Gerard Craughwell (Independent) | Oireachtas source

The Minister of State is welcome to the House.I am aware that this issue has been raised by colleagues on both sides of the House in other forums but as it remains unresolved I believe it is necessary to ask for a review of the issue again. When speaking last summer, the Minister, Deputy Howlin, was quoted as saying: "Under our Constitution pensions are preserved property rights. I can no more take somebody's pension than I can arbitrarily decide to take their house". That comment was published in The Irish Timesin June 2015. While this may be true, for some it is not true. Some 80 former gardaí who despite having the required five years minimum service, did not have their pensions preserved until the age of 60 because they were dismissed or resigned from the service prior to 1976. This group, the majority of whom are now aged over 70 with many of them now partners or widows of former gardaí, are naturally very aggrieved at this injustice and are seeking an immediate legislative remedy.

The background to this is that in 1978 the Garda Representative Association, GRA, reached an agreement with the Departments of Justice and Finance that members of Garda rank who resigned from the force on or after 1 October 1976 would have their pensions preserved to the age of 60. This is the agreed report No. 218 of the Garda Conciliation Council. This was followed by agreed reports Nos. 530 and 543, which provide for the preservation of pension entitlements for members who left the force for any reason after 1 October 1976.At the heart of the injustice is the fact that the details of the agreed reports, to which I referred only, came to light when members of the pre-October 1976 group approached the age of 60 and were informed by letter from the Department that they had been excluded without their knowledge. Since then a group, led by councillor Pat Hynes from Galway, has been actively engaged in seeking justice and has made innumerable representations to the Department of Justice over the years but to no avail. It is further notable that since 1976, these agreed reports have operated on an administrative basis only and have not been incorporated into a statutory instrument or underpinned by any amendments to the primary legislation, the Police Forces Amalgamation Act 1925. It is therefore easy to revise them via legislation.In the opinion of Mr. Gerard Hogan, senior counsel, "members of the Oireachtas ought in justice, to rectify this wrong by means of the enactment of legislation to cater for the very discrete category of pre-1976 members of An Garda Síochána".Mr. Justice Hogan also reminded us that there is a precedent as legislation was passed retrospectively to enable a former Minister to apply to preserve his ministerial pension entitlements, even though he had not done so on time in the past. This refers to the case of the former Minister for Education and Science, Dr. Michael Woods, who missed out on applying for a pension entitlement by the date provided for in the Ministerial and Parliamentary Offices Act. It would appear that where there is a political will, there is a way.

I do not believe there is a citizen in the country who would begrudge these men their pensions. To have their pensions restored to them would be viewed favourably by all as an indicator of a compassionate, paternalistic Government. When one considers that €7 billion was taken from the National Pension Reserve Fund to bail out two banks, the sums involved here are a drop in the ocean. In terms of administration, resolution of this issue does not have to be done on a case by case basis. It is more than an administrative issue; it is a constitutional right issue for which there is legal precedent. In Lovett v.Minister for Education, 1997, Mr. Justice Kelly held that the right to a statutory pension was a property right protected by the Constitution. In the past, former Minister, Deputy Alan Shatter and others have defended the Government's decision to stand over the agreed reports, saying they were decisions reached through negotiations between the Garda representative body and the Department of Justice. In light of the Lovett case, this defence no longer holds water as the fundamental constitutional rights of citizens cannot be negotiated away through union or any representative association. The agreed reports amount to an unreasonable and unjustified interference in the rights of 80 people affected by this decision. They are seeking nothing more than the justice they deserve. They did not voluntarily agree to forfeit their pensions. Most of them were not even aware that this had occurred.

In the course of the judgment in Cox v.Ireland, 1992, Chief Justice Fennelly referred to certain property rights protected by the Constitution, such as the right to a pension gratuity and other emoluments already earned. The pensions to which I refer have already been earned and it is unreasonable to withhold them any longer. I respectfully ask the Minister of State to revisit this issue as a matter of urgency. It is a matter of dignity and due respect to those who have served the State as members of the Garda Síochána for many years. The Government is to be complimented on the number of long-standing injustices that have been addressed over the past five years. Will the Minister of State give a commitment to bring legislation before the Oireachtas in the next session to deal with this as many of those affected are well over 70 and have waited long enough for justice? It is not only former gardaí, most of whom are men, that are missing out. Their widows are also missing out on this entitlement.