, that the Minister would give an undertaking that the privileges and rights which transferred officers and civil servants enjoy by virtue of Article 10 of the Treaty and the Act of 1929 should not be interfered with by this Bill or by the Constitution. The Minister has, I think, in effect, given that assurance. The Prime Minister was warned by me and others who spoke during the Constitution debate of what the effect of the Constitution was going to be on the rights of transferred officers under Article 10 of the Treaty and the Act of 1929. We were told, not in that connection but in another connection which, I suppose, will have been applied to us already, that we did not know what we were talking about when we warned the Prime Minister, then the President of the Executive Council, that he was going to be faced with claims under Article 10 of the Treaty. He was quite satisfied that everything in the garden was lovely, and then he found that his legal information on that point was not quite correct, and now he decides to bring in a Bill to change that law. So long as the law suits the Minister and the Government, it is all right, but if it does not suit them, we must change it. I do not think the Minister for Finance, on this occasion, at all events, whatever he might have done last June and July, will be in a position to accuse Deputy Norton and myself and those whom we represent and those who are associated with us [293] of endeavouring to make political capital out of our advocacy of the rights of civil servants.

Mr. Corry: Information on Martin John Corry  Zoom on Martin John Corry  You paid for it.

Mr. Costello: Information on John Aloysius Costello  Zoom on John Aloysius Costello  Deputy Corry need not talk, or I shall tell him a few home truths. The Minister for Finance accused us of making political capital out of the Civil Service on the last occasion. I reiterate here that the attitude I have taken in reference to the Civil Service in past years is precisely the same as that which I am taking on this Bill. I am merely asking for justice, equity and fair play for them and I ask on this Bill for justice, equity and fair play for the Civil Service. A suitable period, nearly 12 months, has now elapsed since Mr. Hegarty made his application to retire under Article 10. I think it is very nearly 12 months since he made up his mind to clear out under the provisions of the Constitution which had then not become law. If it did become law, he intended to go. Forty people only have intimated their intention of going and of those 40, only two are being allowed out, one who gave his name to the decision, Mr. Hegarty, and the other, the gentleman referred to by Deputy Norton, Mr. Hughes. Numbers of these applications, I understand, were in fact with the Minister before the case was actually heard by the Compensation Board in the case of Mr. Hughes, and, in fact, before Mr. Hughes intimated his intention of taking advantage of the decision in Hegarty's case.

It is just as well that the public should know that Mr. Hughes' original application to retire was not following the decision in the Hegarty case, but on the ground of worsened conditions entirely apart from the Hegarty case. He made application subsequently to have referred to the Compensation Board his claim to retire following the decision in the Hegarty case, and the board, of course, had no option in that set of facts—when the Minister did refer that further claim to the board— but to follow their previous decision. Mr. Hughes' application to take advantage of the Hegarty case was made long subsequent to the majority, or certainly a number of the people [294] who wished to retire, having regard to the decision of the board in the Hegarty case. I think I am right in saying that the Minister and his advisers or legal representatives were actually threatened with mandamus proceedings on behalf of some of the people calling upon him to refer their claims to the board. The fact that mandamus proceedings were not taken—and there would have been no answer to these mandamus proceedings in court had they been taken— was due merely to the fact that both the civil servants involved and their legal advisers were unwilling to drag this matter into the courts, in the belief that they might get the very barest measure of justice from the Minister to which they were entitled, namely, a very early reference of their case to the board. The mandamus proceedings, as I have said, would have been unanswerable. There would have been no answer to them had they been brought up by these people, but now they find themselves committed by this Bill to the deprivation of what were, in fact, vested rights. I spoke already of making application to retire, but legally and really that is incorrect because these people, in effect, were discharged once the new Government came into being, and it only remained for the board to assess the amount of compensation to which these people were entitled, if that were a matter in dispute, as it probably would not be in the case of these 40 people concerned. The Minister, however, apparently did not take the view that these people had a right to go straightway, but what he did was to conform to the unvarying traditions of the Ministry of Finance, and that was to delay and postpone the matter. Evidently, they sat upon the question until the last possible moment, and then this Bill was introduced in order to deprive these people of their rights.

Now, there is a further category of those people who have actually applied. Many of the 40 people concerned were in the position where their cases were actually referred to the board for decision, and it was only a question of the convenience of the board which prevented their cases [295] being heard before this Bill was introduced, and having their position copper-fastened in the same way as in the case of Mr. Hughes. We would be prepared to give this Bill to the Minister if he will accede to the request that those people, whose applications had been made already to have their cases transferred to the board, or who otherwise intimated their intention of taking the benefit of the Hegarty decision, should get the benefit of that decision and not be deprived, by reason of this Bill of their actual rights. That is what we ask, and I think it is the barest justice. I think that equity would require that the transferred officers concerned should be entitled to a reasonable time within which to make up their minds as to whether or not they would take advantage of the Hegarty decision. However, I do not say that we want even that, but I do say that the minimum that should be granted is that those people, who had intimated their intention to retire in consequence of the Hegarty case, should be given their rights which, undoubtedly, they had before this Bill was introduced, and that the scope of Section 4 of the Bill should be amended accordingly. If the Minister gives an assurance to that effect, and that he will introduce an amendment on the Committee Stage of the Bill to deal with the matter, we shall be prepared to give him the Bill; but if not, I have to tell the Minister that we shall be disposed to take all the steps we can take in order to oppose this measure.

Mr. McEntee: Information on Seán MacEntee  Zoom on Seán MacEntee  Perhaps, Sir, I should begin by dealing with the more contentious elements in this debate, and accordingly I shall take, firstly, the first speaker on the Opposition side of the House. If ever there was an example of a mountain being made out of a molehill, we had it in Deputy Mulcahy's speech to-night. With an exaggerated emphasis upon my misdemeanours with regard to the civil servants and my attitude, generally, towards them, in that connection, he painted the blackest picture possible of the alleged doleful circumstances that afflicted civil servants in this [296] country. He said, in effect, that, due to the persecution, as I might almost say of the Civil Service by this Government, the civil servants of this country were in such a state that the moment they saw a chance to get out of the Service they rushed, like a herd in a panic, to get through the gate.

Now, what does it all amount to? Out of 9,000 civil servants in the employment of this Government, 40 individuals who, either one way or the other, may have other interests to serve, have tried to avail of the loophole which was opened to them by the passing of the new Constitution, to get out of the Civil Service under enhanced terms and conditions of pension—40 out of 9,000. It is upon that slender and, I might almost say, illusive fact that Deputy Mulcahy based his indictment here to-night of the Government in general and the Minister for Finance in particular with regard to this matter of the Civil Service. I think that, from the figures that the Deputy himself cited, it can be shown that the overwhelming mass of the civil servants or public servants of this country are well satisfied with the treatment they have got under this Government, that all of them are satisfied that they get justice and that, so far from political partisanship being the passport to promotion, as Deputy Mulcahy says, what does secure promotion in the Civil Service is zeal in the public service and capacity in that service.

Deputy Mulcahy made the wide and sweeping statement that political partisanship is the passport to promotion in the Civil Service to-day. Since we came into office we have made very many important appointments to all classes of posts in the Civil Service, and I should like the Deputy to be just, and to support the very serious charge he has made, by citing any cases in which he would allege that political partisanship, and not ability and capacity, has been the determining factor in those appointments or promotions. Again, in order to show how false and misleading the Deputy's statements have been, I have only got to refer to the information with which I supplied him to-day. According to [297] him there was not anybody above the rank of a higher executive officer who tried to get out of the Service upon the basis of the Hegarty decision. I think he said that there were three higher executive officers—and that is the class which, with the grades above it, might be affected if there were political favouritism in the public service—who were anxious to leave the Service. In other words, out of all that very large and very important class there are only three officers, according to the figures I gave to the Deputy and according to the statement he made here in this House, who are anxious to leave the Service. I do not want to go into individual cases, but almost all of these men are men who are still in middle life, still with opportunities of employment offering outside the Civil Service —some of them might have remained no doubt—but here they saw a chance of going out upon enhanced terms, with ten years' added service, with enhanced pensions, with increased lump sum allowances, and with the possibility, as we have seen here only the other day in the case of one of the men who actually did retire, of getting lucrative positions elsewhere. I should have said that it was more self-interest, merely a desire to advance their own interests in a way in which they could not be advanced in the Civil Service because, after all, the opportunities for promotion in the Civil Service are limited, particularly at the top; it was, as I say, more likely, a desire to improve their own position, to serve their own interests that caused those men to leave the Service, than being driven out by any vindictive action on the part of the Government. I resent very much the allegation which the Deputy levelled against us, because I think that if he himself would survey the appointments which have been made by this Government he could not say that in any particular instance political partisanship was the avenue to promotion. Men who served our predecessors have been promoted under this Government. There is no person who served the preceeding Government who has not been fairly considered for promotion when that promotion opened to him. I do not want to particularise, [298] but the Deputy must know of cases of people about whom, for one reason or another, it might have been thought— perhaps because of the way in which they were closely identified and associated with events prior to 1923, and that sort of thing—by some people outside that they would not receive fair play or justice at our hands. I defy the Deputy to produce a single instance in which any person has been victimised because he served our predecessors loyally. All that we have looked for from any civil servant is that he serve the Government of the day loyally and with his whole heart. Wherever that has been done, the person who has shown that zeal in the public service, has shown that he is capable of filling the vacancy when a chance of promotion offers, has been treated fairly and justly.

Deputy Norton mentioned the matter of Mr. Hughes. I think that Deputy Costello has dealt with that case. The position was this: that Mr. Hughes had applied to retire upon other grounds than those of discharge from the Government of Saorstát Eireann. I think that the date had been appointed for the hearing of his application to retire on those grounds when he came along with his subsequent application to retire upon the grounds of discharge. Apparently the Article X Tribunal had been assembled to hear the first case, and naturally when one part of his claim to retire had gone to the board the other part of the claim automatically went to the board also. When the case came before the Article X Board, Mr. Hughes did not press any of the grounds upon which he had originally applied to be permitted to retire, but relied solely upon the Hegarty case, and the decision was given accordingly in his favour upon the same grounds as it was given in the Hegarty case.

Mr. Norton: Information on William Norton  Zoom on William Norton  Would the Minister allow me to ask him a question? Is it not true that Mr. Hughes' second application had to be referred to the board by the Minister? Did the Minister refer the second application to the board, and did he do so while he had other applications in his possession [299] and did not refer the other applications?

Mr. MacEntee: Information on Seán MacEntee  Zoom on Seán MacEntee  I did, in the case of Mr. Hughes. I did it because I was advised that the second application might be made before the Board, and that it was as well to let the application as a whole go to the Board. I accepted that point of view and I allowed the application to go as a whole to the board and not to have it tried in parts.

Mr. Davin: Information on William Davin  Zoom on William Davin  Is the Minister suggesting that Deputy Hughes' first application was connected with the position which he subsequently secured, because I think that is not correct, to be fair to Mr. Hughes.

Mr. MacEntee: Information on Seán MacEntee  Zoom on Seán MacEntee  I am not prepared to go so far as to say that Mr. Hughes, when he applied, had in mind the particular position which he subsequently secured, but I am merely instancing this fact that immediately after he had retired Mr. Hughes secured this position, and that I would be simply foolish if I did not think that before Mr. Hughes applied to retire he had some such position in his mind's eye. I do not like discussing Mr. Hughes here in this way, but since the matter has been raised I think the Deputy will remember that there was a very brief interval between the decision in Mr. Hughes' case and the appearance in the Press of the statement that he had been appointed to a particular position in the service of a Civil Service organisation in Great Britain.

Mr. Davin: Information on William Davin  Zoom on William Davin  The only point I want to make is that at the time of submitting his first application there was no question of his applying for or getting the position which he has now secured.

Mr. MacEntee: Information on Seán MacEntee  Zoom on Seán MacEntee  The Deputy cannot expect me to agree to that, because I do not know what was in Mr. Hughes' mind at any time in regard to this. I have merely instanced this fact here, that within a few days after the determination of his claim to retire by Article X one of the transferred officers received what I presume, and what I hope, is a lucrative [300] appointment in the service of a Civil Service organisation in Great Britain I merely instanced that fact to show that, after all, we could not assume that every one of the 40 persons who were retiring were retiring simply because they had been ill-treated by the Minister for Finance; that some of them had perhaps other axes to grind, and if they had—well, it is only ordinary normal human nature, and I for one, would not blame them.

Deputy Costello, in the opening part of his speech, I think rather tried to ring the changes upon a phrase which I used. Of course, I would say that in order that one should ring the changes successfully, there has to be a certain sleight of mind, quickness of mind and ambiguity of metaphor. I said that there had been legalistic and notional discharge from the Government of Saorstát Eireann. I said that there had been a change of employer, but that there had been no actual discharge from employment. From that Deputy Costello proceeded to argue here in the House that I had said there had only been a notional change of employer. On the contrary, there had been both a notional and an actual change: the notion had been realised, as a concrete fact. The notion of a change of employer had been realised in fact when Saorstát Eireann ceased to exist and the new State of Éire took its place. That is what the Article X Tribunal found. It found that upon the coming into operation of the Constitution of Éire, the Government of Saorstát Eireann ceased to exist, but it also found that, though the Government of Saorstát Eireann as employer had ceased to exist, Mr. Hegarty was not thereby discharged from his office as Assistant Inspector of National Health Insurance. There had been a change of employer, and I presume it was argued that since the employer had ceased to exist, the deceased employer must have discharged the employee, but there was no actual discharge from his employment. It does not follow, because there has been no actual discharge from employment, that, as Deputy Costello tried to argue, there has been no change of employer. In fact, all [301] of us know that there may be a change of employer but no discharge from employment. Not merely may there be a change of employer, but there may be a change of job, and yet a man may not cease to be employed. When a firm changes hands, and a person who is in the employment continues at work and is paid for it, although perhaps not doing the same thing as he did under the old firm and under the old management, well, obviously there has been a change of employer and there may have been a change of employment, but the man has not lost his job. He continues as an employee. His employment has been continuous. Therefore, it does not necessarily follow that, because, as I stated, there has been only a legalistic and notional discharge, that there has not been a change of employer. There was, in fact. That is what the Article X Board found—that the Government of Saorstát Eireann had been superseded, had been replaced, had been ousted, if you like, by the Government of Éire; that a new State had come into being, and that the former constitutional régime had ceased completely. That is what the court found, and, mind you, that is what Deputy Costello was arguing before the Article X Tribunal. As I said, he found himself in this position, that he was arguing that a great and fundamental change had taken place in the employer, and the Article X Board agreed with Deputy Costello, as many intelligent people would no doubt, in regard to many questions agree with Deputy Costello when Deputy Costello was arguing as a lawyer or as a competent layman, and not as a politician in opposition.

The position in which we find ourselves then is that when Deputy Costello is looking at the law and the Constitution outside this House, and is looking at it in the interests of his clients, he agrees with the Government and takes the view of the Constitution which the Government takes in this House and outside this House. In fact, we have Deputy Costello as a dual personality. He comes in here and, as a politician in opposition, argues that there has been no change, that the Constitution has made no [302] change, but when he comes before a judicial tribunal, and has to argue the case, he takes the Government point of view and agrees that there has been a great and fundamental change in the employer. He agrees with us that Saorstát Eireann as we knew it has ceased to exist and that the new State of Éire has taken its place. Having got Deputy Costello to agree on that, we hope that the Government and every Party in this House will be at one in their attitude towards the Constitution and in agreement on the great and fundamental change which has taken place in the constitutional position in this country.

Mr. Cosgrave: Information on William T. Cosgrave  Zoom on William T. Cosgrave  But you will not pay for it. You baulk at that.

Mr. Norton: Information on William Norton  Zoom on William Norton  That is like the speeches delivered in June last.

Mr. Cosgrave: Information on William T. Cosgrave  Zoom on William T. Cosgrave  You know it is humbug; that is why you will not pay.

Mr. MacEntee: Information on Seán MacEntee  Zoom on Seán MacEntee  Of course I baulk at paying for it.

Mr. Cosgrave: Information on William T. Cosgrave  Zoom on William T. Cosgrave  If it were worth it you would pay.

Mr. MacEntee: Information on Seán MacEntee  Zoom on Seán MacEntee  Article X was designed to protect those officers who were transferred from the British service to the service of the Government of Saorstát Eireann against victimisation, against wrongful discharge, against deliberate alteration, to their detriment, of their conditions of service. This Article X Tribunal has found that there was no discharge; that Mr. Hegarty was not thereby discharged from his office as assistant inspector of National Health Insurance, and there has been no alteration to their detriment in the conditions of service of any civil servant, neither Mr. Hegarty nor Mr. Hughes, nor any one of the other 38 people who have applied on this constitutional ground.

Mr. Cosgrave: Information on William T. Cosgrave  Zoom on William T. Cosgrave  The Minister is getting deeper into it.

Mr. MacEntee: Information on Seán MacEntee  Zoom on Seán MacEntee  Their conditions of service remain unaltered. Their actual employment has been continuous. Why, therefore, should we ask the taxpayers of this country to pay, because such payment is not going to [303] come out of the pocket of the Minister for Finance, I can assure the Deputy, nor out of the pockets of the members of the Government collectively, nor out of the pockets of the members of the Dáil or of the Seanad or the whole three estates of the realm combined? We are not going to pay the enhanced pensions which are going to be paid if we allow 40 people to walk out with ten added years of pensionable service, and with, as I have said, increased lump sum allowances. It is going to have to be paid by the taxpayers of this country, and therefore, as the Deputy has said quite correctly, I bauk at the idea of asking the country to pay that amount.

Mind you, I am prepared to take into consideration the fact that this constitutional door was opened. The courts have decided in favour of two men. There are 38 others whose cases are probably on all fours. There are ten others whose cases, I think, were in before Mr. Hughes' case; there may be more. I will confess that because I have been anxious to do justice meticulously to the transferred officers, and to deal with them fairly, I have been very worried as to what my attitude should be in regard to those applications. After a great deal of consideration I put down this date, the 26th day of October. If the House feels, as I am quite prepared to admit, that there may be some hardship, and that it is invidious to make distinctions between the thirty-eight applications which were in and which were not heard and the two which were in and had the good fortune, if you like, to be heard, if the House feels that on grounds of broad equity as between each of those individuals and the two others whose applications have been allowed, it would be invidious to make a distinction, I am quite prepared to accept the decision and the wishes of the House; but, as I say, I do baulk at it, and it has been one of the difficulties which I have had in dealing with this Bill, because, as I say none of them has been worsened so far as actual conditions of service go. I do know that there is something to be said for not coercing into service men [304] who are anxious to get out at the present time. As I say, it is a matter for the House. If I thought that the House could give me all the stages of this Bill next week so that I might dispose of it quickly, I would be quite prepared—if that is the general feeling—in order to clear up all this matter, to introduce an amendment which would meet the views that have been expressed by the Opposition and, I think, by the Leader of the Labour Party. However, as I say, I am in the hands of the House in that regard.

Question put and agreed to.

Ordered: That the Committee Stage be taken on Wednesday, 9th November.


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