Oireachtas (Allowances to Members) and Ministerial and Parliamentary Offices (Amendment) Bill, 1973 (Certified Money Bill) : Committee and Final Stages.
Thursday, 2 August 1973
Seanad Eireann Debate
Mr. Yeats: There are one or two matters arising out of the Parliamentary Secretary's speech on this question of retrospection. He mentioned that the Employer/Labour Conference did not recommend that there ought to be retrospection. That is so but they told the Government that in their view retrospection would be acceptable under the national pay agreement and the 12th round. It is open to the Government to introduce retrospection. They went further than that. They laid out certain increases which in their view could take place on certain dates under these awards and which would be in accordance with their general provisions. As I mentioned in my speech, they laid out, for example, that a Deputy could get a figure like £3,023 on 1st January, 1972, and Senators accordingly. There were various steps laid down. They certainly did not tell the Government that this is what they ought to do but they told the Government that if they did this it would be fully in accordance with the national pay agreement and the 12th round. That is the point I wish to make on the question of retrospection. It is in accordance with these wage rounds and, what is more to the point, it is in accordance with the kind of treatment  that every other section of the working population got under various awards. We alone are left without any element of retrospection. The purely technical matter as to whether or not there was a recommendation is not important. It could have been done and it should have been done in accordance with the views of the Employer/Labour Conference.
In regard to the comparison with the salaries of civil servants, the Parliamentary Secretary said that, after all, the higher civil servants had their salaries fixed by the Devlin committee, the same people who fixed our salaries, that there was no real grievance since the Devlin committee dealt with both matters. I believe I am right in saying that the group of civil servants whom I quoted, the higher executive officers, are a very large group and, so far as I know, they had nothing whatever to do with Devlin. My understanding is, and I may be wrong, that for many years their salaries have been governed by arbitration. It was the civil servants in higher positions than higher executive officers, for example, those in the administrative grades, who were covered by Devlin. I am not particularly interested in whether Devlin did this or Devlin did that. The basic factor that should be of importance is the comparison with the cost of living rise since 1st August, 1968. On that basis we have been given 35 per cent in the case of Senators and 36 per cent in the case of Deputies to meet a cost of living rise of very nearly 50 per cent. The Cathaoirleach has been given the magnificent rise of around 12 per cent to deal with the same rise in living costs.
Devlin reported in early July, 1972. Nearly 13 months have elapsed since then. In that time there has been a cost of living rise of about 12 per cent. We are all that much worse off than last year. Yet no allowance has been made for this in the salaries now being awarded. It is not a question of technicalities as to who reported, who did this, who did that, who made what recommendation. Since five years ago yesterday all of us in this and the other House, Government Ministers, officers of the House, the Cathaoirleach, the  Leas-Chathaoirleach, the Ceann Comhairle, the Leas-Cheann Comhairle have been downgraded. They are that much less well off than they were five years ago yesterday.
For example, a Deputy if he was just to be left in the same situation in relation to the cost of living as he was five years ago should have had another £300 given in this award. A Senator should have had a couple of hundred pounds more. The point is that we have all been downgraded not merely in relation to the cost of living but also in relation to the much higher increases that almost every other section of the population has had, going in most cases far beyond the technical increase in the cost of living.
Mr. Lenihan: I welcome the idea which follows on the procedure initiated by the previous Government in regard to a judge's salary of introducing an order of procedure in regard to the increase of parliamentary salaries. We decided on this, as the Government, some years ago because of the unseemly wrangle which used arose in the Dáil whenever legislation concerning judges' salaries was introduced. Are we on section 4 still or section 5?
This recommendation is a straightforward one and one with which Senators should agree. The issue involved is fundamental. Under subsection (3), when the Government have made an order fixing the salaries of Deputies  and Senators and of the Cathaoirleach and Leas-Chathaoirleach, the Dáil is given the opportunity of discussing the order and putting down a resolution disapproving of the draft if they so see fit. The Seanad, I presume through inadvertence, is not mentioned. There are two main reasons why we should not accept this. First, there is the simple issue limited to this particular matter: that if our salaries and those of the Cathaoirleach and Leas-Chathaoirleach are being discussed it seems an extraordinary situation that they are open to discussion in the other House and not in this House but there is another and far more important issue and that is the general matter of principle, that where orders of any kind are to be laid before either House of the Oireachtas as a general rule they should be laid before both Houses. I cannot see any justification whatever for omitting Seanad Éireann from this list. I hope, therefore, that the Parliamentary Secretary will accept this amendment.
The same issue arises under section 11 but, in the absence of an undertaking that the Minister was going to accept the amendment, I did not think it necessary to circulate one on it, too, but it can be very easily brought up on Report Stage if the need arises. I would be interested to hear from the Parliamentary Secretary whether he proposes to accept this recommendation and if not, why not.
Mrs. Robinson: I should like to support Senator Yeats in this amendment. He has made the argument very well that it is customary, especially when the orders are laid in draft so that the Parliament has a greater role to play, that either of the Houses may annul such orders. In other words, either House may raise them for debate, comment on them, and subsequently annul them if it is the view of the House that they should be annulled. In a case where the interests of the Seanad are very much concerned and where it would be possible to envisage, for example, that the salaries of Members of the Dáil alone were being raised, the Members of the Seanad might ask: what about us? But they would have no power to consider  the draft order. Or, secondly, where the salaries of Senators alone were being raised or varied, why should the Seanad be deprived of the possibility of considering an order to that effect when in draft. This is a deprivation of a proper function for the Seanad in the matter. It is very difficult to see why the Seanad is excluded from the possibility in the normal way of having the order laid in draft before either the Dáil or the Seanad, allowing the Seanad to raise the matter and to move for the annulment of the order within the 21 days provided. On the grounds of previous practice in this matter, as Senator Yeats pointed out, and on the grounds of a very genuine interest and concern on behalf of the Seanad, this amendment ought to be accepted. I appreciate that we are in a sense talking in a very academic environment since the other House has recessed for the summer but the matter is one which is sufficiently important for the Minister to consider when the Dáil reconvenes—and there is talk about an early reconvening. I support this amendment.
Mr. E. Ryan: There is a very important matter of principle involved and not only in relation to this Bill. It is something which could have ramifications in a very wide way. There has been a tendency in recent years for Governments to introduce certain measures by order rather than by way of a Bill going through both Houses. The reason given—sometimes it is perfectly valid—is that even though a Bill is not being introduced in both Houses to enact whatever legislation is necessary, an order will be laid before the Houses and that either or both of the Houses can raise the matter and discuss it and say whether or not they approve. This is the first time that I am aware of where this principle has been introduced but where only one House is given the right to agree or disagree with what is done. Certainly, in this and in any other case, if this principle were to extend to other situations in the future and measures, which would normally be introduced by Bill and be capable of being discussed by both Houses, were being introduced by way of order—and that order was only  being laid before one House—then this would be quite unacceptable and clearly infringing the rights of this House. It would be a measure against which this House would have to fight very strongly. Consequently, whereas it may not be all that important in this instance, the principle involved is very important and one which the Seanad could not possibly allow to pass without protesting in the strongest possible manner.
Mr. M.J. O'Higgins: I should like to say a few words on this matter. Most Members of the Seanad would appreciate the points which have been made by Senators Yeats, Robinson and Ryan. They would feel that it is proper that those points should be raised on this Bill in the Seanad. However, we have to go a little deeper into the matter. When we do this we will see that it is not a question of discarding previous practice. Senator Robinson seemed to be under the impression that it was. A moment's thought will show us that this is not so. There has never been any practice of increasing parliamentary allowances by order.
Mr. M.J. O'Higgins: I am coming to that. There is a distinction between that in relation to any other Bill and in relation to this particular Bill. The first point I want to make is that there is no precedent in relation to this Bill because the system did not obtain up to this, that the allowances of office holders were increased by order. It was necessary to bring in legislation so that the increases could be sanctioned. Consequently there is no question of a departure from an established practice. There was never such a practice of bringing either orders or draft orders before the Houses of the Oireachtas in this matter.
There is fairly general provision in legislation dealing with ministerial orders either to lay them before both Houses of the Oireachtas or, if they are being introduced in draft form, to allow power to either House of the  Oireachtas to introduce an annulment motion. Before I come to the distinction between that in general legislation and in this Bill, I should like to say that with the whole-hearted support of Senator Robinson, Senator Lenihan and Senator Ryan that practice was very seriously breached only last week in this House on the Bill dealing with the European Economic Community orders. I was the only Senator in the House who objected to the provision introduced. This House solemnly, with the blessing of Senators Lenihan, Ryan and Robinson, passed over from this House to a Special Committee the sole right of initiating annulment proceedings in relation to those orders, which may and probably will be of greater significance and importance not only to Members of this House but to the members of the public——
Mr. M.J. O'Higgins: ——than any order which might be made under this, but the Members of the other House were also deprived of what one would have regarded as their entitlement as individual Deputies to commence proceedings for the annulment of those orders. We passed over to the other House the sole authority to initiate that proceeding to a Committee of 26 of the two Houses. Therefore, if there is any departure from precedent it was done in this House last week with the blessing of Senators Ryan, Lenihan and Robinson. That is only a debating point.
Mr. M.J. O'Higgins: I think it is a good one. The essential difference between this Bill and ordinary legislation is that this is a Certified Money Bill and there is, as all Senators are aware, a constitutional difference between the procedure in the case of Certified Money Bills and ordinary legislation. It is provided in the Constitution that Money Bills can only be initiated in Dáil Éireann. It is also provided in the Constitution at least by implication, although there is possibly a distinction without any great difference  in words, that the Seanad cannot amend Money Bills. We can make recommendations with regard to them but cannot amend them. If we do make recommendations it is then provided in the Constitution that we must within a period of 21 days return the Bill to the Dáil and if we do not do that it is deemed to have been passed in its original form by both Dáil and Seanad notwithstanding our recommendations. The same applies if having made recommendations the Dáil does not accept them, so there is a fundamental and constitutional difference between a Money Bill and general legislation with regard to the status of this House and the rights of Members in relation to it.
What orders can the Minister make under section 5 of this Bill? He can only make an order increasing Members' allowances and that is the order objected to by Senator Yeats. It is unlikely he would get general support in the House for an effort to annul an order increasing Members' allowances. You cannot increase it beyond what is allowed by the Minister and if you had the right to annul the order and succeeded in doing so the net effect is that you do not even get the increase proposed by the Minister.
All that is involved here is a question of an order which can only increase allowances. This amendment is fighting for the right to tell the Minister that he should not increase the allowances as he proposes. Neither in this House nor in the other House can an amendment be accepted. Senator Yeats, as an ex-Cathaoirleach, will be the first to agree with me when I state an amendment cannot be moved which would have the affect of increasing the charge on the Exchequer, so there is no question of being able to amend a draft order in such a way as to increase the increases which have been proposed by the Minister. As is stated in section 5 of the Bill, there is no machinery for amending the draft order which the Minister brings before the Dáil. The Dáil either accepts the increases the Minister proposes to them or they reject them and it is a matter then for the Minister whether or not he will make another order. There is no  question of the Dáil or the Seanad having any authority whatsoever to amend these orders.
If the object of this exercise is to tie the hands of the Minister, it would not tie them effectively to insist on these matters being debated in the Seanad. If the object of the exercise is to express in some sense a spirit of opposition to the idea of parliamentary allowances being increased it would appear this amendment is in sharp contradiction to the sentiments expressed by Senator Yeats on section 4. If Senators feel that allowances should not be increased, each of us has his own remedy in his own hands as regards that. We need not accept the increases, and this draft order can only increase.
I appreciate that it is important that Senators should watch the privileges and powers of this House in relation to legislation and if the Minister were to consider amending this by future legislation, I would not be in opposition to such a move. I do not use this as an argument of any importance, as I have always objected to it being used at this stage in a Seanad session, but it is known to all of us that the Dáil has risen for the Recess. That being so, if a recommendation were to be made by this House on this Bill two things could happen: either the matter could be delayed until the Dáil comes back or the Dáil could be recalled. From a practical point of view, it seems most unlikely that the Dáil would be recalled. Whether Senator Yeats and his colleagues feel that the other course is one that would recommend itself generally—namely, that the matter should in the final analysis be deferred until October—is something on which I cannot adjudicate. I said earlier that so far as I personally am concerned I do not mind whether the Seanad deals with this Bill this side of the Recess or not.
Mr. Yeats: Since coming to sit in the seat he occupies at present Senator O'Higgins has acquired a certain brand of political innocence that I would never have attributed to him in the days he used to sit on this side of the House. Taking his last point  first, I hesitate to pronounce on such a matter in case I might dislocate whatever reputation I may or may not hold as an ex-Cathaoirleach. I think I am right in saying that, if a recommendation is passed in this House, and is ignored by the other House, in 14 days, or some relatively short period like that, the Bill becomes law in the absence of any action by the Dáil and that the question of deferring it or delaying it does not arise.
Mr. Yeats: On that point, I would urge Senator O'Higgins and other Senators opposite simply to make the gesture. There will be a vote on this recommendation. I would suggest that they all vote for it because they know perfectly well that it is a recommendation that ought to be supported. They are not that long over on that side of the House that they cannot appreciate that. I would suggest, on that basis, that it could be passed with no harm done to anyone. It would at least have made the point that we feel should be made. The Bill would in due course become law.
Taking some of the other points that Senator O'Higgins made, what he said in effect was: “Why bother to have it discussed by Seanad Éireann since after all they could not amend the Government order in any event.” I take it the suggestion is that the Government have a majority anyway and would object to any such effort to overturn the draft and, therefore, why bother.
Mr. Yeats: There was a strong indication to that end. On the same basis, why have this subsection in at all? Do we not all know that, if the Dáil discuss it, in practice no resolution disproving of it will be passed? Surely the whole point of the parliamentary process is that Members of Parliament in a democratic country have the opportunity of discussing matters brought before them by the Government. Democratic Governments  very often defer to the views they hear in these debates. This is the whole basis of the parliamentary process.
I do not visualise anyone putting down a resolution disapproving of the draft with a view to having it overturned because there is a parliamentary means of discussing the situation. What is happening here is that if we pass this subsection as it stands never again will we in this House have an opportunity of discussing these matters. Senator O'Higgins made the point, which the Minister very often made, that after all when this matter comes up for discussion again in another amending Bill we might be able to do something about it and so on.
Let us be clear that there will be no amending Bill. This is the last time that this matter will be dealt with by legislation. From now on it will be dealt with by Government order. No question therefore arises of any kind of an amending Bill and no opportunity will arise under which this matter can be remedied. We are taking part in the last debate that will ever take place in this House on these matters unless this recommendation is accepted, and later accepted by the Dáil. I agree with Senator O'Higgins that that seems an unlikely situation.
Another point I should like to make on Senator O'Higgins's speech concerns his rather curious interpretation of what happened in this House and the other House on the Bill setting up the Committee to deal with EEC secondary legislation. As I understood it, we had a situation that a Committee was set up with representatives on it from both the Dáil and Seanad. That Committee will consider all these matters and in particular will consider Irish Government regulations incorporating into Irish law these various directives and so on we get from the EEC. That Committee can recommend to both Houses of the Oireachtas that they should be accepted or rejected.
Each House of the Oireachtas can discuss these matters. There is even a provision whereby, should the Seanad be in recess for more than ten days,  that one-third of the membership of the Seanad can ask the Cathaoirleach to call us together to discuss these matters. In so far as it is a precedent it is a very, very strong precedent because only last week, against the opposition of Senator O'Higgins, we created a very strong precedent in favour of giving ourselves the kind of power which we are seeking in this recommendation.
Mrs. Robinson: I failed to follow a good deal of Senator O'Higgins's reasoning, partly, I think, because it was not exactly relevant to the amendment which had been put forward by Senator Yeats and which I am supporting. I think his comments on the European Communities Bill referred to quite a different mechanism. Senator Yeats said that this provision, which would allow the Dáil only to consider a draft order is not a departure from existing practice because this will be a new procedure: it will be the first time that the question of raising salaries will be provided for in this way. This is precisely the underlying importance of it, and I think Senator Yeats made his point very well when he said that this is the last opportunity the Seanad will have to discuss and debate the question of the raising of Members' salaries. Let us not be under any illusion about that. That is a very substantial departure from practice in the real sense.
There is also the departure from practice which I referred to earlier. When orders are made in draft by Ministers they are laid before both Houses. I thoroughly agree with the analysis given by Senator Yeats—in case anybody is under the illusion that the Seanad can without Government support annul an order of this sort—that this is not to annul the order but to provide the trigger for a debate. This means that the Seanad has authority, by putting down a motion to annul the draft order, to debate the question of whether the salaries should be raised, by how much, how far retrospectively, what relationship should exist between Dáil and Seanad salaries and Government salaries, et cetera. We at least have the jurisdiction to do that. We  are now depriving ourselves of that jurisdiction.
I fail to understand the lecture on Money Bills which we were given by Senator O'Higgins—because in section 5 we are not concerned with an amendment of legislation: we are concerned with a draft order which has no legal validity unless after a period of 21 days it has not been annulled. This is the legal significance. Therefore, the Seanad is not amending a Money Bill. This is a quite different procedure. I think it is open to the Legislature to write in, even to a Money Bill, a mechanism which provides for a draft order which has no legal validity after a period of time but which will be made a valid order if it has not been annulled, and that the Seanad can play a part in this process. The reason why the Seanad must be allowed to play a part in this process is the obvious one that it is the only way in which the Seanad can be allowed to have jurisdiction to debate this whole question of the raising of salaries.
On the Second Reading of the Bill I made the point that I regretted the fact that both in this section and section 11 no criteria were set down as to how the Government would exercise the power to increase salaries by means of a draft order. It is important in the absence of specific criteria and because on the face of the section we give an unfettered discretion to the Government, that this matter should be within the jurisdiction of both Houses which subsequently, through the means of tabling a motion annulling the order, have an opportunity to debate it as we are debating today. I think the debate in the Seanad today has been a very useful one. Most Senators must regret that this will be our last opportunity to debate an increase in salaries in this way.
Mr. M.J. O'Higgins: I have said already I recognise the validity of having this raised here. It would be a pity if Senators Robinson and Yeats, by over-painting the picture, were to militate against the case which they themselves are making. There is no question, of course, of this being the  last opportunity for the Seanad to discuss Members' allowances. Senator Robinson in particular has shown a degree of expertise in the Seanad for triggering off—I think that was her expression, debates by way of motions. If Senators look at the Order Paper at the moment, they will see there are ten motions all of which in due course will be discussed. To seven of them the name of Senator Robinson is appended.
There is no need at all for people to throw up their hands in horror and say this is the last opportunity we will have of saying what we should be paid. That is not so. It is open to any Senator to put down a motion to discuss the question of Members' allowances here any time they like.
Mr. M.J. O'Higgins: It is also open to Senator Yeats, or any other Senator for that matter—and again Senator Robinson has some degree of expertise and experience in this—to put down a Bill, to amend and to have this matter——
Mr. M.J. O'Higgins: You cannot initiate a Money Bill or discuss anything by that means in the Seanad. The Senator is correct. It cannot be done by way of a Money Bill. One would have to fall back on a motion. The principal point here is that the only discussion that could take place, if it were permitted, would be to annul an order in précis. Senator Yeats has made it quite clear that a motion to annul would not really be serious—it would be merely for the purpose of discussion. We are back again to the question of discussion. That can be done by a motion. It certainly is not the last opportunity we will ever have of discussing it. It might be better that it should be done in a way which would have a direct influence in the sense that the Minister for Finance would be here which would, presumably, be the case if a draft order were to be discussed.
The only suggestion I can make at this stage is that Senators might like  the Parliamentary Secretary to carry back the message to the Minister that there were strong views on this and, perhaps, he would have a look at it with a view to considering whether a further Bill should be introduced here. ing with it. I do not think there is any question of a breach of precedent here. The normal procedure as far as money orders are concerned is that they come before the Dáil alone, not the Seanad. I do not pretend to be in a position to quote precedent on that but I believe this is the practice that has been followed here with regard to orders dealing with money matters, increases of that sort in various fields. I do not think there is any question of precedent being breached.
The only thing of importance is whether the privileges and powers of the Seanad are being in any way diminished or offended or breached by this provision. Personally, I should like to see the situation where the question of discussing parliamentary allowances would not come before the Seanad in any shape or form, good, bad or indifferent.
Dr. Browne: I should like to support the recommendation because I think there is a principle involved here which, with all his expertise, Senator O'Higgins has not completely succeeded in obfuscating with his particularly skilled presentation of the case he put forward, and most of the points raised by him. Senator O'Higgins said there is no precedent being breached here. That is probably true but a precedent is being created here. That is the important worry that people like Senators Yeats and Robinson both have. Senator Robinson I am sure will not feel blinded and deafened by the weight of the flattery which Senator O'Higgins was kind enough to pay to her to the extent that she will not point out to him that she has used her skills to a great degree in the past by using the various devices which she has been clever enough to find out, but why on earth should she sit idly by when she sees one of them which has been the most useful to all of us—in the Dáil I have used it on many occasions—this right to discuss an order, being undermined?  It is a wonderful device. For people who want to question Government action without feeling that they have any right to deter the Government, in formal terms, then any opportunity that a Senator might have of bringing a matter formally before this House for discussion, no matter what the outcome, seems to me to honour the one important principle for existence of the Seanad.
Over the years I have fought very hard against the Seanad having powers. I am glad it has no great powers beyond the right to debate, the right to discuss measures which the Dáil, in its wisdom, has passed from time to time and then for the collective wisdom of all the talents of the Seanad to be brought back to the Dáil and then let them do as they like thereafter. But at least this very important right to put a point of view before the Seanad, to attempt to influence the Dáil should be very carefully guarded and very carefully preserved. In fact, the only purpose that I personally would have in being in the Seanad is the right to comment from time to time.
The Parliamentary Secretary, in his excellent and most interesting closing speech—I take this opportunity of welcoming him to his position and many years of success in it— pointed out what he called, in loyalty to his colleagues in the Cabinet, the alleged blunder—but it appears that there was a blunder of considerable proportions, about £35,000 or was it £20,000? It was quite a blunder anyway which was later remedied peacefully by discussion in a civilised, mature way. A blunder did take place and it was possible that a blunder of that kind might not have been discovered in the Dáil. But there was a very powerful vested interest involved in the blunder and therefore it was discovered in the Dáil.
Blunders can be made by cabinets. But they compounded the blunder by making another omission or minor blunder—minor in so far as there is not the same powerful vested interest fighting for its recognition here—in relation to the unfortunate people about  whom Deputy Kennedy spoke very feelingly: the former Members of the Oireachtas who are out now on rather miserable pensions because of the absurdly small allowances paid to Deputies in the early years. These people have been ignored. There are two points, the second of which is not worth discussing because it cannot be included in this Bill.
We then have the final, rather school-masterish, frightening, in terrorem exhortation from the Leader of the House, Senator M.J. O'Higgins, who tells us we will not get paid until Christmas if he does not get his Bill. This is a sort of collective punishment which he is imposing on the Seanad and I do not think it is quite fair.
There is a good reason why we should try to preserve this right to have matters of this kind brought before us. There was the curious debate between four Senators—Senators Robinson, Lenihan, Yeats and M.J. O'Higgins—on the question of whether they were right or not to give to a Joint Committee certain powers in relation to the EEC. They do not appear to be able to make up their minds whether this very important right to debate here has been handed over to a sub-committee of the Dáil and Seanad. This, again, is part of the general anaesthetising effect which the whole EEC has had upon both Houses of the Oireachtas: the right to debate, which is implicit in the whole idea of democracy, has been completely curtailed.
I recollect that in one of the first Bills we dealt with here, where millions of pounds were spent, when I asked the Minister did he know where it was going, he admitted that he did not. I admit that was an unusual set of circumstances in which a collection of items had to be brought before the Seanad rapidly, but this method seems to me to have been in action last week in the discussion on the Joint Committee. We have in some way reduced the powers of the Seanad by handing it over to a Committee rather than having this as the Committee and having our debate carried on in the usual way. If it is possible for this amendment to be accepted, it should be.
Mr. M.J. O'Higgins: Just to clear one point, Senator Browne took up a phrase I used that there was no precedent being breached. He based his case on his own phrase that there was a precedent being created. It is relevant in this connection to say that I appear to be correct and Senator Browne with his own particular expertise appears to be wrong. I have here the Courts (Supplemental Provisions) (Amendment No. 2) Act, 1968. This is an Act which dealt with a matter which many people might regard in the public sense as being of greater importance than allowances to Senators and Deputies. This dealt with the payments to be made to the judges and district justices. This provided:
The Government may whenever they so think fit by order increase the sums payable by way of remuneration to the several judges of the Supreme Court, the High Court and the Circuit Court and the several justices of the District Court. An order under this subsection may, if so expressed, have retrospective effect.
Where an order is proposed to be made under this subsection a draft thereof shall be laid before Dáil Éireann and if a Resolution disapproving of the draft is passed by Dáil Éireann within the next subsequent 21 days on which it has sat after the draft is laid before it the order shall not be made.
There is the particular precedent which was followed in the drafting of section 5 of this Bill. This is a precedent dealing with the payment of the Judiciary. It is contained in an Act which was passed by the previous Government so that whatever might be said about the question of not being able to discuss Seanad allowances except by the exercise, if I may use the word again, of the expertise of Senators in putting down motions we have been precluded for the last seven years by an Act of the previous Government from discussing draft orders in relation to payments of members of the Judiciary.
Mr. Yeats: Taking the first point made by Senator M.J. O'Higgins in his earlier intervention, I do not think he quite appreciated the full power of his suggestion that, after all, we need not worry and we could always discuss the matters by putting down a motion. Leaving aside the obvious and wellknown problems of getting motions debated, what he is saying in effect is— I know he did not mean it in that way but it is the meaning of what he said —why bother having legislation coming out of the Seanad at all? Why bother with Finance Bills, Bills about the EEC or Bills about anything else? After all, if anyone feels like discussing them they can always put down a motion.
Mr. Yeats: One has no power on legislation in Opposition either unless you can persuade some Minister to amend it. In the case of an order of this kind it is perfectly obvious Ministers will stick by it. The Government of the day will have a majority and that will be that. It is the parliamentary process. One hopes to be able to persuade Ministers to see what we in Opposition think to be reasonable.
With regard to the interesting piece of legislation that Senator O'Higgins has dug up or been handed dating back to 1968, he let a very interesting cat out of the bag. It shows quite clearly what I personally had suspected and at which I hinted when I first spoke on this amendment: that those who drafted this Bill nearly forgot that there was a Seanad.
We all know the way parliamentary draftsmen go about dealing with legislation. Wherever possible, they like to be able to dredge up some  subsection, like that read out by Senator O'Higgins, from a previous Act which seems to fit the bill. This is the precedent, here we are, down it goes. No problem. Nobody will get into any trouble. It has been done before and, therefore, it can be done again.
In adopting the measure this time, and it is quite clear that Senator O'Higgins is right in saying where it came from, they forgot the simple little matter that these orders which are being taken away from us under this Bill relate to our own salaries and those of the Cathaoirleach and Leas-Chathaoirleach, not those of district justices. We all know that, as between the Dáil and the Seanad on strictly  money matters, the Dáil is the superior House. The Dáil under the Constitution, and in practice, is given a status which we do not enjoy and do not endeavour to enjoy.
The point here which completely upsets this so-called precedent as an adequate precedent is the fact that our own salaries are being discussed. Whoever dug that handy subsection out of the Act in 1968 merely forgot this point. It is absolutely clear, from what Senator O'Higgins has said, the cat that he set out of the bag, that it was simply an oversight in this Bill. It is an oversight which should be remedied.
Brennan, John J.
Browne, Noel C.
Browne, Patrick (Fad).
Eachthéirn, Cáit Uí.
Yeats, Michael B.
Higgins, Miichael D.
Íveagh, The Earl of
|Lyons, Michael Dalgan.
McCartin, John Joseph.
McGrath, Patrick W.
O'Higgins, Michael J.
Russell, George Edward.
Sanfey, James W.
Tellers: Tá, Senators Hanafin and W. Ryan; Níl, Senators Sanfey and Harte.
Recommendation declared lost.
Question proposed: “That section 5 stand part of the Bill.”
Mr. Lenihna: I welcome strongly the putting of this matter under in order procedure from now on. We have had sufficient evidence over the past two weeks in the debate on this and we have had evidence over the years in regard to, at times very unseemly, debates on judicial salaries to warrant this procedure in regard to judicial salaries and Members' remuneration and allowances. The benefit of the order procedure, which the former Government introduced first in regard to judicial salaries, is now incorporated here. This is something we would have done in regard to Members' allowances and its incorporation  in the section means we will in future have just one debate on the matter.
The order, which should be laid before both Houses, and that was the purpose of Senator Yeats' amendment, can be debated within 28 days. We will have one straightforward debate. We will not have the long tedious debates on various Stages in both Houses. We will state our views, vote on it and that will be the end of the matter. This sort of thing has been a time-wasting matter over the years in both Houses. It is important that this new procedure be adopted so that, in future, when engaged in debate we do not appear to be engaged in an unseemly wrangle over sections and subsections on various Stages over long periods conveying a totally wrong impression of the matter to the public. We should be seen to be dealing with these fundamental matters of the salaries of the Members of the Oireachtas and members of the judiciary in a responsible and clear-sighted manner.
Mr. Yeats: I should like to refer to subsection (3) (a) (1) which states: “The Government may whenever they so think fit by order increase, et cetera.” The operative words here are “whenever they so think fit” and the question arises: how often are the Government going to think fit? They have suggested in the debate in the other House that they would make an order altering the salaries of the people concerned whenever there was a new national wage agreement. This concept of a national wage agreement is a relatively new one. We hope it will become a regular feature of our economy and that, every couple of years, instead of having these free-for-all wage rounds which took place over so many years, there will be an orderly process of amendment of wages by a single national wage round. I can see no problem in that regard if one can assume that the Government will, in such an event, make an order following approximately the percentage increases in national wages with regard to the salaries and allowances of Senators,  Deputies, Ministers, Parliamentary Secretaries, et cetera.
Human nature being what it is, we must expect that on at least some occasions in years to come there will not be any national wage award but a process of free-for-all bargaining such as we had over so many years.
I should like to be sure that in such a case the Government will not just hang around and do nothing, and wait until some time when there might be some orderly wage round again, but that they will make it their business at fixed intervals—say a maximum interval of two years—to consider this matter and deal with it rather than allow these very long delays to arise. Such delays can only mean either that very large rises are given, thereby coming into conflict with the more ignorant sections of public opinion and the newspapers, or, as is happening now, that rises are given which, while also antagonising public opinion, do not come near to bringing us up to the amount required to cover the increase in the cost of living. I hope the Government will make it their business to see that, at the outside, not more than an interval of two years will elapse between the making of these various orders.
Mr. M.J. O'Higgins: I particularly welcome the contribution by Senator Lenihan. It was realistic and expressed the viewpoint of most Senators, and also the general public in relation to this matter. With regard to the point made by Senator Yeats, I think all of us would appreciate that there is a lot of merit in it, but we should hesitate in asking the Minister to give an assurance which would tie him to any particular timetable.
The Parliamentary Secretary, in introducing the Second Reading of the Bill, spelled out the Minister's intention in this regard when he said:
In a situation where Members' remuneration is affected by national pay agreements it is clearly desirable that the delays which take place between the decision to introduce legislation and the final passing of the legislation should be  avoided. There is no good reason why increases in remuneration of Members of the Oireachtas should be subject to obstacles which are not placed in the way of any other section of the community.
That is the spirit in which section 5 has been included in the Bill. It is important to note the point I made earlier in dealing with the recommendation proposed by Senator Yeats that the Minister can only increase the allowances. If the situation were to arise—it does not seem very likely —where the cost of living were to go down——
Mr. Garrett: Not under this Government anyway.
Mr. M.J. O'Higgins: ——it would create the kind of furore that Senator Lenihan had in mind if the Minister, in pursuance of an undertaking to revise the allowances every two years, came in with a proposal, the only proposal that he could bring in being a proposal to increase the allowances. The indication given by the Minister in relation to this provision is well within the spirit of what was recommended by Senator Yeats and I would be prepared to accept that we should leave it at that.
Mr. Garrett: I am delighted to hear the Leader of the House saying, in a jocose manner: “If the cost of living were to go down.” We were promised that before the last general election in the Government's 14-point campaign.
Mr. M.J. O'Higgins: We can get into that debate.
Mr. Garrett: We can get into that debate any time the Senator likes. I just want to give an example. From next Monday morning the price of cars will go up by £50.
An Leas-Chathaoirleach: This remark is not relevant to section 5 of the Bill. Let us continue on the section, please.
Mr. Garrett: Senator O'Higgins said that our cost of living was going  to decrease. I want to pull him up that. I have made my point. The cost of living will increase by a substantial amount.
Question put and agreed to.
Sections 6 and 7 agreed to.
Question proposed: “That section 8 stand part of the Bill.”
Mr. Yeats: This section seems to me to be an example of remarkably sloppy drafting. Paragraph (b), which relates to the allowance to be paid to the Attorney General, provides:
... in case a Member of the Oireachtas holds the office—the sum of £4,430.
This, originally, as it appeared in the other House provided:
... in case a member of Dáil Éireann holds the office ...
This has lead to a curious situation, which was pointed out to the Minister in the Dáil, where paragraph (a) fixes a certain salary for a person who is not a Member of the Oireachtas and paragraph (b) fixes the salary for a Member of the Dáil. In the unlikely event of a Member of the Seanad becoming Attorney General there is no salary fixed at all. Since the relevant section of the Principal Act is repealed by this section, there is no way of paying him any kind of a salary. This was pointed out in the Dáil and, apparently, with a hurried stroke of the pen this amendment was made. Instead of “a Member of Dáil Éireann” being mentioned it now reads “a Member of the Oireachtas”.
Let us consider what the result of this is. Let us consider a Senator who becomes Attorney General. He is paid £4,430. On top of that he has his Seanad salary under this Bill of £2,023. This gives him a total of £6,453, whereas a person who is not a Member of the Oireachtas is paid £7,213. In other words, because he has laid upon himself the additional duties of being a Senator, he is to be paid some £750 less than he would be paid if he became Attorney General without becoming  a Member of either House of the Oireachtas. I am not putting this forward as an important point. At the moment there is no immediate likelihood of any Member of the Seanad becoming Attorney General but, nevertheless, this will be an Act of the Oireachtas and this seems to be an extraordinarily slipshod way of writing a section. Is there no explanation as to how it is framed in this way?
Mr. Kenny: If you like I will give an explanation. The Attorney General's salary is fixed under section 4 of the Principal Act. New rates were fixed in 1947, 1960, 1964 and 1968. The present figure of £5,500 was fixed by section 6 of the 1968 amendment Act which was substituted for section 4 of the Principal Act. The increased salary will be £7,213 when the Attorney General is not a Member of the Oireachtas and £4,430 when he is a Member of the Oireachtas.
An Attorney General who is a Member of either House of the Oireachtas will thus be in exactly the same position as a Minister who is a Member of either House. Under the provisions of this Bill an Attorney General who is not a member of either House will be paid £760 a year more than either a Minister or an Attorney General who is a Member of the Seanad.
It was originally intended to make no provision to cover the position of an Attorney General who was a Member of the Seanad because of the anomaly that would be created if an Attorney General Senator were to have a lesser rate than an Attorney General who was not a Member of the Oireachtas. However, the view was expressed in the debate in the Dáil that an even greater anomaly would arise if a Member of the Seanad were to be appointed Attorney General and no rate of salary were prescribed for his post. In deference to that view, the provisions of this section were amended by the substitution of “the Oireachtas” in paragraph (b) for “Dáil Éireann”.
If an Attorney General is a Member of Dáil Éireann he gets the fixed salary plus the Deputy's salary. If he is a Member of the Seanad he gets the fixed salary plus the Senatorial  salary which is less than the TD's salary. That is the reason why the Attorney General who is not a Member of either House of the Oireachtas gets more than an Attorney General who is a Member of the Seanad.
Mr. McGlinchey: This is very strange. If the present Attorney General became Taoiseach and he had to appoint a new Attorney General and if he decided to appoint Senator O'Higgins or Senator Alexis FitzGerald—two excellent men for the position—it would pay them to resign from the Seanad. If they chose to remain as Senators they would be paid £760 less. That is very strange. I am concerned about them in case they should be appointed.
Mr. Kenny: May I ask Senator McGlinchey why does a Deputy get more than a Senator. Compare the Attorney General who is a Deputy with the Attorney General who is a Senator. Why should the person whose allowance is coupled with his salary get the same as an Attorney General whose salary is coupled with his fixed sum?
Mr. M.D. Higgins: I very much sympathise with those Senators who see defects in drafting. Legislation should be properly drafted. Members should not be embarrassed by having to divide on inaccurate drafting. However, now we are having confessions of penury from all sides, we are to have Attorney Generals who are solicitors poorer than Attorney Generals who are also TDs, who are in turn worse off than Attorney Generals who are neither Members of the Seanad nor of Dáil Éireann. Perhaps there could be a very honest commitment from every Member of the Oireachtas to declare our interests. This is something I referred to on an earlier occasion. Let us all—Deputies and Senators—publish our incomes and where we are getting them from. Then we will see who is in penury and who is not. We could have a very realistic discussion then on penury and on honesty and on who is in hardship and who is not.
Mr. Yeats: I am not at all clear what the meaning of that last contribution  is. What penury has to do with it? I am interested in a curious, not to say eccentric, situation. It appears that if a Senator becomes an Attorney General, he may gain £760 a year by retiring from the Seanad. I do not know what that has to do with penury. It seems to me to be eccentric, no matter what the origin may have been in the Bill.
It occurs to me that one of the reasons why all this problem arose was perhaps that on this occasion, because the Attorney General was a Member of Dáil Éireann it was decided to give him two salaries, one as a Member of Dáil Éireann and one as Attorney General. Before I go any further on this point there is one piece of information which I should be very glad to have if the Parliamentary Secretary could give it to me. Is this a new idea or was this done on previous occasions when the Attorney General of the day was a Member of the Dáil? This has happened several times. Was he paid his full salary as Attorney General and his Dáil salary?
Mr. Garrett: A Leas-Chathaoirleach, I am very sorry you are in the Chair at this present time. Even at this stage the Oireachtas discriminates in jobs between men and women, despite all the talk about “Women's Lib”. Anybody eligible for the position of Attorney General, whether he comes from the Seanad or the Dáil, is entitled to command the salary attached to that position.
Mr. Yeats: Hear, hear.
Mr. Garrett: This applies whether his salary in the Seanad is £2,023 a year as from 1st July last—we have not got our increase yet but we hope to get it—or his salary from the Dáil is £3,216. Whether he comes from the Seanad or the Dáil, he is entitled to the same salary. He is serving Ireland, he is filling the position that he has been appointed to by the Government of the day and he is entitled to the salary. This Seanad should put a recommendation to Dáil Éireann to that effect. I do not think it has happened yet that an Attorney General was appointed from the Seanad; but  with the number of legal men we have in the Seanad it is quite possible that at some future date it could happen. We have had Senators appointed Ministers. They are entitled to the same remuneration as if they were Members of Dáil Éireann. We are equally as important as Dáil Éireann. Maybe in certain circumstances we are more important than the Dáil.
Mr. J. Fitzgerald: The Senator is right, and we should be getting more than £2,023.
Mr. Garrett: I think we should be getting more than £2,023. In the last Seanad I represented a part of the constituency where there was no Deputy. Thank God that position has changed. I am not sorry. My opposite number, Senator O'Toole, is now a Senator in part of a constituency where there is no TD.
A man appointed to the job of Attorney General, no matter where he comes from, should have a set salary. It should be the same salary whether he comes from the Seanad, the Dáil or outside. His Dáil or Seanad salary should not be taken into consideration at all. There should be no such thing as a different salary for a Minister appointed from Seanad Éireann. The only difference is that he does not go through the Lobby. The salary for the Attorney General should be a fixed figure. That is my contention, and I think I am not far wrong. If one man can do a job another man can do it equally well.
Mr. Kenny: May I clarify for Senator Yeats the point he raised? It is rather long drawn out, but I will deal with it. Section 3 of the Principal Act deals with Deputies' and Senators' allowances. The rates were fixed by subsection (1) and (2) respectively of that section. Each time new rates were fixed in 1947, 1960, 1964 and 1968 new subsections (1) and (2) were substituted for the original sections of the Principal Act. That is the Act of 1938. The same is now being done on this occasion. The remaining provisions of section 3 of the Principal Act provided that the salary of a parliamentary office holder, such as a minister, would be deemed to include  his Deputy's or senatorial allowance; and that the Deputy's or Senator's allowance or the allowance part of a parliamentary office holder's salary would be exempt from income tax.
These provisions were abolished by the 1960 Amendment Act except in so far as the first provision continued to apply to the Attorney General. It followed that a parliamentary office holder other than the Attorney General could get both his salary as an office holder and his allowance as a Deputy or Senator. But worst of all, affecting every one of us, was the provision that a Deputy or a Senator's allowance and his salary if he is also a parliamentary office holder were no longer exempt from income tax.
A specific provision was inserted in the Act of 1960 to cover the case of the Attorney General. If he was a Deputy or Senator his salary was deemed to include his allowance. The provision relating to the Attorney General is no being deleted. Provision is made in section 8 of this Bill for the case of an Attorney General (1) who is not a Member of the Oireachtas; and (2) who is a Member of the Oireachtas. In the latter case the salary paid to the Attorney General will be the same as that payable to a Minister, namely £4,430 and his Deputy's or senatorial allowance will be payable in addition. That clarifies the point that if an Attorney General is a Member of Dáil Éireann he gets £4,430 plus his Deputy's allowance. If he is a Member of Seanad Éireann he gets £4,430 plus the senatorial allowance. Does that clarify the position for Senator Yeats?
Mr. Garrett: It does not clarify the position as far as I am concerned. The Attorney General, whether he comes from the Seanad or the Dáil, does the same job; and there are many Members of the present Seanad who are probably equally as capable as is the Attorney General.
We have many men here with legal training. They have established themselves throughout the country as talented members of the legal profession. Why should a person just  because he is a Member of the Seanad have to suffer a loss of pay if he is appointed as Attorney General? There should be a fixed salary for the Attorney General regardless of his Deputy's or Senator's allowances. The Parliamentary Secretary may laugh.
Mr. Kenny: I am not laughing.
Mr. Garrett: If this was being done in relation to the teaching profession he might not laugh half as much.
Mr. McGlinchey: While the Parliamentary Secretary has attempted to clarify the position, to me at any rate it sounds just as absurd now as it did before the clarification. I am not comparing the allowances paid to a Deputy and a Senator. I am comparing the salary paid to a person who is not a Member of the Oireachtas and to a Senator who may be Attorney General. The Taoiseach may have before him the names of two people for the post of Attorney General—Mr. X, Senior Counsel, and say, Senator Alexis FitzGerald.
Mr. Alexis FitzGerald: I am not a barrister.
Mr. McGlinchey: The Senator is still a solicitor. Mr. X would be paid £760 more than Senator Alexis FitzGerald or any other Member of the House. Is that right?
Mr. Kenny: Legally it is right. according to law it is right, and that is the law we must go by. There is a fixed sum for the Attorney General. The Attorney General's emoluments include his Deputy's or Senator's salary. Add the fixed sum to either of these salaries and then you will find the Attorney General's remuneration.
Mr. M.J. O'Higgins: Senator McGlinchey's point is dealing with the case of an Attorney General who is not a Member as compared with the Attorney General (a) who is a Member of the Dáil, or (b) who is a Member of the Seanad. If he is a Member of the Dáil he still gets more by virtue of the increased Dáil allowance than he would if he were not a Member. The point being made is——
Mr. Garrett: Senator M.J. O'Higgins will agree that——
An Leas-Chathaoirleach: Will Senator Garrett please not interrupt the Senator while he is speaking?
Mr. M.J. O'Higgins: Hold the solemn thought for a minute and you will see whether I agree or not. Senator McGlinchey's point seems to me to be a valid one: that the Attorney General who is not a Member of the Seanad would get more in salary as Attorney General than the Attorney General who is a Member of the Seanad would get when you combine the Attorney General's salary as a member of the Oireachtas plus his Seanad allowance. There would be a gap there. The person who is not a Member of the Seanad is in a more advantageous position.
Senator McGlinchey is quite right that that is the factual position. I do not understand fully why that should be except to this extent that it was made clear in the Parliamentary Secretary's remarks at the beginning in relation to the present position that you have an Attorney General who has given a commitment not to engage in private practice. Presumably that would be a precedent to be desired by Members of the House generally and I daresay would be followed by Attorney Generals who are Members of the House.
As against that you are dealing with an Attorney General outside the House who may or may not. If he decides not to continue in private practice he has no supplement such as an Attorney General who is a Member of the House has, in relation to the Dáil that is substantial. In relation to the Seanad it will drop. It is a matter for himself whether in those circumstances he would accept the post.
It seems to me that the ideal solution —I do not expect tht it will recommend itself to the Minister for Finance —would be to have Deputies' and Senators' allowances the same.
Mr. Yeats: I find myself basically in agreement with much of what Senator Garrett has been saying. The reason for this curious anomaly which  has arisen seems to be that the attempt is being made to equate the salary of the Attorney General to that of a Minister by including the Dáil salary. As Senator Garrett has pointed out, a sum should be fixed for the Attorney General, sufficient to encourage the right person to take up the job. If he happens to be a Deputy or a Senator, then that allowance should be added to his Attorney General salary. The position since 1968 was that the Attorney General was paid £5,500. If he was a Dáil Deputy he got another £2,500 bringing him up to £8,000. All right, this sum gave him a higher salary than a Minister. Unfortunately, there are plenty of people in the country who get a higher salary than Ministers. What has happened here and what has caused all the trouble is that somebody somewhere came to the conclusion that it was wrong that the Attorney General should be paid more than a Minister, and attempted to reshuffle all the figures to avoid this taking place. I cannot see the real justice of this.
If an Attorney General is worth £7,213, then that is the correct figure for him to receive. The fact that he has all the additional burden of being a Dáil Deputy is a reason why he is entitled to get another £3,400-odd in addition to his Attorney General's salary. This will give him a lot more than a Minister, but there are large numbers of people who are paid more than a Minister so I do not see why an Attorney General should not also particularly since the sort of people who become Attorney Generals, in very many cases, are earning salaries at the bar which are already vastly in advance of anything that a Minister could possibly get. This is what has caused the trouble. Far be it from me to urge the Government to pay an Attorney General more. The Attorney General is able to look after himself. Nonetheless, it is cheeseparing which has caused all the trouble.
Mr. Garrett: I am more than surprised that there are not more members of the Labour Party to back me up in the attitude I have taken. I am very sorry that some of the ladies are not here to back me up on discrimination.  This Government have only made a mess of this. They are incompetent and have been guilty of discrimination. I cannot understand why there should not be a fixed salary for the Attorney General. I cannot understand why there should be discrimination in regard to sex or personality.
An Leas-Chathaoirleach: There is no reference to sex in section 8. I think you have made that point quite clear.
Mr. Garrett: There is a reference made to the remuneration of the Attorney General. I take it when I refer to that it cannot be ruled out of order.
An Leas-Chathaoirleach: Correct.
Mr. Garrett: Whether it is women's liberation or anything else I do not think I can be ruled out of order on that. I know you have played a role in women's lib, but now let us deal with man's lib.
An Leas-Chathaoirleach: I must ask the Senator to refrain from making personal remarks to the Chair.
Mr. Garrett: I maintain that there should be a salary fixed for an Attorney General, apart from any other emoluments he has. I do not care from what party he comes, when he is appointed he should have a fixed salary. I do not think his emoluments from the Dáil or Seanad should be taken into account. We have in Seanad Éireann solicitors, junior and senior counsel, who are as highly qualified as those in Dáil Éireann. If any of these gentlemen are picked to fill the Attorney General's position will they suffer the stigma that they were not sufficiently qualified to obtain the top salary? This is another sign of incompetence on the part of the Minister for Finance who has changed this Act.
Mr. J. Fitzgerald: The Senator is not showing much competence himself.
Mr. M.J. O'Higgins: He is doing all right.
Mr. Garrett: I have not done any harm to the Senator because he is not a solicitor and he will not become Attorney General.
An Leas-Chathaoirleach: Could we have some order? Senator Garrett on section 8, and I draw your attention to the fact that some of the points you have made three times already. I would ask you to confine your remarks to new points.
Mr. Garrett: I would ask the Government party to tell me why a member of the Seanad, if he is appointed to the position of Attorney General, has to lose £700, approximately, just because he is a Senator. I would ask the Parliamentary Secretary to clarify this point.
Mr. Kenny: To clarify the position, in the Dáil during the debate an amendment to section 8 was accepted by the Government party in deference to Deputy Colley. This is an amendment by Deputy Colley. That is why it was accepted.
Mr. McGlinchey: It was not Deputy Colley who drafted it.
Mr. Kenny: It was before him as drafted.
Mr. McGlinchey: Under section 11——
An Leas-Chathaoirleach: Section 8.
Mr. McGlinchey: Yes, but in reference to section 8, under section 11 we will have an opportunity of reviewing the matter. Would the Parliamentary Secretary bring to the notice of the Government the views we have expressed at whatever time this review may take place in the future and we will leave it at that.
Mr. Kenny: I only wish that the Minister himself was here, but I certaintly will do that.
Question put and agreed to.
Sections 9 to 18, inclusive, agreed to.
 Title agreed to.
Bill reported without recommendation, received for final consideration and passed.
Business suspended at 6.10 p.m. and resumed at 7.15 p.m.
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