Dáil Éireann - Volume 145 - 31 March, 1954
Committee on Finance. - Defence Bill, 1951—Fifth Stage (Resumed).
Question again proposed: “That the Bill do now pass.”
General MacEoin General MacEoin
General MacEoin: Very heavy work and a great deal of labour has been put into this particular measure and we have now reached this stage, which represents and advance. There are many points in the Bill that I do not like and the more one looks at them the less one likes them.
The Army Act of 1923 was a temporary measure, and it has served all the time since then, with various amendments of one kind or another. Many of these amendments are now incorporated in this Bill, together with some new proposals. I am glad that the Bill has got as far as it has got because, down through the years, one of the main points of contention between Government and Opposition, in the early days and since then, has been that there should be a permanent Army Act. I do not know whether or not this will be the permanent Army Act because I feel sure that certain amendments will have to be made to  It as time goes by. However, it is the code which will govern the Defence Forces of this country for some time.
Let us hope that it will be examined and tested in the future and then amended, if and when it is necessary to do so. The Bill leaves the House now and goes to the Seanad. I should like the Seanad to examine some of the sections, just to see what their views are, and if they feel the Bill should be amended in any respect I suggest they should do so.
During the debate on the Second Reading and on the Committee Stage, I got a slight shock when a very important member of the Government Party, in referring to the power, under Section 4, of the Government by Order to declare that a state of emergency exists, set out what, in his opinion, a state of emergency would be. I could not accept the definition of a state of emergency which he gave and it frightens me that any potential Minister would give such an interpretation of what would constitute a state of emergency. For that reason, I feel that the power given to the Government in Section 4 is somewhat extensive and likely, under certain circumstances, to contain dangers relating to the freedom and the rights of the citizen. Sub-section (4) of Section 4 reads as follows:—
“Every Order made under this section shall, as soon as may be after it is made, be laid before each House of the Oireachtas and be published in the Irish Oifigiúil.”
I do not know that that is a sufficient safeguard because, if a Government were unscrupulous or tyrannical enough to declare an emergency under circumstances such as those described by the Government Deputy to whom I have already referred, then the Government would be unscrupulous enough to see to it that a majority of the Parliament would be available to approve of the Orders. I submit that Section 4 of this Bill should receive further consideration.
The next section to which I should like to refer is Section No. 14, which reads as follows:—
 “(1) The Government may, whenever they think fit, by Order under this sub-section declare that there shall be an Inspector-General of the Defence Forces, and whenever any such Order is made and is in force there shall be an Inspector-General of the Defence Forces.
(2) The Government may by Order under this sub-section revoke any Order made under sub-section (1) of this section.
(3) The Inspector-General of the Defence Forces shall be an officer of the permanent Defence Forces and shall be appointed by, and hold office during the pleasure of, the President.
(4) The Inspector-General of the Defence Forces shall be charged with the performance of such duties as the Government may from time to time assign to him.”
I am not satisfied with that section. I thought that the position was sufficiently safeguarded by sub-section (3) which specifies that the Inspector-General shall be an officer of the permanent Defence Force and shall be appointed by, and hold office during the pleasure of, the President.
I thought that that made it positive and that there was no danger that any person other than a member of the permanent Defence Forces could be appointed Inspector-General. But, of course, I did not advert to the other section, which says that the President may appoint any person, on the advice of the Minister, to be a member of the permanent forces and that he may be commissioned. That commissioning is confined, in the first instance, to citizens of this country, and then in the next section says: “or any other person approved by the Minister”. I am only drawing attention to this fact, that under that particular section concerning the commissioning of the forces, an officer of another army could be appointed Inspector-General and all that would have to be done first would be that the Minister should recommend him or advise the President to commission him and make him a member of the permanent forces.  Having been made a member of the permanent forces and a commissioned officer, he could there and then become Inspector-General. In other words, the command of the Army would be vested automatically in him.
That provision has certainly shaken me considerably and I would like that it would be re-examined so that no Government could bring in an outsider and commission him in the permanent forces and then have him made Inspector-General next day without his having served one hour prior to that in this country. It is not confined to citizens of the State.
The section that entitles a person to become a permanent member of the Defence Forces says: “Each of the following persons shall be eligible to be appointed to be an officer of the permanent Defence Force or the reserve Defence Force, that is to say, (a) Irish citizens and (b) any other persons specially approved by the Minister”. They are eligible, and under Section 42, sub-section (1): “The President may appoint any eligible person to be an officer in the permanent Defence Force or the reserve Defence Force in any commissioned rank, and any such appointment may be without limitation as to time or may be for a specified period or be temporary”. Anyhow, he becomes a member of the Defence Force and then he is automatically eligible for appointment as Inspector General under Section 14, because Section 14 says: “The Government may, whenever they think fit, by Order under this sub-section, declare that there shall be an Inspector-General” and that he shall be a member of the permanent Defence Force. I do not like that: I am afraid of it. I feel that it is something that could have dangerous reactions in the country generally.
My next point deals with Section 46. I think that the Minister should study again the provision relating to half-pay. Half-pay was always regarded as a privilege. It was something that was to be of advantage to the officer, by which he could complete his education in some particular subject. It was, if you like, a subsidy to a certain  extent by the State for the completion of an officer's education. What I feel should be there is that the Minister may in accordance with regulations made by him, place an officer on half-pay who has made application to be put on half-pay. Only where an officer has applied to be put on half-pay should that provision operate and it should not be, as it is at the moment, a penal section, because the Minister may put an officer on half-pay and then not re-employ him at the end of 12 months. Then he is out without any further act by the Minister. There appears to be no restriction about putting an officer on half-pay. Section 46 says: “The Minister may in accordance with regulations made by him place an officer on half-pay for a period not exceeding one year”. He just puts him on it and that is the end of that.
I think we have been unduly severe and unreasonable in our approach to the question of political activity by officers, N.C.O.s and men, and I feel that particular aspect of the Bill is not a sound one. I should be glad if the Minister would have that examined again during its passage through the Seanad.
The offences against military law are very elaborate and I feel there should be an appeal to the High Court or the Court of Criminal Appeal if necessary. I think that in times of stress or emergency even officers with the best will in the world and the best intentions in the world may find their judgment considerably warped.
Captain Cowan Captain Cowan
Captain Cowan: Even our ordinary judges make mistakes in law every day of the week.
General MacEoin General MacEoin
General MacEoin: They do. There should be a civil court of appeal on these particular matters. I admit that during an emergency or during war it would be very difficult to carry that out.
I come then to the confirming authority on courts-martial. The confirming authority shall be—for a general court-martial—an officer not less than the rank of colonel. He will act under warrant from the Minister. I do not know that the Minister's  warrant will vest the colonel with the legal or administrative brains to examine with a judicial mind the proceedings of a general court-martial.
I feel that a confirming authority must have a well-trained mind to examine the proceedings of the court, to see that everything is as it should be, that no injustice has been done and that the law has been fully complied with. For that reason, no matter who the confirming authority may be or how important he may be or how great an authority he may be on law, he should have the assistance of a member of the Judge-Advocate General's staff to advise him. Of course, I will be told that he will have that, but I think it should be compulsory that he should have a member of the Judge-Advocate General's staff to advise him, and that he should have a statutory right to consult him.
As to the Army nursing service, I wonder has the Minister or have the Army authorities consulted the members of the nursing service. Are they satisfied that this is the right way to deal with the Army nursing service? Personally, I feel that the American system is a good one and should apply here; that is, that every member of the nursing staff should be a commissioned officer. They have to control and manage orderlies and other people in military hospitals, and unless they are commissioned officers, it would be impossible for them to have these orderlies or other people subject to military law properly dealt with from a disciplinary point of view. I feel that every nursing sister should be commissioned and that the nursing service should be set up as a corps just the same as any other corps in the Defence Forces.
I do not know how the members of the Army nursing service would regard that, but I feel that it would be in their own interest and in the interest of the Army generally that they should be subject to military law and discipline and should be commissioned officers with ranks established on lines similar to those of any other corps. That was brushed aside rather lightly, but the Minister  did not tell us whether the nurses were consulted. I presume the Army Medical Service were consulted and that they are the people whose views have prevailed in regard to this matter. I feel that the views of the nurses should have been ascertained. If the Minister tells me that they have been and that the nurses are satisfied with this particular line, that is all right as far as it goes. But, from the military point of view, I feel that it would tend to greater efficiency and better service generally if those in the nursing service were members of the Defence Forces with ranks equivalent to the various ranks in the Army.
A great experiment has been made in connection with this Bill by putting it through a Special Committee. I do not know that that hurried it in any way. However, it is a very large Bill and it is one which, when it goes to the Seanad, I am sure will get serious consideration because it brings a lot of people within the ambit of military law who would not otherwise come under it. I hope that it will be the basis and the ground work for successful and efficient Defence Forces which will defend this country in our hour of need if ever that arises. Let us hope that the necessity will never arise but that, if it does, the Army and naval forces will render a very good account of themselves. I wish the Bill good luck and the Defence Forces which will be governed by it.
Captain Cowan Captain Cowan
Captain Cowan: I want to say at the outset that I feel the deepest regret that I participated in the passing of a Bill for the Defence Forces such as this Bill is. I was enthusiastic about the possibility of making a good Army Bill. I devoted a considerable amount of time to a study of the Bill and to what I considered would make it a good Bill. I prepared, put down and moved in the Special Committee some hundreds of amendments that I considered were necessary and, on the Report Stage here, the great majority of more than 200 amendments that we discussed were amendments that I had drafted and put down for consideration.
The Bill which now comes up for its Final Stage takes into account very  little of the effort and very few of the amendments that I had hoped would have been accepted so that we would have an agreed Bill to which all of us would feel that we contributed something. The Bill which I had looked forward for so many years to seeing improved in the interests of the Army and of the country is now leaving this House and I feel that all my efforts to improve it have been fruitless.
The Bill is a big Bill in size; it is a serious Bill in character; and if I were to examine it in the way I should examine it at this stage and the way that perhaps my duty obliges or should oblige me to examine it I should spend many days of parliamentary time discussing it as it now stands, section by section. I do not propose to do that this evening. The efforts that I made in regard to the Bill are very clearly set out in the reports of the Special Committee, which I hope will be available in all Army libraries so that officers and soldiers will have some idea of what is in the Bill and what the Bill means and does not mean. Consequently I propose this evening to content myself with a few general observations.
From the point of view of the soldier and from the point of view of the officer his position under this Bill is worse, or will be worse, than it is under the old Bill that this measure will supplant. I say that with the deepest regret. I say that to my comrades who are still serving in the Army. I say it to my many comrades who have served in the Defence Forces since they were established—that I have failed miserably in my efforts to try to get a better Bill for the Defence Forces.
This is described as a permanent Army Act. I hope it is not a permanent Army Act. I know it is not a permanent Army Act, and I should regret very much if it were a permanent Army Act. In the course of the administration of this Act the very matters that were pointed out from time to time as being necessary to include in the Bill will be found to be necessary, and I have no doubt that Dáil Éireann will from time to time pass amendments to improve this Bill  so that in the space of some years it will be very little different to the old Bill in regard to the number of amendments that are made to it. Under the old Act we had what were known as temporary provisions, and that Act was continued in force from year to year by an annual Act, and opportunities were availed of every year to make amendments if they were considered necessary. The opportunities of making amendments annually will not now arise. The one great objection to the old Bill was that it was passed in a few hours by Dáil Éireann in 1923 on the ministerial plea then that it was only a temporary measure for a year, and it never had an opportunity of being examined by the House in regard to its details. The fact that it had to be continued in force year after year was not a defect, and the great insistence that there was by the Army and other persons for a permanent Army Bill was for a Bill that would take into account the experience that had been gained in regard to the measure over a number of years.
In many respects this is a crude Bill. I have no doubt that many officers and many soldiers will be scalded by the provisions that we have written into this measure. Not only will officers and soldiers be scalded, but members of the general public will be scalded also by the provisions that have been put into this measure affecting the ordinary citizen. If any Bill or Act of this House could be considered a civil service red tape measure this is it.
An Leas-Cheann Comhairle Cormac Breslin
An Leas-Cheann Comhairle: The Minister is responsible for the Bill and not the officials.
Captain Cowan Captain Cowan
Captain Cowan: I am describing it, Sir, in general terms as a red-tape Civil Service measure. In fact, I say that if any Bill could be called that this is it. Under this Bill military law as it will apply to the Defence Forces when the Act becomes law is set out; and military law has been defined generally as the law that governs officers and soldiers in peace and in war. This Bill certainly provides for the government of our officers and soldiers, whether they are regular Army or Reserve, both in peace and in war.
 Under this Bill, members of the Defence Forces may be punished in various ways from reprimand right up to execution. There is a whole code of law here that provides every conceivable punishment for the officer and the soldier, from the simple reprimand or fine right up to execution. Not only have we not been content with our own experience in regard to the punishment that should be imposed on our officers and soldiers; we have gone abroad across the Atlantic to find new causes for executing members of the Defence Forces in time of war. Everything in this Bill has been pushed to logical conclusions—not to conclusions based on common sense, not to conclusions based on experience but to the logical extreme of the words that are contained in the Bill.
As I say, I do not propose to examine it at this stage in the way that I had intended because at this stage I do not think it would serve any useful purpose. So far as the Dáil is concerned, the Bill has passed and it will take experience in application, experience in administration, to discover the defects that were very clearly pointed out during the course of the passage of the Bill through its many stages. This Bill applies not only to officers and soldiers, to reservists and reserve officers: it applies in a very drastic fashion to ordinary members of the public. There are provisions in the Bill which enable members of the Defence Forces to be billeted on the citizens of the State, not because of a specific provision here which says that the citizens shall be obliged to billet, but because of a section which says that the Minister may make regulations obliging the citizens to furnish billets, accommodation, transport, etc., for members of the Defence Forces. In other words, this Bill, which in the main is a Bill for the control and administration of the Defence Forces, is a Bill which gives the Minister power, in the section to which I referred, to oblige the citizens to furnish billets and food in certain circumstances for members of the Defence Forces.
I say that is a fundamental defect in the Bill at a very early stage, because  any law that applies to citizens of the country should be specifically made in this House and every citizen should know what he is obliged to furnish, and the circumstances under which he is obliged to furnish it. Instead of that, all the citizen knows is that in future he can commit an offence if he does not carry out some Order that the Minister for Defence will make governing him in the future in relation to the Defence Forces.
I do not think that is a satisfactory position. That section does not take into account the enormous progress that has been made in every country in the world in the last 50 years in regard to the provision of food and shelter for an army, or part of an army, on the march or in action against the enemy. Reading that section, one would be of the opinion or one might conceive that we were still living in the late 1880's or the early 1900's. The provision in the Bill, in the way it is in, is, I believe, an improper and unnecessary provision. It is like many other sections in the Bill that are unnecessary because of the enormous strides forward that have been made in regard to armies and defence forces in the last 50 years. When this matter was mentioned on Report, here or in the proceedings in Committee, the Minister told us he had this examined by the Defence Forces and that that was their view and, because it was their view, the Minister felt that he must put it into the Act.
I think it is an unwise thing that provisions governing the citizens of a country should be put into a Bill at the instance of the military authorities. That is a faulty conception of the relationship that should exist between the Army and the citizens of the country, and I think that Dáil Éireann, in accepting the Minister's proposal in regard to that and other similar matters in the Bill, did not take its own responsibilities to the citizens seriously enough,
The Bill gives the Minister the very widest powers to enter on land and compulsorily to acquire land; it gives him the very widest powers in regard to the use of land in the vicinity of service aerodromes and I think many  citizens will be surprised when they ascertain that this Dáil has passed a Bill which contains provisions such as those I have mentioned without appropriate safeguards. The Bill goes further in what I consider its encroachment on the domain of the citizens. It provides for the disqualification from membership of a local authority of members of the Reserve, and I consider that a very serious encroachment on the democratic constitution of this country. We are all proud of the fact that we are a democracy, governed by a Parliament elected by the people, and that our local affairs are administered by persons democratically elected by the citizens as a whole, but in a Defence Bill we provide for the disqualification from membership of a local authority of reservists who break some regulation in regard to their Reserve service.
The Bill in several of its parts makes provision for the trial of offences against the Act by citizens and I mention these matters to show that, so far as the Bill is concerned, it is a Bill of very serious significance to the citizens and not simply a Defence Bill having relation only to officers and soldiers and which consequently can be left, as the Press say so often, to a handful of Deputies in the House.
Deputy MacEoin referred to Section 4, which enables an emergency to be declared and I feel again that this is pushing certain matters to a logical conclusion and leaving out of account entirely experiences based on history and on fundamental principles of democracy. Under our Constitution, there is provision to deal with an invasion of the country; under our Constitution, there is provision for the declaration of war; but in Section 4 we provide a power which can be very dangerous in the hands of an unscrupulous person and it is the duty of a Parliament to be vigilant against giving powers that may be used against national interests to unscrupulous persons. The Minister's answer to that at the Special Committee and during the Report Stage was that if the country gets into the hands of unscrupulous  persons, it does not matter two hoots what law is there. That is an argument that can be understood but it is an argument that flies completely in the face of our own Constitution and the safeguards put deliberately into that Constitution, to prevent unscrupulous persons seizing power by force against the citizens.
There is one safeguard for the citizens. It was in the old Act and it is in this Act and that is, that a soldier is not obliged to obey an order that is unlawful. No soldier can be obliged to obey an order that is unlawful. It is that provision which enables a democratic State to maintain itself against the unscrupulous pretensions of individuals, because each member of the Army headquarters staff is bound to act in accordance with the Constitution of the country and to disobey any unlawful order given to him, whether it be given to him by the Government or by any individual member of the Government.
The citizen has a safeguard in the fact that the higher Army officers are bound to obey the Constitution and the laws of the country. The loop-hole in Section 4 is that it enables an unscrupulous Government to make a law which those senior Army officers must obey. That is the dangerous loop-hole that is there. That is the dangerous loop-hole which I requested the Minister not to put into this Bill but to delete from it. I hope the day will never come when there will be regret for putting in Section 4 into this Bill because, when one is playing in this or any other country with military forces one is playing, as it were, with fire. The Minister, in his approach to this section and to other sections, takes the line that he would not abuse that power, and in the goodness of his nature he cannot conceive of anyone else misusing it. That is the great difficulty in regard to a problem such as this. The Minister knows he would not do it and he cannot conceive of anybody else doing the things that are mentioned as being dangerous.
I want to say that I could not possibly subscribe to the view expressed here by Deputy MacEoin in regard to Section 14. I think it was far-fetched, and I think the argument was invented  to fit the general election campaign that we are all to enter into in the near future. I opposed Section 14 all the time. I thought there was no necessity for an Inspector-General. I think it is an artificial conception. It was something adopted here in 1924 or thereabouts. It has never been used since. It was, again, a matter of pushing to a logical extreme a conception that if there was anything in the old Act, even though no one can find any justification for it now, keep it there. Clutter up your yard with lumber. I am sorry the Minister insisted on having that section there because, if he had not, we would not have the sort of suggestion in regard to it which Deputy MacEoin made a few moments ago. It does not help the Army one bit. It will be no use in the future. It will never be used. Its only use is to provide a peg on which to hang a particular political argument that is going the rounds at the moment.
This Act provides for stopping or forfeiting the pay of soldiers, and for making penal deductions from the pay of soldiers and in all cases of officers. That power is given to the Minister. When I say “the Minister” it means what the Act says—whatever Minister will be there for the time being, whether it is this year, next year, in five years' time or 20 years' time. The pay of an officer and soldier has lost its statutory protection and now, under this Act, can be taken away from the officer and soldier under regulations that are made by the Minister. Although the Act says that any such regulation made in regard to forfeitures and deductions from the pay of officers and soldiers is to be laid before this House and that this House has within a certain number of days the right to pass an annulling motion, everyone knows that is no protection.
Any Government that is in power here is a Government that has a parliamentary majority. A Government with a parliamentary majority that makes a regulation such as that need never fear the regulation will be annulled by the Parliament.
Mr. S. Collins Mr. S. Collins
Mr. S. Collins: In fact it is very rarely any of them is ever raised.
Captain Cowan Captain Cowan
Captain Cowan: In theory, statutory  regulations of that kind are laid on the Table of the House. In practice, they are put into the Library and the stipulated number of days has generally passed before anyone knows anything about them. One gets the Order Paper and one sees there the statutory presentations: such and such an Order is laid on the Table of the House. That is no protection.
I look upon the section that gives the Minister power to make regulations affecting pay as one of the worst features of this Bill. Under the ordinary civil law a man's pay cannot be stopped in his employment. The phrase used is: “Stoppage is no payment.” While the law prevents deductions or stoppages by an employer except in relation to social welfare contributions we have in this Bill a provision that the Minister may at any time make regulations authorising deductions and stoppages from pay, regulations which may completely alter the basis upon which a soldier contracts to serve the State.
I consider that one of the greatest defects in this Bill. Whenever it is ascertained that the regulations published and promulgated do not capture some part of a man's pay that someone wants to capture there will be the appropriate amendments made in the regulations in order to capture it and take it away. It is a serious matter that after all our years of experience we should come to the conclusion now that one can affect the pay of officers and soldiers in the way this Bill proposes the Minister for the time being can affect it. There would be some protection if we could be sure that these things would be done by the Minister for the time being, as the Bill says; but we know from past experience that there is grave danger that on occasion the Minister will simply sign on the dotted line. That has happened in the past. I know from personal experience that the present Minister is more conscientious in matters of that kind. In the past we have had experience of Ministers who did not care and we have no guarantee that we will not have similar Ministers in the future.
 For one who soldiered in the Army as a soldier and an officer I feel a keen sense of regret that I am taking part in the removal of the protection that the officer and the soldier had in relation to their pay under the old Act.
This Bill has many defects in so far as it applies to officers and soldiers in the regular Army; in so far as it applies to officers and men of the Reserve it has provisions which, if ever enforced, will destroy that Reserve. This Bill contains provisions whereby a reservist for a breach of regulations affecting him simply as a member of the Reserve may be hauled before a district justice and treated as a common malefactor. I never thought that with our new conception of a reserve, consisting of individuals voluntarily accepting the responsibilities and obligations of serving the State as reservists, I would see the day when we would provide that they could be brought in summary fashion before a district court and punished for failing to appear at the place of parade appointed for them. I never thought that I would see the day when an Army officer would have the right to say in relation to a reservist: “I want that man brought before the local district justice where the representatives of the Press will be present to take down everything that is said” or send him forward for trial by the military authorities where there will be little likelihood of any publicity.
That is an extraordinary power to give to an Army officer. I could not imagine any such power as that being given to an Army officer where the correct relationship between the Army and the State is properly recognised. I do not know how this will work out in practice. I can see difficulties in regard to its application. I can see difficulties as to how that reservist is to be brought before the district justice when the officer has said that he is to be brought before the district justice. What is the position of the Army officer there? Is he a common informer? That is what I want to know, is he placed in the position of being a common informer? Will he appear in a district court as the  prosecutor? Will he be the complainant?
Whatever the difficulties are, it is a detestable provision to put into this Act. The Minister says, of course, that such a provision was in the old Act of 1923. The Act of 1923, as the Minister knows based as it was on the British Army Act, had reference to reservists who had served their period in regular Army service and that had been transferred to the Reserve after completing their Army service, and, generally were in receipt of some pension, a condition of which was liability to serve. That is a very different position from that of a volunteer Army of young boys who are proud of their country, proud to wear the uniform of their country and proud to serve their country in arms. Of course, the Minister may say: “Well, the provision is there but it will not be applied”, but if we make laws which say that you can do that, that you can bring your reservist for not attending before the local district court then either the law is necessary or it is not necessary. I do not agree with what the Minister said in regard to that, that he was advised by the military authorities that it is a power they wanted. They have no right to ask for such powers.
Mr. S. Collins Mr. S. Collins
Mr. S. Collins: To avoid inconvenience, apparently.
Captain Cowan Captain Cowan
Captain Cowan: Whatever they want to avoid, they have no right to ask for such powers, and I think this House is very unwise, and has been very unwise, in giving that power here.
This Act is an Act with the very widest powers of punishment for citizens who serve the State as soldiers. It may sentence those citizens to death, to penal servitude and to imprisonment. The sentence may be carried out by hanging or shooting or gassing or by the electric chair, because this Act gives the power to decide the method of execution. It gives that power—to decide the method of execution. If we consider, as a Legislature, that the humane way to execute a man is to hang him, there is no obligation on the military  authorities under this Act to hang the man or to shoot him as a soldier would like to be shot, or even to strangle him in the same way as some of the protectors of our civilisation behaved not so long ago.
This Act provides that, when a sentence of death is imposed, there is a confirming authority, and that the sentence may be referred to the Government. It provides also for confirmation of the finding of the sentence in regard to penal servitude or imprisonment; but the citizen who is not a soldier who is sentenced to imprisonment, penal servitude or to death, can go to the highest legal tribunal we have in the country, the Court of Criminal Appeal, and on appeal from that to the Supreme Court. Before the Government has any say in the matter, in the case of a citizen who is not a soldier and is sentenced to death, the highest legal tribunals in the country can examine into the matter.
This Act makes no provision whereby a citizen in uniform can have a sentence of imprisonment, or penal servitude, or death investigated by the highest legal tribunal in the country. In so far as those sections of the Act which relate to those heavy punishments provide the methods that they do provide for subsequent consideration of a court-martial sentence, they are gravely defective. It has been said, and I do not want to repeat it, that in Britain they have made provision for appeals to the Court of Criminal Appeal after many years of struggle for that right.
As I understand it, in the new Defence Force that is to be built in Germany provision will be made for such appeal, and this nation which has been in the van of progress, a leader in civilisation, denies to its soldiers in uniform, denies to its citizen soldiers, the right of having their case examined by the highest legal authority in the country.
There are many other matters in this Bill but I do not propose to go into them this evening. We might have had a new conception in regard to this Bill. We might have made an Act which would govern the Defence Force and  its administration in ordinary peacetime and we might have had provisions relating to the different types of emergency, but we got unfortunately into a state of logicality and pushed everything to a logical conclusion whether it was sense or not.
That is exemplified in the provisions in this Bill in relation to liability to military law. This Bill provides that an officer or soldier of the regular forces is always subject to military law. It provides that an officer or soldier of the Reserve is subject to military law when he is called out on training or exercise, or in aid of the civil power, or in an emergency, or on permanent service. But that was not sufficient. The logicians were not satisfied with these provisions and they contemplated the occasions on which a reservist might ask permission to attend a wedding, the wedding of a relative or friend, in uniform. They contemplated the position where a member of the Reserve might like to wear his uniform to a dance, to a dinner or to a function.
The logicians had to have some method of dealing with him when he had that permission and they make him subject to military law when he has permission to wear the uniform. Liability to military law means a tremendous lot as far as that fool— because that is what I call him—who looks for permission to wear a uniform to a wedding, a dance, a dinner, a party or a reunion, is concerned. It means that when he is subject to military law he has to obey the lawful orders of his superior authorities, that if he behaves in an insubordinate manner to them he is guilty of an offence; if he is guilty of an offence he may be tried by a superior officer as prescribed in this Bill; he may be sent for court-martial and he may be sentenced to any of the punishments that are provided for him in this Bill. Of course the logicians have their way and that is where we end up, with the man who got permission to wear his uniform to a party finding himself in detention or in a prison cell.
One provision of this Bill in relation to the grievances of officers and soldiers has received considerable discussion and I am glad to acknowledge that the provisions which the Minister has  now incorporated in the Bill have made for improvement, much needed improvement, in regard to a matter that was considered of great importance by the members of the Defence Forces. I think the House would be glad to know that the examination of the Bill has resulted in an improvement there.
I can only hope that while this Bill is being administered by the Department of Defence it will be administered in a generous way because if this Bill, when it becomes law, is administered in the narrow-minded way in which it was attempted from time to time to administer the old Act, then, as I said at the beginning, it will scald the soldiers and the officers of the Defence Forces. I can only hope that there will be a new approach to it and that at least in its administration the principle, which we acknowledge generally in the country, that a person is innocent until he is proved guilty will be applied and that the administration of this Act will not be based on the other concept that a person is guilty until he establishes his own innocence.
I have no hope that any such change of heart will take place after the passing of this Bill. I knew finance officers who had the responsibility for the finance sections of the Army in days gone by. Even in their retirement, they must enjoy the fact that such a Bill as this has been passed. Their lives would have been happier during their official career had they a Bill such as this to operate against the soldiers and officers of the Army. It must bring joy to many other people who have not the conception that one would expect them to have in regard to principles of justice and fair play.
We can take it that the regulations which the present Minister will make in regard to pay, deductions from pay and forfeitures of pay will not be very different from the statutory provisions that exist at the moment. I have no hesitation in saying that. I can only hope that Minister for Defence in the future will have the same high conception of duty and justice that the present Minister has. If one could be assured of that, one would not have  the regrets that I have in regard to the Bill in its present form.
I might say this, in conclusion. The Minister has been an example of patience to every member of this House and to every member of the Special Committee. I think he does appreciate that, while there was harsh condemnation of different parts of the Bill, both in Special Committee and here, that criticism was directed to wards the provisions of the Bill and not towards himself as Minister. He met us on the Special Committee and in the House during the protracted debate on the Report Stage and maintained his patience inexhaustible to the end.
The consideration of a Bill such as this in Special Committee has been an experiment. Whether it has been a good experiment or a bad one will be a matter for consideration. Personally, I think it was a good experiment. Whenever a Bill of this magnitude comes before Dáil Éireann it should be considered in Special Committee, but if Special Committees are to operate it is essential that attendance there be almost compulsory. It loses a tremendous lot of its value if the members cannot find time to attend all the meetings. Individual members may have to be absent, because of illness or other grave reason, from certain sittings. Members may come to the committee and may give every possible assistance to the committee and find that through circumstances they are not able to attend subsequent meetings, but if the records of this committee are examined it will be found that there were too many absentees on too many occasions. Consequently, the value of that Committee Stage was lost. I feel that if we had a full committee and if the recommendations that went to the Minister from it were those of a number of members, it would have had better results.
This is in no sense a Party Bill, there is no politics in it. It was the desire of this House that it should not be treated as a Party Bill and it has never been treated in that way from the beginning to the end. In that type of Bill, where you have three,  four or five Deputies representing different Parties, putting a strong case to the Minister, it is obvious that the strength of the case made by them would have a very considerable effect on the final decision of the Minister and the Government in regard to it. I think Deputy Collins, who is here and who was an active member of the committee, will bear me out in that; and Deputy McQuillan, who is not here at the moment but who was a very admirable attender until he got ill, will also bear me out in that. It is important that the experience we have gained in the Special Committee should be mentioned on the concluding stage of this Bill.
A Special Committee can do valuable work, but in other Parliaments when Deputies are assigned to Special Committee it is a parliamentary offence not to attend the meetings of the committee. If we are to have that procedure in the future, I hope Deputies will feel it a bounden duty to attend and to give their best services on the committee. If one has that experience of a committee with all its members attending, there would never be the necessity for the protracted Report Stage we had here, in the case of a non-contentious Bill. To me, personally, it was a labour of love—if one would accept that description—to participate in the discussions. I regret very much that the efforts I made in regard to it were not better rewarded by ministerial acceptance of suggestions I made for improvement.
Mr. S. Collins Mr. S. Collins
Mr. S. Collins: Like Deputy Cowan, having spent a long time with this Bill, I have a personal sense of regret that, after all our efforts, we have not produced something more worthwhile, something more equitable to all concerned. I will be described as a crank, I am quite sure, if I say that there is a mentality underlying the Bill that seems to put the Army in a different category from others. For some reason or other, the official mind does not conceive Army personnel in its proper perspective. There are distinctions with regard to remuneration. This Bill provides pernicious and iniquitous powers in furtherance of that idea.
 As one who has served in the Army as a private and as an officer, I feel that this Bill is not doing justice to the status of the Army or is not paying the respect to the Army that it merits from this State. From the initiation of the discussion on this Bill it has been evident that, apart from a limited circle of interested people, this Bill was a cumbersome, heavy and large Bill to Dáil Éireann, in which practically no interest was evinced even though the Bill relates to an integral part of the nation's make-up.
There are positively obnoxious sections in the Bill with which I will deal but it is the general conception behind the Bill that has been a causa irritans to me since the start. Let me go on record as saying that there has been an impenetrable wall of opposition that has killed initiative in regard to this Bill. The Bill is a re-incorporation of archaic references. I regret that we were not bold or strong enough in this Parliament to hew a permanent Defence Forces Bill worthy of the nation's tradition. As I said in Special Committee, I believe that if we had got our collective mind working in a generous way we could have produced something infinitely better than this Bill. We were in the unique position that the personnel of the committee had a deep interest in the problem and were drawn from two generations, one that had known conflict for nationhood and the other that had stood to the colours during the Emergency. There was a blend of practical experience that could have been listened to with much better effect by the official mind than was the case.
It is our duty as a Parliament, in a non-contentious Bill of this nature, to try to evolve a measure worthy of the House and worthy of the Army. I do not think this Bill is. This is a permanent Bill. It is a long, involved measure. There are features in it which I regret that I must advert to at this stage. We had a bitter battle in Special Committee, and subsequently, in relation to Section 4. Whatever safeguard is enshrined in the provision that an Order declaring an emergency must be laid before the House within 21 days of its being made, that is the only safeguard we could get after tremendous  pressure. I agree with other members that Section 4 is a wrong conception. No matter how estimable or worthy specific Ministers for Defence may be, we have to argue in the abstract and there is no constitutional lawyer, no person reasonably versed in the provisions of the Constitution, who could conceive the necessity for Section 4. What type of emergency or what type of national problem does Section 4 envisage outside the provisions of the Constitution? It is easy to say that we are arguing the ridiculous when we suggest that the section is capable of immense abuse. It is not an argument—it is a positive fact—that, in the hands of the wrong people, the provisions of this Act could be used to back up their unscrupulousness with the force of law. It is no argument to say that the Minister could not conceive circumstances arising. It is no argument to say that if such people seized power the Constitution would be in abeyance. The fact remains that even the greatest malefactor might find himself answerable for his unconstitutional activity. Under Section 4, that protection would be gone.
It is a pernicious and an iniquitous section. I have said that in the Special Committee; I have said it on the Report Stage of this Bill and I cannot let the Bill go from this House without repeating it. I do not know who conceived this particular section. It is bad in principle and I am not at all sure that, in the ultimate analysis, on a contest on its constitutional validity, it might not be found bad there, too: it is a matter of opinion.
There is no doubt at all but that the real outstanding shortcomings of this Bill are where we should have been most jealous in our protection of the man who elects to serve his State in the Army. Before I deal with that particular section I must, in passing, again repeat that I have a terrible objection to incorporating in the Bill this conception of an Inspector-General. Take the tradition of this country itself. Take the type of warfare that brought us our freedom. Take the whole basis on which our Army was  developed. Where, in all that tradition, can we find the concept of an Inspector-General except in a section culled from the acts of war or some manual of war of another nation? In the constitutional position as it exists in this country, we have the President of the country the commander-in-chief. We have a Ministry for Defence ruled over by a Minister who is a member of this House and, after that, we have the complete conception of the General Headquarters Staff, divisional control, brigade control, battalion control, company control, platoon control.
I think it is not germane to the tradition of our people to interpose into a Defence Forces Bill a title that is even foreign to us. It is, indeed, a poor tribute. Some queer kind of lack of uniformity exists with regard to this Bill. At one stage we have the Minister very rightly defending the preservation within the Army of the concept of the rank of commandant because it has such a sentimental and such a significant connotation so far as the part played by people in winning freedom for this State is concerned. Here, however, for no apparent reason, with no sentimentality to back it and with everything in our traditions to oppose it, we have a section that I say should never have been in the 1923 Act—a section providing for the appointment of an Inspector-General. I do not think it is ever likely to happen that he will be appointed but, once you insert a positive provision in the Defence Forces Bill, you are inviting somebody to take it upon himself to use this provision to appoint a person, in certain circumstances, to that office. The provision should not be there.
I am very sensitive to the defects of the Bill in relation to penal deductions and forfeitures. I am prepared to accept that reasonable occupants of the Office of Minister for Defence may be reasonable people who will deal in a rational and humane way with orders or regulations that may be placed before them for confirmation. Here again, however, we argue on a statutory measure—not on humanitarian grounds. We have to relate our argument in the most abstract way  possible to the provisions. There is no doubt at all but that we are not leaving the officer, the N.C.O. and the men of the Army pari passu with other State employees. We are putting them in a category of their own where they can be subjected, under this permanent Bill, to the vagaries, whims, or concepts of possibly inadequate or unsuitable occupants of the post of Minister for Defence in the future. Nothing in the whole Army make-up led to more trouble and more discontent and more ill-feeling than fines, deductions and forfeitures. They had some protection in the old Act. They have not any real protection—none at all—in this Act. One must ask himself this question: From whence has this concept sprung and what is the necessity for it?
We are arguing in a completely non-controversial way, politically, on this measure. That has been the significant feature of the discussion on this Bill from the start and we have only to try to see what are the first principles of the Bill. The argument of people antagonistic to sections of this Bill has been directed, all along, to a wrong concept of principle or to the attempted establishment of what we conceive to be a wrong principle. I think that a change of heart must come some time. I hope it may come in the Seanad when this Bill takes its tortuous course through it. I hope that a proper slant or some reasonable light will suffuse the official mind and thus enable drastic amendment of this Bill to be made in relation to that particular facet of its activities.
We have experience of the jealous way in which the soldier guards his prerogatives and rights in relation to pay. We know perfectly well from our experience in the Army that this is the tender spot, the height of sensitivity in feeling, where the personnel of the Army are concerned. I could argue rightly that whatever the overall grievance may be as to the pay rating of Army personnel compared to the rating of other persons in State employment being completely wrong, there is no doubt at all about this fact, that where the question of Army pay, such as it is, is concerned, interference  with that is touching the personnel on the raw spot that they have.
I would like the Minister to tell us why it has been necessary to single out the Army, whether officers, N.C.O.s or men, to become the guinea pig for regulations conceived with regard to forfeitures. Why has it not been possible to give us some background as to what basis is conceived for these regulations? Why has it not been possible to enshrine within this measure all the principles that are going to govern what those regulations might be? Is it that the changing whim of the Finance Department of the Department of Defence is to be the guiding principle on which the regulations will be based? If it is, the experience of people who have had the privilege and honour to serve in our Defence Forces is that it will always fall right on the financial side and that the Army inevitably foots the bill.
Take, again, some of the principles that have been attacked by Deputy MacEoin and by Deputy Cowan—the principle of there being no right of appeal from sentences of courts-martial, particularly the sentence of death. Our experience has been, from the point of view of the jurist, that nothing goes as slowly as British law does, but, as properly referred to here, even England after years of persistent parliamentary activity has conceded the right that there should be an appeal to the Court of Criminal Appeal in certain types of cases in relation to courts-martial. What conception can there be of a court-martial dealing with the right of life or death of a person other than as a court of first instance to the trial? What weight and conception of that court-martial can there be any greater than the weight and conception of the judge of the High Court and a jury in the Central Criminal Court? I do not think it should be higher than that. I do not think it should be treated other than as a competent court of first instance, and if conviction follows there, I do not think it should be immune from review by higher courts such as the Court of Criminal Appeal and in the ultimate analysis, as in the Court of Criminal Appeal, on the fiat  of the Attorney-General, the Supreme Court itself. I think it would be better from the point of view of our appreciation of the sacredness of human life that in normal circumstances at least a right of appeal should exist to the Court of Criminal Appeal from capital punishment by court-martial. I think that possibly the argument in relation to the Reserve may seem far-fetched when it is presented here in the House in the cool, calm atmosphere of a limited debate. But there is no doubt that, no matter how extreme you make the case, there are provisions here which make a member of the Reserve amenable to military law in a manner that I think is wrong and the position may be even more invidious for the officer of the regular Army who may interpret these provisions. People may argue, and the Minister will possibly say: “The Deputy knows perfectly well that this provision will not be enforced.” If that is the concept, then will somebody tell us why these provisions are there? The Bill is very lengthy and very bulky. Why then put in these unnecessary provisions?
Let us come to the opposite extreme from that envisaged by Deputy Cowan and take it that some spleen exists between a regular officer and a member of the Reserve. Is it not possible when that reservist, for any purpose, whether social or training, is amenable to military law, for that spleen to be very easily satisfied under these provisions? I tell the Minister in a straightforward way that the concept is wrong. I have insisted from the start that the whole approach to this Bill has been too narrow, that there has been an inflexibility of purpose behind the concept of this Bill, that is well and truly dressed in the archaic, garbled language that runs right through it from start to finish.
I started off, the first day we went to the Special Committee, with the earnest hope that the spontaneity and good will of the people who knew and understood the Army from the Army's point of view would have some weight in the ultimate shaping of this Bill. But, as meeting succeeded meeting in the Special Committee, as section succeeded  section on the Report Stage, all that hope was killed because of that inflexible determination of somebody who had conceived this Bill to hold on to as much of it as was humanly possible. It is a terrible tragedy, after the time and effort that was put into this Bill, that we have not been able to produce something a lot better.
I look upon the Army as one of the highest and most honourable professions to which anybody in this State can be called. I look upon it as a force, in its training and in its type, comparable and, in many cases, superior to many of its prototypes in the world. We look, as we must in this generation, to the tradition that it is carrying on, and then we look on this voluminous measure, which is to be a permanent one, and we find a mumbo-jumbo and a garbled version of the concept of many other Defence Acts, culled in many cases in full and in some cases in part, to make an integral whole for our permanent Defence Forces Act. Are the Articles of War, and the Canadian regulations with regard to their armed forces the best basis on which we can conceive a measure for ourselves? I do not think so. But there is no doubt that that is the basis on which this Bill is conceived. Even though I may be told that this Bill is very little changed from that introduced by the previous Minister of Defence, that still does not alter the fact that I would have fought that Bill just as vigorously as I have protested against what I consider the obnoxious sections in this Bill.
It would not be fair to the House, and certainly not fair to the Minister, that at this stage we should go through this Bill again virtually section by section, but I want the Minister and the House to know the sense of futility and frustration that we feel at the end of years of parliamentary work when we find the Bill as inadequate as it is.
I feel personally that this whole Dáil can be indicted for its lack of interest in what is one of the most important measures we can pass. I doubt if 40 Deputies in this House either know, have read or investigated the implications of Section 4 of this  Bill. We have seen repeated observations in the Press with regard to the gallant handful who persevered throughout the long tortuous passage of this measure through the House. It is a very poor tribute to the Army and to the Dáil's concept of the Army that that has been the case. We are trying to produce a permanent Defence Force Bill, and in 147 Deputies in this House, with the exception of eight or nine, there has been either casual interest or no interest at all. I thoroughly agree that much more weight would have been added to the arguments and to the pressure on the Minister to amend this Bill if the House had been either co-operative or vigilant in regard to it. I want to see going through the Dáil as a permanent measure for the Army of this State the best Bill we can possibly give them. I certainly do not believe that this Bill is such or anything like it. We had the experience over the years of the multitudinous and ever-increasing number of amendments we had to the temporary Act. We saw the difficulties it led to. We experienced the effort of trying to co-ordinate these amendments and trying to get our Defence Force regulations up to date. We wanted to obviate that difficulty, and we approached our work on this measure from the point of view of trying to offset practical difficulties we had known ourselves and trying to conceive a Bill in simpliciter that would make for easier administration.
It is true that the vast bulk of this Bill is non-controversial because it is more or less of technical administrative importance, but when a Bill goes through this House as a permanent measure incorporating the obnoxious principles that I have set down it cannot be described as the best contribution this House could have made. Say, as may be said, that we have bees in our bonnet with regard to fines, forefeitures and deductions from pay. Say, as may be said, that we have bees in our bonnet with regard to the treatment of Reserve personnel. The fact remains cold, crystal clear that specific revision is in the Act to enable the problems that we have envisaged to arise and it is no argument to say that it will never be invoked. Where a  Statute provides a positive provision, then nobody can say whether in the future it will not be invoked. Some persons examining the Bill in the future may pose themselves the question: “If this was not intended for use why is it there at all?” That is the question I am postulating to the Minister now. Why are some of these provisions necessary at all? No justification to the satisfaction of any reasonable person has yet been provided for the Inspector-General, but let that conception even be conceded. Our anxiety and our worry is as to what is behind the variation and departure from the old method with regard to penal deductions. That is the most vexed question that presents itself when dealing with personnel of the Army. That is where we should have clear and succinct declaration of principle. It may be far-fetched to say that regulations could after the complete contractual basis on which the soldier enters into contract of service with the State, but at least regulations could vary them to such an extent that they would not be recognisable in relation to the original contract of service. We know perfectly well with any experience in this House that where a contract of service involves any other officials in the State such regulation provision to alter it does not exist.
I have said before, and I am saying it again at this stage of the Bill, that for some reason or another the Civil Service in this country, the permanent State officials, take it upon themselves to look upon the Army as something not in the same standing as themselves. They may not do it in a conscious way, but we can conceive in the scheme that they devised on the basis of comparable pay rates between grades of the Civil Service and the Army that they do not rate the Army as highly as I think they should be rated and deserve to be rated. That is the kind of background to this measure that really gets my back up. I feel myself that if that type of approach had been removed, we would be standing here to-night, such of us as were interested in the Bill, to give the Minister infinite good wishes with a measure that had given infinitely more satisfaction in general to the House and which to my mind  would have given an infinitely better Bill. I move the adjournment of the debate.
 Debate adjourned.
The Dáil adjourned at 10.30 p.m. until 3 p.m. on Thursday, 1st April, 1954.
Dáil Éireann 145 Committee on Finance. Defence Bill, 1951—Fifth Stage (Resumed).