Military Service Pensions Act , 1934

1 Definitions.

1.—In this Act—

the expression “the Minister” means the Minister for Defence;

the expression “the Act of 1924” means the Military Service Pensions Act, 1924 (No. 48 of 1924);

the expression “the Act of 1925” means the Military Service Pensions Act, 1925 (No. 15 of 1925);

the expression “the Act of 1930”means the Military Service Pensions Act, 1930 (No. 8 of 1930);

the expression “the Forces” means the following military bodies, that is to say:—

(a) Oglaigh na hEireann (Irish Republican Army),

(b) The Irish Volunteers,

(c) The Irish Citizen Army,

(d) Fianna Eireann,

(e) The Hibernian Rifles,

(f) Cumann na mBan;

the expression “the first critical date” means the 11th day of July, 1921;

the expression “the second critical date” means—

(a) in the case of a person who served in the Forces on the 1st day of July, 1922, the 1st day of July, 1922, and

(b) in the case of a person who did not serve in the Forces on the 1st day of July, 1922, but who served in the Forces at any time during the period commencing on the 2nd day of July, 1922, and ending on the 30th day of September, 1923, the date during that period on which such person first served in the Forces;

the expression “certificate of military service” means a certificate granted under section 2 of the Act of 1924;

the word “prescribed” means prescribed by regulations made by the Minister under this Act.

2 Service in the Forces.

2.—(1) A person shall for the purposes of this Act be deemed to have been serving in the Forces while such person was rendering active service in any of the bodies which constitute the Forces and, in the case of a person who served as a member of the Irish Volunteer Executive or of the Headquarters Staff of Oglaigh na hEireann (Irish Republican Army) or in the Intelligence Branch of any of the bodies which constitute the Forces, while such person was so serving.

(2) The following circumstances shall not be deemed to constitute a breach in the continuity of service in the Forces for the purposes of this Act, that is to say:—

(a) absence from duty following arrest, imprisonment, internment or deportation under the Defence of the Realm Act, 1914, the Restoration of Order in Ireland Act, 1920, or any regulations made thereunder;

(b) absence from duty following arrest, imprisonment or penal servitude in respect of sedition, treason or treason felony prior to the 11th day of July, 1921;

(c) absence from duty by reason of duties necessitating such absence undertaken at the instance of or on behalf of the Cabinet of the First Dáil Eireann or of the Second Dáil Eireann;

(d) absence from duty while under arrest, as a result of activities as a member of the Forces.

3 Persons to whom this Act applies.

3.—(1) This Act applies to every person—

(a) who served in the Forces at any time during the week commencing on the 23rd day of April, 1916, or who served in the Forces continuously during either of the following periods, that is to say, the period commencing on the 1st day of April, 1920, and ending on the 31st day of March, 1921, and the period commencing on the 1st day of April, 1921, and ending on the 11th day of July, 1921, and

(b) who served in the Forces at any time during the period commencing on the 1st day of July, 1922, and ending on the 30th day of September, 1923, and

(c) who is not a person to whom the Act of 1924 applies.

(2) Where a person who is not a person to whom the Act of 1924 applies and who is not a person to whom, by virtue of the preceding sub-section of this section, this Act applies, has either—

(a) served in the Forces at any time during the week commencing on the 23rd day of April, 1916, or

(b) served in the Forces continuously during the period commencing on the 1st day of April, 1921, and ending on the 11th day of July, 1921,

this Act shall, notwithstanding anything contained in the foregoing sub-section of this section, apply to such person, but with and subject to the modification that, in respect of such person, the expression ‘the first critical date’ shall be construed as meaning the date during the said week or, if he did not serve during the said week, during the said period, on which he first served in the Forces in such week or such period (as the case may be) and the expression ‘the second critical date’ shall be construed as meaning the earliest date in the period between the first critical date in respect of such person and the 12th day of July, 1921, on which such person held his highest rank in such last-mentioned period in the Forces.

(3) The Act of 1924 shall, for the purposes of this section, be deemed not to apply to a person to whom that Act in fact applies but in respect of whom the Minister is satisfied either that because of such person having served in the Forces he did not apply for a certificate of military service under the said Act or that such person was refused such certificate because of his having been sentenced to imprisonment or penal servitude in respect of an act done by him in the execution of his duty as a member of the Forces.

4 Notional grades of rank.

4.—(1) For the purposes of this Act the following shall be deemed to have been the grades of rank in the Forces, that is to say:—

(a) Rank A;

(b) Rank B;

(c) Rank C;

(d) Rank D;

(e) Rank E.

(2) For the purposes of this Act any grade of rank specified in any paragraph of the immediately preceding sub-section shall be deemed to be senior to any grade of rank specified in a subsequent paragraph of the said sub-section.

(3) References in this Act to the grade of rank held in the Forces at a particular date by a person to whom this Act applies shall be construed as references to the grade of rank deemed to have been held by him at such date as ascertained in accordance with the rules set out in the First Schedule to this Act.

5 The Referee.

5.—(1) For the purposes of this Act there shall be a referee (in this Act referred to as the Referee).

(2) The Executive Council shall as soon as may be necessary after the passing of this Act and thereafter as occasion requires appoint on the recommendation of the Minister a person who at the date of his appointment is a judge of the Supreme Court, the High Court or the Circuit Court, or a Justice of the District Court, or a practising barrister of at least ten years' standing to be the Referee, and any person so appointed shall hold office during the pleasure of the Executive Council.

(3) Whenever the Referee is through ill-health or other sufficient cause temporarily incapacitated from performing the duties of his office, the Executive Council may on the recommendation of the Minister appoint a person who at the date of his appointment is a judge of the Supreme Court, the High Court or the Circuit Court, or a Justice of the District Court or a practising barrister of at least ten years' standing to perform during such incapacity the duties of the Referee, and every person so appointed shall during such incapacity have all the powers of the Referee.

(4) There may be paid out of moneys provided by the Oireachtas to the Referee or any person appointed under the immediately preceding sub-section such fees or remuneration as the Minister for Finance may determine.

(5) The Minister may make rules regulating the procedure of the Referee.

(6) The Referee may for the purpose of carrying out the duties imposed on him by this Act, make all such inquiries as he may deem necessary.

(7) The Referee shall have all such powers, rights and privileges for enforcing the attendance of witnesses and examining them on oath (which he is hereby authorised to administer) or otherwise, and for compelling the production of documents as are vested in the High Court, or a judge thereof in respect of the trial of an action, and a summons signed by the Referee shall be equivalent to and have the like effect as a formal process issued by the High Court for enforcing the attendance of witnesses and compelling the production of documents.

(8) If any person—

(a) on being duly summoned as a witness before the Referee makes default in attending, or

(b) being in attendance as a witness refuses to take an oath legally required by the Referee to be taken, or to produce any document in his power and control legally required by the Referee to be produced by him, or to answer any question to which the Referee may legally require an answer, or

(c) does any other thing which would, if the Referee were a Court of Justice, having power to commit for contempt of court, be contempt of such court,

the Referee may certify the offence of that person under his hand to the High Court and that court may, after such inquiry as it thinks proper to make, punish or take steps for the punishment of that person in like manner as if he had been guilty of contempt of the said court.

6 Advisory Committee.

6.—(1) There shall be established a committee to be styled and known as the Advisory Committee (in this section referred to as the Committee) to sit with the Referee and assist him in the exercise of his functions under this Act.

(2) The Committee shall consist of four members, that is to say:—

(a) two members, being persons who held high rank in the Forces before the 11th day of July, 1921, who shall be nominated by and hold office during the pleasure of the Executive Council;

(b) a member who shall be nominated by and hold office during the pleasure of the Minister for Finance; and

(c) a member who shall be nominated by and hold office during the pleasure of the Minister.

(3) Whenever a member of the Committee is, through illhealth or other sufficient cause, temporarily incapacitated from performing his duties as such member, the authority by whom such member was appointed may appoint another person to be a member of the Committee in place of the member so incapacitated for so long as such incapacity continues.

(4) There may be paid out of moneys provided by the Oireachtas to any member of the Committee such fees or remuneration as the Minister for Finance may determine.

7 Applications for service certificates.

7.—(1) Any person who claims to be a person to whom this Act applies may send to the Minister an application for the grant to him of a certificate (in this Act referred to as a service certificate) that he is a person to whom this Act applies.

(2) Every application under this section shall be made within the prescribed time and shall be in the prescribed form and contain the prescribed particulars.

8 Reference of applications to the Referee and report thereon.

8.—(1) The Minister shall refer every application for a service certificate to the Referee and thereupon the Referee shall investigate such application and make a report to the Minister thereon in accordance with this section.

(2) Every report by the Referee on an application for the grant of a service certificate referred to him shall contain findings on the following matters, that is to say:—

(a) whether the applicant is or is not a person to whom this Act applies;

(b) if the Referee finds that the applicant is a person to whom this Act applies—

(i) the service periods during which the applicant served in the Forces, the particular military body or bodies (being part of the Forces) in which he served during each such service period, and the duration within each such period of his service in each such body, and

(ii) the grade of rank in the Forces held by him on the second critical date, and, if he was serving in the Forces on the first critical date, the grade of rank held by him on that date,

(iii) such other matters as may be prescribed.

(3) Every report made by the Referee under this section shall be in the prescribed form.

(4) The onus of proving before the Referee any matters of fact alleged in an application for a service certificate shall rest on the applicant and he shall be at liberty to offer such evidence as he may consider necessary to discharge such onus.

(5) Where a report has been made by the Referee under this section on an application for a service certificate, the Minister may, on the ground that evidence not available prior to the making of such report has since become available, request the Referee to review such report, and the Referee shall thereupon review such report and, after considering such additional evidence and any evidence which the person to whom such report relates may adduce, may either, as he thinks proper, confirm or vary such report.

(6) Where the Minister requests the Referee to review a report under this section on the grounds that evidence not available prior to the making of such report has since become available, he shall inform the person to whom such report relates of such request, and, unless such request was made on the motion of such person, furnish him with a statement of such evidence.

(7) In this Act the expression “a report under this Act” means a report made by the Referee under sub-section (1) of this section, with such (if any) variations therein as may have been made under sub-section (5) of this section.

(8) For the purposes of this section each of the periods specified in the second column of the Appendix to Rule 1 of the Second Schedule to this Act shall be a service period.

9 Conclusiveness of report of Referee.

9.—The findings of the Referee as set out in a report under this Act shall, subject to any revision of such report made by the Referee under the subsequent provisions of this Act, be final and conclusive and binding on all persons and tribunals whatsoever.

10 Grant of service certificates.

10.—(1) Where it appears from a report under this Act that the person to whom such report relates is not a person to whom this Act applies, the Minister shall refuse to grant to such person a service certificate.

(2) Where it appears from a report under this Act that the person to whom such report relates is a person to whom this Act applies, the Minister shall, subject to the provisions of this section, grant to such person a service certificate.

(3) The Minister may in his absolute discretion refuse to grant a service certificate to any applicant therefore who shall have been sentenced by a court of competent jurisdiction in Saorstát Eireann or elsewhere to suffer imprisonment with or without hard labour for any term exceeding three months or any term of penal servitude.

11 Grant of pension.

11.—(1) The Minister may, with the sanction of the Minister for Finance and subject to the provisions of this Act, grant to any person who has been granted a service certificate a pension payable, subject to the provisions of this Act, during his life.

(2) Every pension granted, under this Act shall commence as on and from the 1st day of October, 1934.

(3) No person shall receive a pension under this Act unless money for the payment of such pension shall have been voted by the Oireachtas.

(4) The amount of a pension which may be granted to any person under this Act shall be calculated in accordance with the rules applicable to his case set out in the Second Schedule to this Act.

12 Revocation of pension under this Act by the Executive Council.

12.—(1) Subject to the provisions of this section, the Executive Council may at any time by order revoke for reasons stated in such order any pension granted under this Act.

(2) No such pension shall be so revoked unless or until the reasons for such proposed revocation have been communicated in writing to the person in receipt of the pension and such person has been given a reasonable opportunity of making to the Executive Council such explanation, answer, or other case as the may think proper in relation to such proposed revocation or the reasons therefore.

(3) Every order made by the Executive Council under this section shall be published in the Iris Oifigúil as soon as may be after it is made.

13 Revocation and reduction of pensions under the Act of 1924 and this Act by the Minister.

13.—(1) Where—

(a) in consequence of a report under the Act of 1924 a certificate of military service has been granted, or

(b) in consequence of a report under this Act a service certicate has been granted,

the Minister may, on the ground that evidence not available prior to the making of such report has since become available, at any time request the Referee to review such report, and the Referee shall thereupon review such report and, after nearing such additional evidence and any evidence which the person to whom such report relates may adduce, may, either as he thinks proper, confirm or vary such report.

(2) Where the Minister requests the Referee to review under this section a report under the Act of 1924 or a report under this Act on the ground that evidence not available prior to the making of such report has since become available, he shall inform the person to whom such report relates of such request and furnish him with a statement of such evidence.

(3) Where a report under the Act of 1924 is varied by the Referee under this section, the reference contained in sub-section (6) of section 3 of the Act of 1924, as amended by section 2 of the Act of 1930, to the findings of the board of assessors set out in such report shall be construed as a reference to the said findings as set out in such report as so varied.

(4) Where—

(a) the Referee on the review under this section of a report under the Act of 1924 or a report under this Act varies such report, and

(b) it appears from such report as varied that the person to whom such report relates is not, in case such report is a report under the Act of 1924, a person to whom that Act applies or, in case such report is a report under this Act, a person to whom this Act applies:

the following provisions shall have effect, that is to say:—

(i) in case such report is a report under the Act of 1924, the Minister shall revoke the certificate of service granted to such person, and shall, if a pension under the Act of 1924 has been granted to such person, by order revoke, as from a date not being earlier than the date of such order, such pension, and

(ii) in case such report is a report under this Act, the Minister shall revoke the service certificate granted to such person, and shall, if a pension under this Act has been granted to such person, by order revoke, as from a date not being earlier than the date of such order, such pension.

(5) Where—

(a) the Referee on the review under this section of a report under the Act of 1924 varies such report, and

(b) it appears from such report as varied that the person to whom such report relates is a person to whom the Act of 1924 applies,