MIONTUAIRISC NA FINNEACHTA
(Minutes of Evidence)
Dé hAoine, 13adh Meán Fhómhair, 1935.
Friday, 13th September, 1935.
The Committee sat at 12 noon.
Mr. E. St. John Lyburn further examined.
1851. Deputy Fitzgerald-Kenney.—You located this parent lode, the mother lode, yourself?—Yes.
1852. Where was that? I mean, could you just tell us was it on the slope of the mountain?—Yes.
1853. How far away would it be, roughly?—From where?
1854. From the concession of Messrs. Comyn and Briscoe?—It is very difficult to answer that specifically, because I have not in front of me the exact points. Roughly, at a rough shot, I would say about a mile.
1855. This was a very small parent lode, a very small mother lode?—A very small mother lode.
1856. Could you tell from the mother lode whether it was likely or unlikely that large quantities of gold had been washed away from it?—I do not think so. May I explain my answer there? It is quite possible that you may have gold in a vein of quartz exactly at one spot and at the next shot or blast three inches away the stuff may be barren. In other words, it probably would not be disseminated over the body.
1857. Your skill as a geologist and a miner—did that help you in discovering the mother lode at all?—My skill as a geologist and my skill as a miner would bring me to feature, as we call it, the ground, or look at its physical aspects and, finding gold in the lower levels of a stream, we would go up as far as we possibly could to the summit and there try to find the mother lode or the lode shedding that gold.
1858. So your skill was of some assistance to you?—Yes.
1859. In all gold mining some skill is of some assistance?—Certainly.
1860. You say you suggested the terms of the lease to the officials, to Mr. Ferguson?—Yes.
1861. And it was you who suggested that four men should be kept in constant employment—that that term should be put in?—Yes, four men.
1862. I understood you to say last night —correct me if I am wrong—that that was not seriously meant?—Well, my explanation of that is that, broadly speaking, in a mining lease that is given to a prospector there are certain covenants put in, such as in this instance four men, which are not as a general rule enforced. They are put in in order to try to get the people concerned to do a certain amount of work—an attempt, I might say. I am talking now, broadly speaking, from the point of view of the mining world and not exactly in connection with this particular lease. Broadly speaking, that sort of thing is put in in an attempt not to have the property hung up, as it were. The royalty owner is always an accessory to get some profit out of a thing and it may be he will not attempt to exercise these clauses strictly. He may give a certain amount of latitude, possibly in view of the fluctuating nature of deposits. The royalty owner seldom, generally speaking, holds to a labour clause of that description. as an economic geologist, of course, it would not come within my bounds to say whether this clause should be enforced or not. If it came before me on a technical matter it would be a different thing; but within my province as an economic geologist I cannot say whether such a clause would be enforced or not.
1863. Perhaps you will keep yourself down as far as possible to this particular matter and leave general things out. You suggested four able-bodied miners to Mr. Ferguson?—I did.
1864. Did you suggest to Mr. Ferguson that that should not be rigorously enforced?—Whatever I said on the file I stand by it.
1865. There is nothing at all about the four men in the file?—We have the usual covenants, do you not see?
1866. I do not know whether you can remember; it is probably some time ago, and it is quite possible you cannot remember, and I do not want to press you in any way unfairly, but can you remember as to whether you mentioned to Mr. Ferguson that this covenant should not be enforced?—I never mentioned it.
1867. Chairman.—On how many occasions were you consulted in connection with the granting of this lease—on how many occasions, approximately?—I think probably only twice.
1868. In one case you wrote a report— did you write a report in both cases?— I did not write any report on the matter. It was a minute, because it was not necessary for me to go down and report upon the property, knowing it so well.
1869. Before the grant of this lease was decided upon I take it you were consulted as an economic geologist?—Yes.
1870. What happened?—Their offer was put in front of me and I saw the file twice and I said: “these are the terms you should get.”
1871. Did you think you were adequately consulted on this matter?—I did.
1872. You did not feel that you were not adequately consulted?—Oh, no, I would not dream of a thing like that. I have had experience of dealing with these things.
1873. Did you feel that there was any reluctance to use your expert knowledge in this matter?—No.
1874. Did you feel your expert knowledge was adequately used in this instance?—Certainly.
1875. Deputy Traynor.—You were not influenced by any atmosphere radiating from any source?—Certainly not.
1876. Deputy Dowdall.—The lease was granted on certain terms?—Ye.
1877. Those terms if my understanding of them serves me right were the same terms as were in practice when this country was under the British?—Oh, they were.
1878. You are certain they would be the same?—Yes.
1879. Parliamentary Secretary to the Minister for Finance.—It has been suggested in general that there was an absolute lack of any proper geological consideration in relation to the drawing up of this lease to these people—is that your opinion?—Would you please repeat the question.
1880. It has been suggested that there was an absolute lack of any proper use of the available geological opinion in the drawing up of the terms of this lease?— There was no lack, and I consider, Sir— I might say this—that probably the Department were lucky in having a man who had experience of gold mining in South Africa and who had at his back before joining the Government Department the experience of having travelled every field where gold mining was carried on in the Woodenbridge area. They were fortunate in having the combined experience of gold mining in South Africa plus the experience of gold deposits in Wicklow plus other experience; so that to me as a mining man using mining expressions it was quite a clear bill, having, as I say, had experience in local matters as to what is done and as to what they do in other countries. That is my answer.
1881. If you were asked to advise now in relation to a gold mining proposition in County Wicklow would you advise terms generally such as you advised on that occasion?—Certainly, the very same terms.
1882. Nothing has happened to change it since?—Nothing has happened to make me change what I advised.
1883. Can you suggest as a geologist and from your experience as a geologist and departmental official any improvement in the method of associating that geological knowledge with a proposition of this kind?—Well, of course, the Government might put a boring apparatus on that property to see what is there. It is a pretty well known economic factor—and I must draw the Committee’s attention to the fact—that alluvial deposits show a large variation in content as regards the size of the metal deposit and the quality of the deposit which may influence the amount of the gold found. Let us suppose the Government had to do a lot of boring in this district. It would certainly cost a considerable amount of money, and I doubt whether you are going to get very much practical results. Whereas a system of charging a certain royalty on the stuff got is probably the best way of handling a proposition like that. Is your question this: that if the Government had done something else, they would know more about it?
1884. No, it is not quite that, but having regard to the time in fact that has elapsed whether people would change their minds in relation to the terms they would recommend—would you now in fact take very different action?—No, no different action.
1885. Deputy Fitzgerald-Kenney.—How much would a boring plant cost?—The price of a boring plant would be according to the capacity of what it would do.
1886. Take the smallest kind of plant? —Well, I should say roughly it would be about £200. But what is it going to do? What will a small boring plant do? The question of boring is one of much interest. You have to take into account the capacity of the plant; its mechanical capacity and driving capacity are dependent upon its depth. For example, I sank holes 3,000 or 4,000 feet deep in the Transvaal but for such work we would want big machines. You can get a small boring plant for a couple of hundred pounds; but when boring you want some power behind you to go deep. Miners will always go down a little bit further and therefore there are large expenses, but you can say roughly that a small plant used by a couple of lads to do a foot or two a day would cost you a couple of hundred pounds.
1887. What I want to get at is this— £200 would be a very small sum on which anything like adequate boring could be done?—Yes, a very small sum.
1888. A capital sum of £200 is a sum on which you could do very inadequate boring?—Very.
1889. Deputy Dowdall.—I asked you a question a few moments ago as to the terms under which this lease was granted being the same as they were during the time of the British?—Yes.
1890. I believe that those terms are embodied in a statute?—By the British.
Deputy Fitzgerald-Kenney.—I do not think so.
Deputy Dowdall.—I am only asking the question; I do not know.
Witness.—I do not think so.
1891. Deputy Dowdall.—You can get any other terms you like?—I suppose you could.
Deputy Fitzgerald-Kenney.—It is only a memorandum.
1892. Parliamentary Secretary to the Minister for Finance.—I want to ask one more question and it is only one. You have already sworn, I think, that the £200 mentioned in this particular lease was adequate for the purposes envisaged by the lease?—I have.
Mr. John Leydon recalled and examined.
1893. Chairman.—You are familiar with the terms of the letter addressed to you on 25th April, 1935, by Senator Comyn and Deputy Briscoe?—Yes, I have read it.
1894. Have you read the last paragraph of that letter?—Yes.
1895. What did that convey to you?—I should like to draw the attention of the Committee, in the first place, to the fact that this letter, and the document which accompanied it, were sent to the Department at the request of an officer of the Department. The minutes which have been furnished to you and which are in one of the confidential files show that an interview took place on 25th April between Senator Comyn and Deputy Briscoe, on the one hand, and Mr. Clarke of the Department, on the other. In the course of the discussion, the fact that an agreement had been made was disclosed to Mr. Clarke and generally the lines of the agreement were indicated to him, and it was stated that capital would be obtained mostly from outside sources and that the Minister would be asked for a new manufacture licence. They were asked, amongst other things, to explain why it was not considered desirable to enlist Saorstát capital in the enterprise; the Committee will be aware that generally a New Manufacture Licence is required in certain circumstances by a new company which is not, broadly speaking, a Saorstát company with Saorstát capital and Saorstát control. I think the last paragraph may be very reasonably related to that request for an explanation as to why they were going to enlist outside capital.
1896. If this was a good proposition, would it not be desirable to encourage Irish nationals to take up shares in it?—It would.
1897. And in view of the paragraph in the letter which indicated that, because of the speculative class of the venture, the shares should rather be subscribed for abroad than by our own people, taking a purely departmental view of the matter, did you get the impression that a statement of that kind suggested that the thing was exceedingly speculative?—No, I would not have taken that impression from that letter. All mining ventures are speculative. That is generally recognised. I think a gold-mining enterprise is probably more speculative in general than other mining enterprises. This particular gold-mining enterprise, in the light of the history of Wicklow and of the fact that there was a great deal of scepticism generally as to whether there was gold there or not, might, from that point of view, be regarded as more speculative than possibly a mining enterprise in South Africa which is a recognised gold-field, but beyond what are obvious considerations of that kind, I could not regard that paragraph as an indication that this was —to use a phrase which has been used here—a “dud” proposition.
1898. What action did you take following the receipt of that letter?—The action taken in the Department following the receipt of that letter was concerned more with the licence which was sent to the Department, I think, two days later. That is the licence of the 27th April, to erect and operate a mining unit during a limited period on the property covered by the lease. That licence raised a number of questions, firstly, as to whether it was a sub-lease which required the Minister’s consent under the terms of the original lease. That was discussed, as the minutes already furnished to you will show, and legal advice was taken on it and consideration of it proceeded for some time. There was no direct action taken on the letter of 25th April, and if you will allow me to put one or two considerations before you, I think I might give some of the reasons why. The agreement, of which a copy was sent with that letter, was an agreement on certain conditions. It was not a sub-lease. Obviously, before the Department could take any final decision we should have to have the terms of the actual sub-lease before us. We do not ordinarily go out of our way to answer hypothetical questions or give a decision until the time for giving that decision arrives, or until we have all the facts and considerations on which a decision may properly be based. I might also point out that we were aware that certain friction had developed between the parties about the time this agreement was concluded. It was not at all certain, so far as the Department was aware, that the question of putting this agreement into operation would ever arise. Another consideration was that before we came to any decision, it was not at all unreasonable that we should wait for the result of the prospecting that was to be carried out with this unit, which at that time was about to be installed. Finally, with particular reference to some of the evidence given here, I might point out that there could be no question of raising money on that agreement. I cannot conceive any sensible man, any prudent man, putting a shilling into any enterprise on the strength of that agreement. I cannot conceive any issue to the public or any invitation to subscribe capital without the actual sub-lease; I do not believe there would be such an issue without a sub-lease and nobody would put money into it until the sub-lease had been given with the Minister’s consent to the parties who were looking for capital. Therefore, until the Minister gave his consent to the actual sub-lease—not this agreement—I cannot see that any harm could be done in the way of raising money. That circumstance might never arise and it has not yet arisen, in fact.
1899. You mentioned that legal advice was taken by the Department on the question of this agreement?—On the question of the licence for the mining unit.
1900. What questions were submitted to the legal adviser?—To put it briefly, the question on which we asked for legal advice was whether this licence was a sublease that required the Minister’s consent under the terms of the original lease.
1901. To whom was that query submitted?—To the Department’s legal adviser and also, I think, to the Chief State Solicitor’s office.
1902. And the reply in both cases was? —The decision eventually, as a result of the legal advice, was that it was not. That decision was based on the legal advice given to us by our legal advisers.
1903. Was that advice qualified in any respect?—I am looking to see if there is any qualification. The documents have been circulated and I think there was no qualification.
1904. The documents are on a confidential file?—The letter that was actually sent out was certainly drafted and settled in consultation with our legal advisers. The Department’s own legal adviser had some doubt originally as to whether it was a sub-lease or not, but eventually he agreed, and the Chief State Solicitor’s offices agreed, that it was not a sublease within the meaning of the original lease.
1905. Did you feel, therefore, having regard to the terms of the Act that you were called upon to administer, that this was not a sub-lease within the meaning? —Within the meaning of the original lease. The letter was actually issued on the 29th May. A copy of it is on file 195/119. The terms of that letter were settled with the Department’s legal adviser and the Chief State Solicitor’s office, and both the Departmental legal adviser and the Chief State Solicitor’s office concurred in that letter.
1906. You felt, therefore, that you had complete control over the original lessees? .—Yes.
1907. And that this agreement did not in any way transfer the ownership of the mining rights to anybody else?—You are talking, Mr. Chairman, about an agreement, not a licence. I am drawing a distinction between the agreement issued on the 25th April and the licence that was issued on the 27th April.
1908. The agreement or the licence, if issued, still gave you control over the original lessees?—Undoubtedly. The agreement did not become a matter for our consideration, strictly speaking, until put into effect by the preparation of the sub-lease. The sub-lease required our consent under Clause 9 of the original lease, and the licence, we were advised, was not a sub-lease within the meaning of the original lease.
1909. I think you were present when evidence was given on the position of members of the Oireachtas in respect of State contracts or the exploitation of State resources. Can you say whether any consideration was given by your Department, or by the Government generally, to the position of members of the Oireachtas in respect of State property or contracts?—So far as my Department is concerned in connection with this particular lease, or leases under the Mines and Minerals Act, no consideration was given to that particular question. The Department has to administer the law as it finds it, and there is nothing in the law drawing any distinction between members of the Oireachtas and ordinary members of the public. It would be quite outside the functions of the Department administering an Act to draw such a distinction. The general question of the position of members of the Oireachtas in relation to Government contracts is of course, a much bigger question and raises much wider issues, some of which are rather outside my province. But that is a question that was considered some years ago. It was raised, I think, in 1926 by the Department of Finance with the Attorney-General of the day in connection, primarily, with leases under the State Lands Act. The whole position was then reviewed and the Attorney-General was asked for his opinion. He wrote an opinion on the subject in which he referred to certain statutes of George III and others. Generally, the effect of it was, as I understand his opinion, that members of the Oireachtas were not debarred from holding such contracts. In the concluding part of his advice he referred to the Electoral Act of 1923, Sections 51 and 54 of which indicate the disqualifications which debar persons from being members of the Oireachtas. The holding of Government contracts is not mentioned in such disqualifications, and, therefore, members of the Oireachtas are regarded as being eligible for holding contracts from various Government Departments, such as the Post Office, the Office of Works and others. The whole matter was considered by the Executive Council of the day. The practice of Departments was, I think, not quite uniform as regards the giving of contracts to members of the Oireachtas. The decision at that time was that the practice under which members of either House were debarred from participating in certain classes of Government contracts should be discontinued, except in the case of Ministers and Parliamentary Secretaries. That decision was arrived at in 1928, and so far as I am aware it has been acted upon consistently ever since. I am not aware that any consideration has been given to the general question since then.
1910. Parliamentary Secretary to the Minister for Finance.—What was the name of the Attorney-General at that time?—Mr. Costello, I think.
1911. You cannot say for certain?—The opinion was given in December, 1926.
Deputy Fitzgerald-Kenney.—Mr. Costello was the Attorney-General in 1926.
1912. Parliamentary Secretary to the Minister for Finance.—Can we take it from the witness that Mr. Costello was the Attorney-General at the time?—I think you may.
1913. Chairman.—Did you hear it stated in evidence yesterday that the question of the delegation of functions by Ministers to Secretaries of Departments was a matter of very considerable importance which had been discussed by the Executive Council?— I heard the evidence given on that subject, but I do not recollect any statement to the effect that it was discussed by the Executive Council. It is a question that had been considered to my own knowledge by the Departments.
1914. Can you say whether any lease prior to the issue of this lease was signed by the Secretary to the Department of Industry and Commerce where the statute required that it should be signed by the Minister?—I do not think there was any lease given under the Mines and Minerals Act before I was appointed Secretary to the Department of Industry and Commerce. So far as leases under the Mines and Minerals Act are concerned, this certainly was not the first lease. I am not able to say off-hand how many, but other leases were issued. There had been some leases under the Mines and Minerals Act signed and sealed previously without submission to the Minister.
1915. Are you able to give the approximate number?—I can find out the exact number, but I know that 19 leases have been given under the Mines and Minerals Act, and that all these were signed and sealed by me without submission to the Minister.
1916. Are you able to say when the first of these leases was given?—I am not able to give the exact date, but I can get the information.
1917. Have you any knowledge of whether, under the State Lands Act, leases were signed by the Secretary to the Department where, strictly speaking, the statute required they should be signed by the Minister?—Speaking from my own experience in the Department of Finance, I can say that they were signed by the Secretary of that Department without submission to the Ministry, and Mr. McElligott, the Secretary to the Department of Finance, has, in fact, given evidence to that effect before the Committee.
1918. So that under the State Lands Act, though the obligation was imposed on the Minister to sign the lease, in fact the lease was signed by the Secretary of the Department?—That, I understand, to be the position.
1919. As far as you know was it always the position?—So far as I know that was always the position.
1920. And was the position, say, ten years ago?—From the time the State Lands Act was passed I believe that has been the practice.
1921. Is that the accepted position of the Minister during that period?—Oh yes. As far as the Minister was aware, undoubtedly the general practice was that senior officers of the Department or the permanent head of it, exercised certain functions and gave certain decisions. The general practice was known to the Minister.
1922. Mr. McGilligan, in the course of his evidence on Wednesday, said that he could not believe that Senator Comyn and Deputy Briscoe could have obtained the concession so easily, except they were political associates of the Minister. I understand this matter was dealt with by officials of your Department. Do you regard a suggestion of that kind as constituting an allegation that you were a party to issuing a lease to Senator Comyn and Deputy Briscoe because they were political associates of the Minister?—I am not sure that I should put it so far as you do, that they got the lease because they were political associates of the Minister. As far as my recollection goes, I think Mr. McGilligan rather qualified that by saying that he thought they would not get the concession so easily, and that the examination would be more critical if they had not been political associates of the Minister. That was my impression from the evidence given.
1923. The statement was not related to your particular qualification. I have a particular note of the statement?—The records will show what he said. In any event, if I might answer possibly the next question, the fact that they were political associates of the Minister had nothing whatever to do with the action taken on their application in the Department.
1924. Would it be unfair to yourself and other officials of the Department if it was suggested that shortcuts were taken in expediting the grant of the lease to Senator Comyn and Deputy Briscoe because they were political associates?—In my opinion it would be most unfair.
1925. Would there be any ground for the suggestion of facilitating these persons because they were associates of the Minister?—None whatever. I might perhaps be allowed to direct your attention to another file which has been circulated, on which I issued a letter without sending the papers to the Minister, threatening Deputy Briscoe and Senator Comyn with legal proceedings if they did not submit their returns in accordance with the requirements of the statue. That letter was issued on T.I.M. file 195/119, of which copies were sent you. It will show that when the papers came to me I issued the letter without consulting the Minister on the matter at all.
1926. You heard Mr. McGilligan speak yesterday of “atmosphere” being radiated from the Minister; is there such a thing as “atmosphere” radiated from the Minister for Industry and Commerce on different matters?—The “radiation of an atmosphere,” the “occult conveyance of an impression from one person to the subconsciousness of a large number of others” is rather a metaphysical concept and to me somewhat elusive. I am not sure that I grasp exactly what was meant. I cannot relate it to anything that comes within my knowledge in the particular context in which it was used.
1927. Did you hear Mr. Ferguson swear to the effect that in dealing with this matter he was quite unconcerned with the fact that Senator Comyn and Deputy Briscoe were members of the Oireachtas, and treated them as he would any ordinary person?—Yes.
1928. Mr. McGilligan referred to the existence of “atmosphere” yesterday and said that unconsciously officials were swayed by the “atmosphere.” Would there not appear to be a conflict between these two declarations; perhaps not a very tangible conflict?—That is the difficulty about it. It is so intangible. I can only say that, so far as there is any conflict, Mr. Ferguson gave evidence of fact and Mr. McGilligan expressed an opinion. Undoubtedly you cannot reconcile the two.
1929. Is this “atmosphere,” which it is said was radiated by the Minister for Industry and Commerce, an observable kind of thing from your experience?— No, it is not. I might say that in the course of my duties I see the Minister practically every day, when we are both at the office, and sometimes two or three times a day. I have, at a guess, twenty times as much contact with him as any other officer in the Department. I should perhaps except his private secretary, who is a junior officer, and who is not himself permitted to take any executive or administrative action. The Minister never, either in writing or orally, directly or indirectly, by implication or otherwise, gave anything in the nature of an instruction or an impression to me that applications of this kind, from his own political associates, should be dealt with in any different way from that in which applications from anyone else should be dealt.
1930. And there was nothing about atmosphere; the “atmosphere” referred to by Mr. McGilligan. You got the impression that the Minister wanted you to do nothing particular in this matter?— Absolutely nothing. I do not know if that is a complete answer to Mr. McGilligan’s point, that it was unconscious and therefore imperceptible. I may say that if it came to my notice that any officer in the Department was dealing in any sort of preferential way whatever with applications from any member of a political party, I should regard it as a matter calling for serious notice, and I should take serious notice of it.
1931. Could you possibly have been permeated with this atmosphere without your knowledge?—I think it is absolutely impossible.
1932. You imagine that Mr. Ferguson, the Assistant Secretary, could not be permeated with this atmosphere without his knowledge?— I do not believe he could without his own knowledge, nor without mine.
1933. As Secretary of the Department and a man of wide experience, do you believe there is anything in this “atmosphere” evidence?—Frankly, I do not.
1934. Were you present when it was tendered?—I was.
1935. In a choice between allegations of “atmosphere” you prefer a concrete, tangible thing that can be seen. Do you believe by reference to things which are tangible that that kind of evidence is much more reliable than evidence about intangible things like “atmosphere”?— That is a matter for the Committee to say, but if I may express an opinion, I think that the evidence about what is tangible and what is perceptible, evidence of fact, is much more reliable than evidence which is somewhat metaphysical.
1936. Did you hear it stated by Mr. McGilligan in evidence that he got the impression that shortcuts were taken in dealing with this matter because of the personnel of the applicants?—Yes, i heard him say that.
1937. Were any shortcuts taken?—No, there was no shortcut taken by reason of the personality of the applicants.
1938. You mentioned that 19 applications for prospecting leases were granted? —Not 19 prospecting leases. Eight of them were prospecting leases and the other were leases running for the periods of from 21 to 99 years. I may say that, while 19 were issued, they are not all in force. Two were cancelled.
1939. Would the leases issued be comparable to the lease in this case?—Yes.
1940. Was any procedure adopted in these other cases that was not adopted in this case?—So far as I am aware, there was not.
1941. Were all these other leases dealt with by officials of your Department in the first instance?—They were.
1942. Were all these other leases carried through by officials of your Department?—Yes, they were.
1943. Was the economic geologist consulted in all these cases?—I believe he was, in every case.
1944. Was the seal affixed by the Minister or by the Secretary in these cases?— By me in every case, without submission to the Minister.
1945. So that, this particular application was dealt with in the same way as the other eight comparable leases?—Yes. I may say that, while this lease was dated 1st November, 1934, there was a gold mining lease given in June, 1934, which was dealt with in exactly the same way, and the percentage of the royalty was exactly the same as in this case.
1946. Having heard Mr. McGilligan’s evidence for the past two days, do you still maintain that, in the issue of this lease and the negotiations leading up to its issue, there was no pressure of any kind brought to bear upon you or upon any other official of the Department to treat these applicants in any exceptional way?—I do definitely maintain that.
1947. And that any suggestion to the contrary has no foundation in fact?— Absolutely none.
Does any other member wish to ask a question?
1948. Deputy Fitzgerald-Kenney.—I should like to ask the witness some questions, Sir. Mr. Leydon, I must admit that you have rather startled me here.
Witness.—I must apologise.
1949. Deputy Fitzgerald-Kenney.—In this case there were no inquiries made of any kind. Is not that so? Two gentlemen came in to the Department and asked for a lease. Is that right?— Yes.
1950. And no inquiries of any kind were made, and you tell us that that is the procedure which was adopted in every other case?—The procedure as regards inquiries in any particular case would depend upon the individuals concerned. As you raised that point, I may perhaps refer, since personalities have been dragged into this matter…
1951. Deputy Coburn.—Pardon me, Mr. Leydon, would you mind repeating that? I understand that you said it would depend on the individuals concerned. Is that your statement?
Witness.—That is the effect of it. As I was saying, since personalities have been introduced, Mr. McGilligan mentioned two names yesterday. I do not know anything about either of them except so far as their speeches are reported in the papers, and I should imagine that every officer in the Department would be in the same position. I should say, however, that if Deputy Good and Deputy Costello, for instance, asked for a lease, the procedure would have been the same and I should not have dreamed of writing to Stubbs for a report on these two gentlemen.
1952. Deputy Fitzgerald-Kenney.—That is not in the slightest an answer to my question. You are a gentleman of very great intelligence and I think I put my question plainly. You swore, in answer to the Chairman, that the treatment of this application was similar in every way to the treatment of other applications for a lease. That is the answer which startled me. Perhaps you would like to qualify your answer. Was the procedure in every case identical with the procedure in this case?—Well, I understood the Chairman’s question to be based on broad lines. Obviously the procedure in detail was not the same in any two of the cases. To that extent I should have to qualify my answer. Broadly speaking, the Department makes particular inquiries on the point you are on now; but on the broad lines of dealing with the application and deciding about the royalty and terms of the lease, the procedure was the same in any case where we have sufficient knowledge of the parties and where the Department is satisfied that it is not necessary to go to Stubbs or anybody else.
1953. That is just one matter. You send out a questionnaire before granting a lease?—Yes.
1954. In this particular case, in the matter of expert advice, was not that treated as a dead letter?—It was not treated as a dead letter. The minutes on the files circulated to you will show that it was considered.
1955. In how many other cases were leases given in which there was no expert advice or no explanation of no expert advice?—I could not answer that without examination of the actual files.
1956. Anyhow, is it your practice to grant leases in your Department without requiring expert advice?—It depends on circumstances.
1957. But I want to know as to the practice?—As I said, I should have to examine individual applications to answer that, but the attitude of the Department in this case has already been explained.
1958. I am on another ground . As I say, this answer of yours, which was startling, was that the procedure here was the same as in every other case. As there was no expert advice here, is it the fact that you granted leases in every other case without insisting on having expert advice? Is that a fact or not?— That I cannot answer without examining the individual files. If you wish, I shall do so.
1959. Do you consider it a proper thing that, when you send out a questionnaire, which I suppose was drawn up with some care—
Witness.—The questionnaire had probably been drawn up before we gave leases at all. It is issued generally to everybody looking for a lease.
1960. Deputy Fitzgerald-Kenney.—Do you know who drew it up?—I do not know, but I imagine it would have been drawn up by officers in the Department.
1961. And you saw it? You are familiar with it?—Yes.
1962. Do you approve of it?—I do.
1963. You think it is a sensible document?—I do.
1964. And are these queries that are put in it queries that you think ought to be answered?—Yes.
1965. Now, in this case they were not answered. Is not that so? The expert was given to you to begin with—Mr. Norman—and when he dropped out there was no expert. Is that the normal procedure of your Department, that a mining lease would be granted to persons who have no expert opinion behind them and are not themselves experts?—The Department would be prepared to give a lease to persons who had not themselves any technical qualification if it had reason to believe that they would hire the necessary technical advice.
1966. As a general rule, would not the Department insist on the hiring of expert advice and on being satisfied as to the qualifications of the advice before they granted a lease?—Not necessarily.
1967. I see. So, therefore, the Department can regard this particular part of the questionnaire as a dead letter?—No, I do not agree at all. They said they would hire the necessary technical advice. That is not a dead letter.
1968. Did you ever at any time ask them as to whether they had hired such advice or did you make any endeavour to get them to hire expert advice?—The covenants of the lease deal with that.
1969. My question is: have you ever made any effort—I am not asking you about your powers—to insist on their getting expert advice?—My answer is that it was not necessary to ask them that question directly. We could have got the necessary information by way of the returns under the covenants of the lease.
1970. You got it?—We could get it. We had sufficient power under the lease.
1971. You waived, in other words, this undertaking of theirs to obtain expert advice. Would that be done normally in your Department? Is that the normal procedure?—What is that?
1972. To waive the undertaking to get expert advice?—We did not waive it.
1973. Have you done it? Have you taken any steps to ensure that they would obtain this expert advice?—That question would arise, if at all, on examination of the returns furnished to the Department by the lessees and an examination of these returns was proceeding when this Committee was established.
1974. It would arise when you got the returns. Who is to judge as to whether those returns would have shown whether there was expert advice or what it was? I should like to understand that last answer of yours?—The Department, on the examination of the returns, would see whether they were working the deposit or not.
1975. I am not on the question of working the deposit. I am now on the question of expert advice because you know, you say, this is the general practice of your Department?—The question of expert advice is a matter for the lessees, to see that they comply with the conditions of the lease. They cannot comply with the conditions of the lease unless they get expert advice. If they do not comply with them, it can be cancelled as has been done in a couple of other cases.
1976. It has not been done in this case?—No, because the time has not yet arisen to do it.
1977. Then we come to the adequacy of the capital. There was no investigation as to whether this £200 was or was not adequate?—No. I should qualify that by saying that the question of whether the £200 was adequate was considered and it is referred to in some of the minutes which you have.
1978. I am not aware that the minutes contain any reference to it. You are more familiar with the minutes than a member of the Committee sitting casually here can be. There were to be four workmen constantly employed?—Yes.
1979. You agree with Mr. Ferguson that that was the very essence of this lease, that one of the main objects in granting this lease was that there was to be employment?—Yes, it was one of the main objects.
1980. The total sum available for hiring experts, paying workmen and doing borings was the sum of £200, which you say you consider adequate?—Is not that so?—I do not accept your proposition that the total sum available was only £200 because the Department could reasonably assume, in the case of lessees of a certain standing, that if further money were required they would provide it.
1981. You have given them the lease on the basis that they will put £200 into it. Is not that the foundation of the lease?—Not necessarily. I do not accept that at all.
1982. What is the meaning, then, of saying that the amount of capital available is £200?—That is the application. I should draw your attention to the conditions of the lease. It is their business to see that the covenants of the lease are observed. If they do not observe them they run the risk of having the lease cancelled.
1983. They say to you: “We are going to put £200 down.” Do you think that if they showed you that they had spent £200 that you could morally take proceedings against them to enforce the covenants?—Certainly.
1984. Did you draw their attention to that fact?—I cannot say their attention was specially drawn to it. I should not think it would be necessary.
1985. So, therefore, as far as this matter is concerned the amount of capital they were putting up was £200. They said they would put that up, but that had no effect at all?—What is much more important than anything they said in their application is the obligation they accepted in the lease.
1986. In other words, the £200 became, as far as you were concerned, a dead letter?—I do not know what you mean by a dead letter.
1987. The matter of whether the £200 was there or had been there?—What was important to us was to see that the covenants of the lease were carried out.
1988. Quite irrespective of this named sum of £200?—Quite irrespective. If the £200 were not sufficient the lease imposed an obligation on them to spend more.
1989. And constantly to keep four men employed. You know perfectly well, I presume, that £200 would not keep four men constantly employed?—Not for any length of time.
1990. Not for two years?—Not for two years.
1991. We shall just come to some of the other matters you dealt with. Take this grant of the lease. Will you please keep your mind off the physical act of affixing the Department’s seal. That, we, know, can be done under the Ministers’ and Secretaries’ Act by the Secretary of the Department. As distinct from signing or sealing, has it been the practice of your Department, without consulting the Minister at all or getting any direction from the Minister, to issue licences under this Act?—I have already given evidence that all those leases under the Mines and Minerals Act were given without consulting the Minister—without submitting any individual cases to him.
1992. And without any submission to him for his signature?—Without any submission to him for his signature.
1993. Or his approval?—No.
1994. Are you or are you not aware— we had it in evidence yesterday—that the Attorney-General for the Irish Free State at one time advised that the Minister’s personal flat must be given before any lease is made?—Well, I heard the evidence that was given yesterday to that effect.
1995. But do you yourself know it to be correct?—Yes. I have seen a copy of that Attorney-General’s opinion.
1996. And is it to that effect?—Yes— substantially.
1997. So in granting this and the other leases your Department has been acting in the teeth of the opinion of the Attorney-General?—Even the Attorney-General is not infallible. He expressed a certain view. There is another view. The Department’s legal adviser does not hold that view. The Department, in the course which it adopts, is acting generally, I think, in accordance with the advice of its own legal adviser.
1998. Is the legal adviser to the Department a civil servant?—He is.
1999. Is it the ordinary thing for a Department-I am getting startled more and more every minute—to consider that the opinion of its legal adviser should overrule the opinion of the Attorney-General? Is it the practice of your Department, when there is a clash between the opinion of the Attorney-General and that of the legal adviser to your Department, to turn down the opinion of the Attorney-General?—I cannot say that it is the practice of my Department. The question rarely arises.
2000. Occasionally the Attorney-General is regarded with some respect, is that it
Parliamentary Secretary to the Minister for Finance.—The Attorney-General of the previous régime!
Deputy Fitzgerald-Kenney.—The Attorney-General of the previous régime, in spite of Deputy Flinn’s remarks, is one of the leaders of the Irish Bar.
Chairman.—Those asides would be more properly ignored.
Deputy Fitzgerald-Kenney.—I do not think that those sneering remarks are at all justified.
Witness.—With all respect, this is a difficult question, and I am very reluctant to tread on hallowed ground, but as a man who has some responsibility, and has to deal with questions of that kind from day to day, I might perhaps be permitted to express the view that there is a great deal of very solid argument in favour of the contrary view, which, very briefly, is that in the absence of any direct statutory requirement that a particular act shall be done by the Minister personally-by that, I mean in writing under his hand—the question as to how far he has to discharge his functions personally or through his officers is one that should be determined by prudence, having regard to the nature and importance of the particular functions in question. I might also mention, if you will allow me, that there are no court decisions on this very difficult question.
2001. Deputy Fitzgerald-Kenney.—We are perfectly aware of that.
Witness.—The practice to which you refer is not confined to one Department, and is not new. It is a practice which generally has been observed since the establishment of the Irish Free State.
2002. The granting of State property is an important matter, is it not?—Well, “important” is a relative term. A junior officer of my Department might regard a matter as important which might not be important in my eyes from one point of view. It may be said that everything I deal with from morning until night, from the beginning of the year to the end, is important, but they are not all of equal importance.
2003. But taking it per se, the making of leases of State property is a matter of considerable importance?—It is.
And it has been entrusted by the State to a Minister?—To two Ministers.
2004. Yes. It has been entrusted to the Minister for Finance and the Minister for Industry and Commerce?— Yes.
2005. And although the Oireachtas has taken this precaution it is in fact the secretaries to Departments who are to perform this function? That is your view?—Perhaps the Chairman would allow me to answer that question by asking another. The Oireachtas passes a large number of Statutes every year, and under almost every one of those Statutes there are various functions conferred on the Minister in his corporate capacity. Does the Oireachtas think, when those Statutes are being enacted, that every single thing to be done under every Statute must go to the Minister himself? Administration would be absolutely impossible if that practice were adopted.
2006. You think it would be absolutely impossible?—I think the whole machine would be brought to a standstill in 48 hours.
2007. That may be a reason for altering the law that minutes should be sent up to the head of the Department wherever his personal consent is required under a Statute? That may be a reason for altering the law?—If your interpretation of the law is correct. I want to make it clear that I am not accepting that interpretation of it.
2008. Let us come to this matter of the making of grants to members of the Oireachtas. I quite agree with you that the propriety of that is not a matter for the civil servant; it is a matter for the head of the Department. I suppose you would not put forward the view which we had here the other day that the head of a Department would be rather impertinent if he over-ruled the decision of his permanent officials? You would not accept that?—Not at all.
2009. Deputy Geoghegan.—The view put forward was not that it would be an impertinence. Of course that is like some of the other statements made by the Deputy Fitzgerald-Kenney—utterly reckless statements. The use of that phrase was utterly reckless. I do not mean that it was intentional, because I think that Deputy Fitzgerald-Kenney is probably not following the matter closely enough. It was merely wanton and reckless.
Deputy Fitzgerald-Kenney.—I took down the words which the Deputy used— “it is no part of the Minister’s duty to turn down paid officials.”
Deputy Geoghegan.—I did not speak of impertinence.
2010. Deputy Fitzgerald-Kenney.— Impertinence is my understanding of it.
You do not consider that any insult would be offered to you, or that it would be in any way unreasonable if you sent up a minute or a file to the Minister with a ruling on it, and the Minister did not agree with your ruling, but overruled it?
Witness.—I should welcome an occasional display of that kind, because I should feel that I had not quite the same measure of responsibility if I knew that another intelligence, superior to mine, was exercising itself fully on everything I submitted.
2011. Apart from this lease, do you know of any lease or contract entered into with a member of the Oireachtas— I am not now talking of firms in which a member of the Oireachtas is a shareholder or director, because that is on a different footing, but of personal contracts or leases with members of the Oireachtas?—Are you speaking of a mining lease?
2012. Any lease, State Lands Act or mining lease?—I am informed that there was one lease which has been given to Senator Comyn, and there is another lease in which there are six lessees, of whom one is a Deputy.
2013. What is that later lease?—For a slate quarry.
2014. Deputy Dowdall.—There is the question of adequacy of capital. I understood from Mr. Lyburn yesterday that really what was wanted was that something should be done and that large capital was not necessary for the purpose of exploring or prospecting gold such as you get in the County Wicklow. You do not want any large capital for that. In fact he went so far as to say that some prospectors in other countries went on and were grub-staked by somebody. From that point of view are you in agreement with Mr. Lyburn?—Yes, I agree with Mr. Lyburn.
2015. There has been some talk of short-cuts being taken in the granting of this lease. What time elapsed between the application and the granting, approximately?—The application was made in March, 1933, and the lease was given on 1st November, 1934.
2016. There is no short cut in that. It would be very extraordinary if they took any longer to give it. I think the Department would be guilty of gross negligence if they took longer?—One of the suggestions made was that the issue of a letter three months after we got the application was an example of remarkable celerity.
2017. Parliamentary Secretary to the Minister for Finance.—You do not accept that standard?—I do not accept that standard.
2018. Deputy Dowdall.—There are a whole lot of other businesses that come under the scope of your Department such as quotas, people looking for licences, people expecting to get in goods through the Customs, and they come to your Department and press you to get the work done for them quickly for their convenience. I have done so myself with regard to getting in goods. Is not that so? —That is so.
2019. I presume that Senator Comyn and Deputy Briscoe did not go to sleep after they made the application, and that they were constantly before your Department to hurry up, in the same way as anybody else would go on matters connected with his business. Is that so?—As far as I can ascertain from the files, and the records have been circulated here, they were in on a number of occasions between the time the application was made and the time the lease was granted.
2020. With the idea of getting you to hurry on?—Presumably.
2021. There is nothing objectionable in that, is there?—Everybody does it anyway.
2022. Deputy Fitzgerald-Kenney.— People who are not Deputies have not that opportunity?—They have. I disagree with you entirely. They have the opportunity and they take full advantage of it.
2023. Deputy Dowdall.—Then there is the question of the geological expert. I understood from Mr. Lyburn yesterday that he did not attach a great deal of importance to that in the matter of a prospecting lease. Of course, it would be a different matter altogether if the company were formed and they were putting down plant, and all that sort of thing. They would want a fully qualified engineer or geological expert but, if I understood Mr. Lyburn correctly, that would not be necessary in the case of a prospecting lease for alluvial gold deposits in the beds of the rivers in County Wicklow. Do you understand that?—I understand that. I should agree with it. I might draw your attention to a provision in the lease that the reversionary lease was conditional on the Minister being satisfied that the lessees possess the financial and technical resources necessary for the full development of the undertaking. That is at the end of the two years.
2024. Then, as to the question of the employment of four men, I understood Mr. Lyburn to say that the putting into the lease of the condition that they were to employ four men was really for the purpose of seeing that something was done; that there was some effort to get through and do something. Is that correct?—That is correct substantially.
2025. Deputy Fitzgerald-Kenney.—On the question of sitting after to-day I suggest that we do not sit next week, that we sit the week after next and that we have all the witnesses that we want duly summoned and ready so that we may. I hope, manage to finish that week. That is to say, that notice must be given to Mr. Heiser and Mr. Norman to be present. Of course, others may turn up, but we may possibly be able to finish. I do not think there would be any advantage in coming here next week and discovering that these gentlemen were not here. Personally, I have spent a fortnight here in Dublin, except for getting home at the week-end, for this Committee and during one week of that nothing was done. It is inconvenient for me to be here next week and I propose that the Committee should adjourn to-day until Tuesday or Wednesday week.
Deputy Dowdall.—I second.
Parliamentary Secretary to the Minister for Finance.—I appreciate and sympathise with the point of view put forward by Deputy Fitzgerald-Kenney. I think we might say Tuesday week.
Deputy Good.—I could not attend in the morning, so perhaps you will make in the afternoon.
Agreed: That the Committee, on the termination of its sitting, adjourn until 3 p.m. on Tuesday, September 24th.
Chairman.—Do I take it that the Committee will sit again this afternoon?
Parliamentary Secretary to the Minister for Finance.—Deputy Good, I understand, finds it inconvenient for him to sit longer than half-past one, but he will be here in the afternoon. I think we will be able to have a quorum in the afternoon.
Chairman.—You cannot count on me, because I have a meeting at 3 o’clock, and I question whether, at the sitting this afternoon, you will have a quorum.
Parliamentary Secretary to the Minister for Finance.—Let us see, at any rate, whether we will have a quorum. The object is to try and finish with this witness and then get a clean run. We might, if necessary, sit on now for another half-hour. I think we will have a quorum when we meet at 3 o’clock.
Deputy Fitzgerald-Kenney.—When we get through with this witness to-day we will hardly start with the Minister this afternoon.
Parliamentary Secretary to the Minister for Finance.—I am with you in that.
Deputy Geoghegan.—It is the intention to adjourn at the end of Mr. Leydon’s evidence to Tuesday week?
Deputy Geoghegan.—Mr. Leydon can come back at 3 o’clock, I assume.
Mr. Leydon.—I am in the hands of the Committee.
Adjourned for luncheon; sitting to be resumed at 3 p.m.
Parliamentary Secretary to the Minister for Finance.—I propose that Deputy Good take the Chair.
Deputy Geoghegan.—I second.
Deputy Good took the Chair.
2026. Acting-Chairman.—Now, Mr. Leydon, the lease that has been granted and that we have been discussing is a prospecting lease, I understand?—So I am advised.
2027. And what work did you anticipate, when you granted that lease, that the promoters would undertake?— Generally, that they would prospect for gold in the area covered by the lease.
2028. That they themselves would do the prospecting?—I do not mean to convey that I understood they themselves would go down, take off their coats, put on overalls and top boots and do the work; but I understood that they would be responsible for having the work done.
2029. One of the first things they would do, Mr. Lyburn informed us, was the boring. Of course that would be an essential thing, I take it?—I did not gather that Mr. Lyburn expressed the view that they would necessarily have to carry out boring for this particular prospecting. In this case the gold was found in streams and it would not be necessary to do any boring to find it; it would rather be, I think, what they call panning.
2030. I thought some borings were undertaken on the site by the promoters? —That I could not say.
2031. I think there was evidence to that effect?—Mr. McGilligan said there was, but the Department had no information on that point, so far as I am aware.
2032. You do not know anything apparently about the work they were to undertake?—Except in so far as there was a condition imposed on them by the lease.
2033. Assuming that they had to do any boring, Mr. Lyburn told us that the simplest and cheapest boring machine they could purchase would cost £200. You heard him say that?—I heard him say that.
2034. That would exhaust the fund that was provided for capital—the one machine. How did you intend, then, that the other obligations under the lease would be carried out?—I am not prepared to accept the proposition that that would exhaust all the money available for development. I should like again to draw attention to the fact that the application form was submitted as a basis for discussion. This is the application form which was prepared generally for the purpose of applications for mining leases. It was intended by that form to get quite a lot of information, some of which might be useful and some of which might not. When the negotiations take place, and particularly when a lease is completed, the important thing is not what is said in the application, but what is in the lease. If I might put it this way, suppose the lessee did not comply with the condition in the lease about employment or any other condition, and we under the terms of the lease proceeded to void the lease for that reason, while I am not a lawyer I cannot conceive any court refusing to void the lease simply because they stated in an application, which had been by that time disregarded, something which was not consistent with some obligation they undertook in the lease.
2035. This was in the nature of a preliminary lease. There was a prospecting lease for two years and something was to be done under that?—Yes.
2036. I want to get really what you had in mind would be done when you issued that lease?—If you refer to the actual lease, I will draw your attention to clause 9 (b):—
“That the demise hereby made shall at the option of the lessor cease and be void and of none effect if the Lessees shall not within three calendar months from the date hereof proceed to make search and trial for the substance hereby demised with not less than four able-bodied miners or shall cease at any time hereafter to make such trials and searches for the space of six calendar months in any year.”
That was what we contemplated.
2037. You will notice there the words “search” and “trial.” Of course your expert has told us that practically one of the first things would be the boring, and to do the boring they would require a boring machine?—I am afraid I did not get that impression from what Mr. Lyburn said. What I think he said was, “if boring was to be carried out.”
2038. I think he went so far as to say that boring would be necessary?—I did not get that impression.
2039. Deputy Fitzgerald-Kenney.— That is my impression too, that boring would be necessary. He can be asked. It was certainly my impression.
Mr. Lyburn.—No. I think you misinterpreted me. What I said in answer to a question by Deputy Fitzgerald-Kenney as regards boring was not quite that. He asked what would be the cost of a machine to do certain boring and I qualified that by saying you could get a small machine for £200.
2040. Acting-Chairman.—A very small machine?
2041. Deputy Fitzgerald-Kenney.— You said boring would be necessary in the search for gold?
Mr. Lyburn.— We would have to qualify what the word “boring” meant. “Boring” can be understood in two directions—by a machine or by hand.
2042. Acting-Chairman.—I think it was a hand borer you mentioned.
Mr. Lyburn. —I replied to a question asked by Deputy Fitzgerald-Kenney as to what the type of machine was that would be necessary.
2043. Deputy Fitzgerald-Kenney.—Did you say that to investigate in this place as to whether there was gold or not, boring would be necessary?
Mr. Lyburn.—No, I do not think so.
2044. Acting-Chairman.—I understood you to say that.
Mr. Lyburn.—I meant prospecting in trials.
2045. Deputy Fitzgerald-Kenney.—You could prospect without any boring?
2046. Acting-Chairman.—We have had evidence that there was some boring done on the site.
Mr. Lyburn.—That I cannot tell you.
2047. Acting-Chairman.—You say, Mr. Leydon, that all these things were carefully gone into before this lease was granted. You will notice in the clause you have read “shall not within three calendar months from the date hereof proceed to make search and trial.” I think in the ordinary course one would read into that “borings.” However, we will leave that for the moment. Assuming that search and trial had to be done, could any search of any importance be done for a sum less than £200?—That is a type of question to which I would hesitate to offer any definite answer. But even assuming that it would cost £200 or £2,000, what is there impossible in the assumption that the lessees might be able to get boring done under some contract that might not require payment for a considerable period, or a contract that might require a boring company to accept payment in shares?
2048. I took it from your evidence that all these things were carefully enquired into and that you had the assistance of the skilled advisers in your Department so I take it that search and trial were considered before you put that sum of £200 in this document here?—I am afraid that I cannot recollect any evidence that search and trial were carefully gone into by the Department.
2049. Then you cannot give us any evidence which will show that proper care was not taken. You have told us here that proper enquiry was made—as full enquiry as is made in every case. That comes from the statement of your evidence. I want some proof of the fact now that this sum of £200 that is inserted in the lease—and before its insertion I want some evidence as to how you apportioned that to meet the other obligations under (b) (a) and (c)?—I will be very glad if you refer me to the clause in the lease in which the figure of £200 is inserted.
Deputy Fitzgerald-Kenney.—It is in the application for the lease.
2050. Acting-Chairman.—Yes, I see it here in the original application?—It is in the application, not in the lease.
2051. Well, you approved of the application when you granted the lease. You granted the lease on practically the same terms. You and I are ordinary business men. We are not lawyers. You approved of the terms and you issued the lease. It is inserted in the application on which the lease was issued, so I may take it that the lease is in approval of the terms of the application?—Not necessarily. What I say is that what really matters is contained in the lease. It is this lease that matters, not what is in the application, if there is any inconsistency between them.
2052. May I put that another way. When you got this application with this clause in it, that they proposed to expend £200 in prospecting, did you enquire into that sum and see that it would be sufficient for the works to be done?-No, sir, we did not, because it was not in the opinion of the Department necessary having regard to the conditions in the lease. The conditions in the lease were sufficient. It is the responsibility of the lessees to comply with the conditions of the lease and if £200 is not sufficient for that purpose the obligation is on them to provide more on such conditions as may be required.
2053. But you did not raise any question on it?—The question was raised but, in a departmental minute which has been circulated to the Committee, the conclusion was arrived at that it was not necessary to deal with that. The conditions were in the lease and we were in a position to enforce those conditions and they would in all probability be able to provide any additional capital required,
2054. Deputy Fitzgerald-Kenney.— Where is that in the lease—that they were to provide any additional capital? —I did not say that was in the lease.
2055. I thought you did. It was my mistake. I must have taken you up wrongly. Would you mind repeating what you did say in reply to the last question put by the Acting-Chairman?
Parliamentary Secretary to the Minister for Finance.—I think the phrase about the lease was that they could enforce it conditions.
Deputy Geoghegan.—That point can be got from the stenographer’s notes.
Witness.—The conditions are in the lease and these conditions plainly impose an obligation on them. We are in a position to enforce the conditions. We had reasonable grounds to believe that if additional capital were required they would provide it.
2056. Deputy Fitzgerald-Kenney.— What were the reasonable grounds?— Generally, the standing of the two men.
2057. Acting-Chairman.— Now, you did not raise any objection to the proposal to spend £200 in prospecting. If the officials of your Department thought that that sum was inadequate surely you would have raised it with the promoters? — I think it is a fair inference from the conditions of the lease that we would. It is raised there indirectly and they have accepted the obligation to employ four men continuously.
2058. Deputy Fitzgerald-Kenney.— It is rather sharp practice?— I do not agree.
2059. Parliamentary Secretary to the Minister for Finance.— On the part of whom?— These were two keen business men and there was no reason to feel that they did not appreciate that matter.
I would like, Sir, to ask on whom it is suggested sharp practice was involved?
Deputy Fitzgerald-Kenney.— I say that if that proposal is made—that proposal is definite—it is proposed to expend up to a maximum of £200, that then you suggest to them that it is not adequate and that they will have to put in more after the lease has been entered into——
Deputy Geoghegan.—That statement that Deputy Fitzgerald-Kenney has made is in the proposal of the 19th June, 1934.
Deputy Fitzgerald-Kenney.— I will quote the other one: The proposal of the 23rd March, 1933. In that document the word “maximum” is used. That is in the proposal of the 23rd March, 1933.
Deputy Geoghegan.—The proposal of the 19th June, 1934, contains these words:—
“Proposals to include that and other work to be done are as follows.”
And then there is the figure of £200.
Deputy Fitzgerald-Kenney.— I have got the statement here in the proposal, “a maximum of £200 for prospecting.” Deputy Geoghegan should look at the earlier file.
Deputy Geoghegan.—The date of the application was the 19th June, 1934.
Deputy Fitzgerald-Kenney.—It is on the same file. It is on the last page of the file.
Deputy Geoghegan.—And, of course, you can tell the Committee, Mr. Fitzgerald-Kenney, that the lessees, having executed the lease, are bound by every covenant in the lease.
Deputy Fitzgerald-Kenney.—And there is no provision in the lease to expend anything more than what they said as a maximum.
Deputy Geoghegan.— They are bound bound to perform every covenant, no matter what it costs.
Deputy Fitzgerald-Kenney.—And the penalty is a voiding of the lease.
Deputy Geoghegan.—You know that perfectly well. You are not like some of the other members of the Committee.
Deputy Fitzgerald-Kenney.—I know perfectly well that there is a special penalty for non-performance of a covenant and nothing more.
Parliamentary Secretary to the Minister for Finance.—I still want to know who it is suggested has indulged in sharp practice.
Deputy Fitzgerald-Kenney. — I have made my statement as to precisely what I mean.
2060. Deputy Geoghegan.—Have you before you, Mr. Leydon, a print transscript of the lease dated 1st November, 1934?—I have.
Chairman.—I have before me a document dated 23rd March, and in it it is proposed to expend up to a maximum of £200 even if no results are obtained.
Deputy Geoghegan.—But there is a later document dated 19th June, 1934, which you will find on the same file, much nearer the lease.
Chairman.—It contains the maximum you spoke of, Deputy Fitzgerald-Kenney.
Parliamentary Secretary to the Minister for Finance.—That document is rendered obsolete by the subsequent document.
Deputy Geoghegan.—Nobody, attaches the least importance to that document, and I think you will not if you look at it as a business man.
Deputy Fitzgerald-Kenney.—That is the original document which was modified because Norman dropped out.
Deputy Geoghegan.—If there is any proposal for this prospecting lease, that proposal is in the document dated 19th June, 1934, which has been circulated to the members of this Committee and not in the earlier document between different parties.
Chairman.—I have one dated 25th April.
Deputy Geoghegan.—Go on a bit further.
Deputy Fitzgerald-Kenney.— “The financial resources available to enable prospecting and developing work to be carried out are as follows: £200.”
Deputy Geoghegan.—I read that. Should you not withdraw what you said about the maximum?
Deputy Fitzgerald-Kenney.—The maximum was in the original; it is not in that.
Deputy Geoghegan.— This is the original.
Deputy Fitzgerald-Kenney.—The maximum was in the first document. In the second document “maximum,” I grant you, drops out, but the figure of £200 remains.
Deputy Geoghegan.—You know—some of the other members may not—that there is no first or second document. This document which you call the first document is Norman, Comyn and Briscoe, and then Comyn and Briscoe come with their document——
Deputy Fitzgerald-Kenney.—And. the figure £200 remains the same.
Deputy Geoghegan.— ——and your phrase about maximum is not contained, and I think you ought to have the grace to say so.
Deputy Fitzgerald-Kenney. — I am aware that it is not.
Deputy Geoghegan.—Why not have the grace to say so?
Deputy Fitzgerald-Kenney.—I have said it and the figure £200 remains.
Parliamentary Secretary to the Minister for Finance.—But the maximum has been taken out.
Chairman.—I think it is clear that the money it was contemplated should be spent was a sum of £200. The wording is: “The financial resources available to enable prospecting and development work to be carried out are as follows: £200,”
Deputy Geoghegan.—Read on, Sir,
Chairman.—“We have at our disposal the following scientific staff, etc.”
Deputy Geoghegan.—It is not £200 including that. “We have at our disposal the following competent scientific staff for making inspection, etc.”
Deputy Fitzgerald-Kenney.—“Making arrangements.”
Chairman.—I think we may pass on from that.
2061. Deputy Geoghegan. — I think that is now fairly well cleared up and I think also that Mr. Fitzgerald-Kenney has, in a clouded way, admitted that every covenant in this lease had to be performed, regardless of the amount of money it might involve the lessees in. You have that document before you, Mr. Leydon. It is expressed to be made between the two Ministers and Senator Comyn and Deputy Briscoe, and then, in the operative part, it says:—
“WITNESSETH that the Lessor in virtue of the powers conferred on him by Section 11 (2) of the Mines and Minerals Act, 1931, and all other powers enabling him and in consideration of the rents and agreements. . .”
Does that reference to sub-section (2) of Section 11 identify it as being a take-note or prospecting lease?—I think it is quite clear that it does.
2062. So that any controversy or suggestion that this is a mining lease and is not a lease under sub-section (2) is, in your view, I take it, expressly negatived on the face of the document, because the document is expressed to be made under sub-section (2) of Section 11?—Yes, that is my view.
2063. It proceeds to say:—
“TO HOLD the same to the Lessees from the day of the date hereof for the term of two years PAYING therefor to the Lessor the yearly minimum or dead rent of FIVE POUNDS in advance without any deduction whatever, the first yearly payment of such minimum or dead rent to be made . . .”
Are you satisfied—you are the Secretary of the Department—that there was an unconditional obligation undertaken by the lessees to pay that rent?—Undoubtedly.
2064. It goes on :—
“and also YIELDING AND RENDERING to the Lessor Royalty of One twenty-fifth part or share of the value OF the minerals which shall be raised or gotten or be obtained . . . .”
Similarly, there was an unconditional obligation as to the share of the royalties. It then continues:—
“PROVIDED ALWAYS and it is hereby AGREED and DECLARED that the yearly payment of the said minimum or dead rent on the days on which the same become due . . . . PROVIDED ALWAYS that such last mentioned payment shall not in any case be less than the rent and the share of minerals or value thereof and Royalties hereby reserved AND the Lessees hereby jointly and severally COVENANT with the Lessor as follows:—
1. To pay the said rent and Royalties in manner aforesaid, and to pay and discharge all present and future rates taxes assessments imposition and outgoings whatsoever imposed upon or charged upon the said premises hereby demised or any metals or minerals got therefrom.
2. Not to commit any unnecessary spoil damage or waste in or upon the land herinbefore described and to fence round or in the event of the same . . . .
3. To constantly keep and employ on the said lands at least four able-bodied and experienced miners and to supply them with all proper tools and appliances.”
Is there any collateral document of any sort that you are aware of that governs that clause, and says that they are only to keep them employed up to a certain wage bill?—No, there is no such document.
2065. It goes on:—
“With all convenient speed after getting and raising of any gold and silver or substances containing gold or silver . . . .”
setting out what they are to do.
“5. Within three days next after the expiration of each calendar month during the continuance of this demise to deliver to the Lessor a true and fair account in writing containing particulars of the quantity of all minerals (and of all assays thereof) which during such month shall have been respectively gotten and raised . . . .
6. Previously to the removal of any of the said minerals from the said land to give seven days notice . . . .
7. To keep a correct account of the quantity of all minerals . . . .
8. Within ten days next after the said First day of May and First day of November, and also within ten days after the expiration or other sooner determination of the said term . . . . deliver to the Lessor or his Agent a true and fair account . . . . of all substances . . . . and the price or prices at and for which the same respectively shall have been sold . . .
9. Not to give grant underlet or assign over or part with the possession by way of licence or otherwise of these presents or the several premises hereby demised or any part thereof respectively or the right and interest of the Lessees therein by virtue hereof to any person or persons whomsoever without the consent of the Lessor in writing first had and obtained . . . .”
Now you have already announced that you are not a member of the legal profession, but, in your opinion, as an experienced official, does that clause 9 give the Minister reasonably extensive control over the future of this prospecting lease and any option under it?—I think it gives effective control over any question of the disposal of an interest in the lease.
2066. I put this to you now: Have you given the consent contemplated by Section 9?—No, we have not. We have not been furnished with any sub-lease or licence within the meaning of Section 9, nor have we been asked to consent to any sublease or licence.
2067. And as you yourself have pointed out, the grant of a reversionary lease or the exercise of the option, whichever you care to call it, that is made conditional on your Minister, or your Department, being satisfied that in substance the various clauses and conditions of the lease are being carried out?— Yes.
2068. I suppose you are aware that the courts of law will not allow a landlord or a lessor to enforce every letter of his lease?—I understand that generally.
2069. Suppose there is a condition in a lease that if the rent is unpaid for 21 days after the gale day the landlord may re-enter, I suppose you are aware that he cannot re-enter on the 22nd day and absolutely destroy the lease: that the courts will control him?—Yes, generally.
2070. And that similarly, if there is a covenant in a lease that if a person is to keep a house in repair, and so on, and that he leaves a slate off for a month, and that if there is a condition that the landlord can re-enter because of that, you are aware that the courts will control him: that if he is adequately protected by damages, or otherwise, the courts will control him and will not allow him to void the lease?— Yes, I shall accept that.
2071. I suppose you have enough general knowledge to realise that you would not be permitted, even if you wished, to enforce by power of re-entry and voidance every condition in that lease literally?— We are generally aware of the difficulties of enforcing the conditions of a lease literally. I might, perhaps, add the consideration that in a matter of this kind the State, I think, should aim at acting as a model landlord, as the State is supposed to act as a model employer and to be a model in every activity on which it embarks.
2072. I am glad you added that. You may not possibly be aware that even great municipal corporations which have estates as many corporate bodies have, such as Drogheda, Waterford and Dublin, there is expected from them a high standard as regards their attitude towards their tenants?—I think that is true generally of public bodies, and that Government departments are not expected to act in a way which could be described as harsh.
2073. The phrase “sharp practice” was used by Deputy Fitzgerald-Kenney. The Parliamentary Secretary to the Minister for Finance tried to get the Deputy to state what he meant, but I could not quite follow his answer. Has there been any sharp practice in connection with this prospecting lease or take-note, at any stage?—Not so far as the Department is concerned.
2074. As regards the actions of the Minister personally, and of his actions through his subordinates, it is, I think, correct to say that under the Ministers and Secretaries Act, 1924, Ministers are made responsible under that statute for various Departments of State?— Yes.
2075. Would it be physically or humanly possible for the Minister to carry out his functions under that Act directly, all his functions?—It would be absolutely impossible.
2076. Would it be possible for him to have even personal knowledge of the carrying out of all the functions of his Department?—Except in the most general way he could not have personal knowledge of them. He could not have personal knowledge of the decisions arrived at on all the various individual letters and applications of one kind or another that come to the Department. If it be realised that in the Department of Industry and Commerce there is a staff of over 1,800, it is quite obvious that the Minister could not have personal knowledge of what each and every one of them is doing from day to day.
2077. I put it to you as a high public official that in the nature of things it may be fairly said that you must construe the statute as implying that the Minister will act himself through his subordinates, he having Parliamentary responsibility for his subordinates ?—I think that is the way in which these statutes must be construed.
2078. I am not putting that to you now merely as a matter of law, but as a high public official?—As a public servant concerned with the practical problems of administration arising from day to day I think the only way in which a Minister can discharge the duties imposed on him is to discharge them through his officers and servants, the Minister accepting responsibility in Parliament for what they do. But apart from that general sort of parliamentary responsibility, I think that legally the ordinary rules of principal and agent should apply, and that if I decide something or some officer below me happens to decide something, that the Minister is bound by that decision. In giving that decision we are carrying out the functions of the Minister and the duties imposed on him by various statutes.
2079. May I put it in another way: that while the Minister cannot delegate his parliamentary or constitutional responsibilities for any act, that in the nature of things he must be at liberty to delegate the actual execution of most of his duties?—I think he must, subject to this: that under certain statutes there is a provision that the Minister must do certain things in writing under his own hand. I think that is the phrase used. Again, speaking as a layman I should draw a distinction between functions of that kind and duties and functions imposed on the Minister where that phraseology is not used. I think that where the statute requires that something must be done in writing under his hand, that in that case the Minister’s own personal decision is required. So far as I am concerned I should certainly submit such a matter to the Minister personally to get it in writing under his hand.
2080. Would you consider that your view is strengthened by the fact that certain statutes do expressly provide that an act is to be done under the Minister’s own hand? If a statute expresses that in one case that must be done and that in other cases it need not be done, would you grant that there is an implication that it is not required in the case in which it is not expressly provided for?— Yes, and that is why I draw the distinction between the type of case where that phraseology is used and where it is not used. I assume that the phrase I have referred to must mean something, and that it must have been put in for some particular purpose. If any other construction of the statutes is correct, then I can see no meaning whatever in that phraseology.
2081. I desire two or three more answers from you in the hope that they will get rid of the outrageous suggestion that I charged any Minister with impertinence for not following the advice of his officials. In the administration of this Mines and Minerals Act, is it reasonable, obvious and plain that much work of a technical character must be done, that is to say, that the geologist must bring his mind to bear, and that the lawyer must bring his mind to bear, when it is a technical thing of this nature, on the administration and working of the Act?—Yes.
2082. You have in your Department Mr. Lyburn, who gave evidence, and you have also a law adviser. Is the law adviser a member of the Irish Bar of at least 20 years’ standing? Do you know his standing?—I agree that it is at least 20 years’ standing.
2083. And for many years he has been, as law adviser, engaged in dealing with legal questions in your Department?— Since 1923 or 1924.
2084. If a question arises under the Mines and Minerals Act that involves a geological question I take it that he would be a bold Minister who would put his own view against the geologist’s?— I think he would be very rash.
2085. If it was an abstruse legal question that arose he would be bold, if not foolhardy, to put his opinion against the opinion of the law adviser?— Yes.
2086. Deputy Geoghegan.—I want to make it clear that that was what I conveyed. I did not suggest impertinence. I merely suggested that these are technical matters and that any Minister, whether Minister for Industry and Commerce or Minister for Justice, will follow the expert in these matters.
2087. Deputy Coburn.— I gathered from your evidence in answer to some questions put to you by the Chairman, that you do not charge Mr. McGilligan with making allegations against the officials in their personal capacity. Is that right?—I do not charge Mr. McGilligan with anything.
2088. The questions were put by the Chairman in such a way as would lead one to the conclusion that Mr. McGilligan did make definite charges against the officials. Do you agree with that ?—I do not know that it is quite fair to ask me to interpret the evidence of any witness.
2089. The Chairman put questions to you and said that owing to the atmosphere radiated from the Minister all through the Department you gave facilities to Senator Comyn and Deputy Briscoe that you would not give to others. That was the essence of the questions?—I cannot remember the exact phraseology of the questions, but I think the substance of what I said was that I was not aware of an atmosphere of that kind, and that the Department gave no facilities to Senator Comyn and Deputy Briscoe that they would not have given to any other parties similarly circumstanced.
2090. You qualified your answer to the Chairman by saying that in your opinion Mr. McGilligan was not making a charge. I put it to you that when Mr. McGilligan made his charges in the Dáil he did so as a result of facts in his possession, together with facts that came to his knowledge subsequently, which led him to the conclusion that these facilities were granted, because these two people were political associates of the Minister. Would you give it as your opinion that Mr. McGilligan was right in his conclusions? Would they be right or wrong? Would it be natural for him to come to these conclusions?—I do not know how I could possibly be expected to answer a question of that kind.
2091. With all respect, you have answered questions of that nature put to you by the Chairman in regard to Mr. McGilligan’s allegations, at least, if I read the meaning of your answers aright?—If you could get the actual questions and answers perhaps we could settle the difficulty. What I said, so far as I can recollect, was that any suggestion that Senator Comyn or Deputy Briscoe got facilities which would not be given to persons who were not political associates of the Minister in this case implied that civil servants in the Department dealing with the application were actuated by some sort of motives, by reason of the political association of the two lessees, and I said there was no foundation for any such suggestion. I think that is the effect of what I said, and I stand by it.
2092. Would you agree with me that Mr. McGilligan never made such an allegation against officials of the Department as was suggested in the questions put by the Chairman previous to the adjournment?—Do you mean in the evidence given here?
2093. Yes. The Chairman read out some of the evidence that was given by Mr. McGilligan yesterday, and put to you questions arising out of that evidence which would seem to suggest, in a very definite manner, that Mr. McGilligan did make the charge against the officials that they were lax and remiss in their inquiries regarding this application mainly because Senator Comyn and Deputy Briscoe were political associates of the Minister. Do you agree with the innuendo in the questions?— Mr. McGilligan gave evidence at great length, and amongst other things complimented Civil Servants in the Department of Industry and Commerce, and I think generally, on their courage.
2094. And properly so?— And on their probity and so on. At the same time, there was the suggestion, undoubtedly— and he said he could not arrive at any other conclusion—that Deputy Briscoe and Senator Comyn had been facilitated; that examination was not as critical as it would have been if they were members say of some other political Party He attributed that, so far as I could interpret his evidence, to a sub-conscious feeling on the part of Civil Servants, due to this atmosphere radiated from the Minister, that members of the Minister’s Party were to get some special facilities. It might be said that he did not formulate any charge against Civil Servants, but I think that implies definitely a charge, in so far as it is a charge to say that anyone does something unconsciously. As I explained this morning the whole concept of radiation of atmosphere, and so on, is extremely vague and intangible.
2095. You agree that Mr. McGilligan, having the knowledge he undoubtedly had at his disposal, previous to and after the granting of the lease, was entitled to come to that conclusion. I do not want to take advantage of you, but you have answered questions put to you by the Chairman without much hesitation, with all respect?—I do not think I answered questions of that kind. You are asking me to agree that Mr. McGilligan was justified in coming to a certain conclusion. How can I agree with that? In the first place, I cannot prevent anyone coming to any conclusion he likes about anything. What I said is that the facts do not warrant any such conclusion. I do not know what grounds Mr. McGilligan had for coming to the conclusion.
2096 Yes, but you answered the questions put by the Chairman—questions taken from the context of what Mr. McGilligan said—without qualifying, and I presume you have read all the evidence given by Mr. McGilligan yesterday?—I have not read it, but I was here.
2097. Therefore, you will agree that I am entitled to put the questions to you that I am putting in relation to what was at the back of Mr. McGilligan’s mind, bearing in mind, as you know, the facts that were at his disposal when he made this charge in the Dáil?—Whether you are entitled to put certain questions to me or not is a matter for the Chairman to decide, but the nature of my answers is a matter for myself. I cannot say what was in Mr. McGilligan’s mind either in his speech in the Dáil or in his evidence.
2098. But in your answers to the Chairman you definitely stated that there was more or less an allegation of political corruption made by Mr. McGilligan against the officials of the Department. That was on a particular question put by the Chairman without taking into consideration all the other facts relevant and having a bearing on that question? —I did not use the word “corruption,” and I do not think the Chairman used it.
2099. Well, it is a word that has been used and bandied about ever since this Inquiry started, and I presume that we must take cognisance of it. However, Mr. Leydon, under the Ministers and Secretaries Act, you heard, or at least you read, of Mr. McGilligan stating that there was a doubt in the minds of members of the then Executive in regard to their powers under that Act: for instance, the powers of extending to the secretaries and officials their powers of signing leases and so forth; that the then Attorney-General was asked for his opinion; that he gave it as his opinion that the Ministers had no power to transfer their duties under that Act to their secretaries or under-secretaries of the different Departments; and that that decision was considered very carefully by the Executive. I suppose you know that, as a result of that decision, Mr. McGilligan stated in his evidence that, subsequent to that decision, he always made it his business, in dealing with matters of public importance requiring his signature, to see that his signature would be affixed. Can you give me any instances where the former Minister for Industry and Commerce affixed his name to any document of real public importance previous to the coming in of the present Government?—May I make just one comment with reference to the introduction to your question. I do not think that Mr. McGilligan said that this question of delegation of functions was very carefully considered by the Executive Council.
2100. Mr. Chairman, would it be possible to get us a transcript of the evidence of Mr. McGilligan, because, unless my memory fails me, Mr. McGilligan emphasised the fact that the thing was so important that they had a meeting of the Executive to consider the matter?
Acting-Chairman.—I understand that everything of Mr. McGilligan’s evidence up to last night is with the printer at the moment and will not be available to-day.
Witness.—Well, I am not making a point about that. He certainly said it was raised by my predecessor and was carefully considered.
2101. Deputy Coburn.—His words were that he deemed it his duty, as a result of that decision of the then Attorney-General, to affix his name. Can you give us any instances of where Mr. McGilligan did affix his name?—I am afraid that I could not do so offhand.
2102. Oh, surely you could give some instances?—Mr. McGilligan went out of office in 1932, and at that time I was serving in another Department. If the Committee desires a search to be made, of course I can make a search for documents signed by Mr. McGilligan if I am given an indication of the sort of document required.
2103. Let me put the question in another way. Have you any recollection of having brought documents of an important character to Mr. McGilligan to be signed personally by him?—I was not serving under Mr. McGilligan.
2104. You have no recollection?—I never served under Mr. McGilligan.
2105. You do not remember any such documents?—I did not serve under Mr. McGilligan.
2106. But you are Secretary of the Department, are you not?—I was only appointed some time after the present Government came into power.
2107. Is there any official of the Department who could give us evidence on this matter?—On what particular point? What particular documents are you referring to—is it all documents signed by the Minister?
2108. Yes, and how many such documents?—I think it would be absolutely impossible to say how many. It must be remembered that every day in the week, no matter what Minister is concerned, there is a whole sheaf of documents to be dealt with by him, and it would be impossible to say how many or the nature of such documents.
2109. Do not mix the thing up. I quite understand that it would be impossible for a Minister to examine every document that comes before him or that comes into the office. I have quite sufficient commonsense to understand that that would be impossible, but I am putting it to you, on the evidence of Mr. McGilligan himself, that, as a result of the legal opinion given by the then Attorney-General, Mr. McGilligan deemed it his duty and saw to it as a responsible Minister at least that he would carry out the law, and that he would see that his personal signature was affixed to the documents of public importance. Now, you seem to be very emphatic in stating that the procedure adopted in this particular application was the same as that adopted in every application. That would seem to give me to understand that you had your finger on everything. Surely, a matter of that nature would not escape your notice?—No application was made in Mr. Gilligan’s time under the Mines and Minerals Act.
2110. I am not speaking of the Mines and Minerals Act. I am speaking of matters of public importance; not of the Mines and Minerals Act, but of whether or not the Minister can delegate his duties to a subordinate officer. I was not referring to mines and minerals. My reference was general, and, if you understand my question, as a result of the opinion expressed by the then Attorney-General, that Mr. McGilligan deemed it his duty, as stated in his evidence, to examine documents which he considered to be important and to affix his signature to such documents; in other words, that Mr. McGilligan felt it his duty that no document of any importance would leave any office under his control without his having some knowledge, let it be slight or great, and not, as suggested in this case, that this lease was made without any knowledge on the part of the present Minister?— Well, I can only say that if Mr. McGilligan gave evidence here on that point I am not in a position to controvert it. I never saw the instruction which he says he issued. I was not serving in the Department of Industry and Commerce at that time. It may have been a verbal instruction. The question of the importance of documents is a very difficult question. Importance, as I said this morning, is a relative term and I must take the responsibility of deciding on every question that comes before me, whether it is of sufficient importance or whether, for other reasons, it should be submitted to the Minister personally or whether it is a question that I should take the responsibility of deciding myself. Generally, if I might expand that a little, I conceive it to be my duty to submit to the Minister all questions of policy or all questions in which I have some doubt as to what particular course would be most in accordance with the Minister’s policy. I have to decide if the question is otherwise of sufficient importance to require the Minister’s personal decision or is a question in which, for some reason or other, he would be interested to know what is happening. But, on every paper that comes before me, I personally shoulder the responsibility of deciding whether it has to go to the Minister or not.
2111. Am 1 to understand now that no documents are submitted to the Minister? —I do not think that is a fair inference at all from the answer I gave. I said a moment ago that I send him sheaves of files every day.
2112. If of public importance? You know really what I mean by important documents?—Quite frankly, I am not sure. My conception of what is an important document is arrived at in the light of all the documents that come before me, day in and day out, and what I might regard as unimportant, in relation to all the other papers that come before me, you might regard as extremely important. I cannot help that.
2113. Might I ask you, Mr. Leydon, as a business man whether in your opinion this question of the granting of a lease to Messrs. Comyn and Briscoe was not of sufficient importance as to have the personal attention of the Minister?— Certainly not. I do not think it was of sufficient importance to require the personal attention of the Minister. I know what the Minister’s policy is and I know when these leases come before me what course will give effect to the Minister’s policy. I take responsibility for deciding that. I know what the Minister would do if I sent them on to him. There is no question what the Minister would do if these applications were before him. If I am satisfied as to what the Minister would do and if there is no other feature of outstanding importance in the matter, it is my duty to take the responsibility of deciding for the purpose of giving effect to the Minister’s policy.
2114. So the granting of this lease, in your opinion, is not of major importance? It is a mere trifle according to your evidence?—I did not say that. It is not a mere trifle, but I do not agree that it is of sufficient importance to necessitate my submitting it to the Minister for his personal decision.
2115. That is due to this radiation from the Minister that we have heard so much about?—I have denied the existence of the radiation.
2116. I put it to you, what would the ordinary plain citizen down the country think but that leases can be granted almost at will, according to your evidence, to every Tom, Dick and Harry who may have occasion to apply, that you will issue that lease, as undoubtedly has been the case in this instance, without any of the conditions governing that lease being put into effect, as has been proved here, in my opinion, and I think I am entitled to that?—You are entitled to your opinion.
2117. That proves, as far as I am personally concerned, that there was very little examination as to whether the conditions of this lease were carried out?— You are entitled to your opinion but I do not accept it at all. I do not wish for a moment to be taken as subscribing to what you say, that a lease can be granted at will to any Tom, Dick or Harry. It cannot.
2118. Now we have it definitely laid down by you as a very responsible officer of the Department that this lease was not of sufficient importance to warrant your bringing it under the direct notice of the Minister?— I told you that there had been 19 leases in all and none of them had been submitted for the Minister’s approval. In that respect it had been treated no differently from any other case.
2119. Will you tell us what was the nature of these leases?—You will find most of them in the papers laid on the Table of the House—11 of them. The others are prospecting leases.
2120. You heard Deputy Flinn dealing with the question as to whether certain fees had been paid by the lessees. Deputy Flinn put forth a suggestion that these were paid. Mr. McGilligan made the allegation that it was only as a result of solicitors’ letters that these moneys were paid. May I ask you was Mr. McGilligan right in his allegations?—What fees are you talking about?
2121. Deputy Coburn.—You know the fees because you quoted a letter to-day dealing with the matter from the file.
Deputy Fitzgerald-Kenney.—The cost of the lease and the rent?
Witness.—The costs of the lease?
Witness.—The dead rent and the costs in connection with the lease were not paid until some time in February or March. The Chief State Solicitor, who had prepared the lease, was naturally the person to collect the costs. Ordinarily that is so, but in February the Chief State Solicitor informed us that they had not been paid and on the 21st February I signed a minute to the Chief State Solicitor stating that “legal proceedings should be threatened if payment is not made in this case within seven days from to-day.”
2122. So Mr. McGilligan’s charges were correct in every detail in regard to that particular matter?—I am giving you evidence of the facts. I think it is for the Committee to say how far the charges are correct.
2123. The files disclose that fact anyhow. This was a prospecting lease?—Yes.
2124. There is a great deal of confusion as to what is the real meaning of a prospecting lease as distinct from a mining lease. A prospecting lease, as I understand it can only be issued for two years? —A prospecting lease under this Act is for not more than two years, except that you can have an option for a new one.
2125. There were certain conditions governing the granting of that lease?— The conditions are set out in the lease itself.
2126. And also in the application form? —I do not agree that anything in the application form is a condition governing what is in the lease, or over-riding anything in the lease.
2127. I am not saying that, Mr. Leydon. Do not anticipate me too much. I simply state that there were certain conditions governing the granting of that prospecting lease?—The conditions are set out in the lease.
2128. And I said that conditions were also in the application form, before the prospecting lease was granted, if I judge aright the questions put to you by the Chairman?—I cannot agree that anything in the application form can be regarded as a condition governing the lease.
2129. I quite understand that that is your opinion and interpretation, but I think I am substantially correct when I put the point of view that the conditions governing the prospecting lease were also set out in the application form. However, it is not very important. I am asking you that only as a preliminary question. When this prospecting lease was issued to Messrs. Comyn and Briscoe, it naturally followed, I suppose, that after the two years they would get a sub-lease. Am I correct in that?—Not necessarily. It does not necessarily follow that they would get a continuing lease, if that is what you mean. They would have to comply with the conditions, of course, and satisfy the Minister about their financial and technical resources.
2130. We will leave that out for the time being?—It is an essential condition. You can leave it out if you like, but we would not leave it out.
2131. You know the old saying that “Possession is nine points of the law”? —I have heard that expression.
2132. And old sayings, mind you, are fairly true. They nearly always come out right. I put it to you, Mr. Leydon, that Messrs. Comyn, and Briscoe, having got a prospecting lease for two years, and assuming that they complied with all the conditions—I am only assuming it; they have not, according to the evidence produced—it would be a natural thing to assume that the other would follow automatically?—Not necessarily. They would have to satisfy the Minister about their technical and financial resources.
2133. Again I ask you, having issued a prospecting lease, and assuming that Messrs. Comyn and Briscoe carried out all the conditions governing the granting of that prospecting lease in the first instance, is it not natural to assume that they would get this continuing lease?—Of course, Deputy, no amount of repetiton will induce me to give you the answer you want if I am not prepared to give it.
2134. I am putting it to you anyhow that that is a natural thing to assume. I say that the ordinary man down, the country would assume it?—I cannot help that. I only say that as a fact it does not follow.
2135. I am speaking from the point of view of plain John Citizen—and the majority of citizens possess a little common sense—and he would assume that having got the prospecting lease they would get the continuing lease in the natural order of things. You know that there was an agreement arrived at between this Risberget Company and Messrs. Comyn and Briscoe?—I am aware of the existence of the agreement.
2136. As a result of that agreement a company was to be formed, and the capital of that company was to be £80,000. I do not know what way that money was to be subscribed, but a company was to be formed in any case. All this was contingent upon this continuing lease being granted. You understand that?—It was contingent on quite a number of things. I have no doubt that was one of them.
2137. Naturally, those people were fairly well satisfied that it would be granted. Having all those facts, knowing what was to come out of this prospecting lease at the end of two years, coupled with the letter of the 25th April, and assuming that at the end of two years an advertisement would appear in the daily papers asking for shares in this company, I put it to you would you consider it your duty to publish the letter of the 25th April simultaneously with the notices in the public press calling for people to take shares in this company?—I find it extremely difficult to answer a hypothetical question as to what I might do in two years’ time, in circumstances which I cannot visualise. This agreement, after all, is only an agreement. Obviously there cannot be any appeal to the public for funds until there is a sub-lease. This agreement is not a sub-lease.
2138. Which would come?—Which requires the Minister’s consent.
2139. Which would have been obtained, bearing in mind what happened previously. This is no laughing matter.
Parliamentary Secretary to the Minister for Finance.—I submit that Mr. Coburn should be on his oath. He is giving evidence.
Deputy Moore.—And he is prophesying.
2140. Deputy Coburn.—Mr. Chairman, this prospecting lease, as you know, has been granted for two years, and I should like your ruling on the point as to whether I am at liberty to assume that after the expiration of the two years— bearing in mind the facts prevailing at the time this lease was granted, the personnel of the lessees, and everything else in connection with the matter-the Minister would grant a continuing lease. It is an important matter affecting the public in general in regard to this question of the capital of £80,000. Mind you, people do not lock the stable door when the horse is stolen. They have got to take precautions beforehand. I want to know from Mr. Leydon whether he would consider it his duty to have this letter of the 25th of April published.
Acting-Chairman.—That is a very problematical question to put to the witness, and if he does not desire to answer it I do not think it would be fair to compel him.
Witness.—Frankly, Sir, I cannot see how I can possibly give an answer of any value at all as to what I might do in wholly hypothetical circumstances in two years’ or eighteen months’ time.
2141. Deputy Coburn.—But we must take cognisance of what has already happened. It has been alleged here that proper care and attention were not given before this prospecting lease was issued in the first instance?—It has been alleged and I have denied the allegation.
2142. But I think I am perfectly entitled to look into the future and try to visualise for myself what would be the outcome of the Minister’s action in granting this prospecting lease?—I have no desire to prevent that.
2143. The public is entitled to be warned beforehand in case it would be done. You will agree with me in that?— In case what would be done?
2144. What I suggest would be done, in view of all that has been done in the past in connection with the issue of this lease?
Acting-Chairman.—It is hardly fair to ask the witness as to what the Minister would do two years hence. I do not think that that is a question that should be put, and I do not think it is possible for the witness to answer it.
Deputy Coburn.—I am only putting a question. He need not answer if he chooses.
Witness.—It is not a question of choice.
2145. Deputy Coburn.—In view of what happened we all know that the continuing lease will be issued or granted? —I do not accept Deputy Coburn’s inference that these things would happen.
Parliamentary Secretary to the Minister for Finance.—I object to the expression “We all know.”
2146. Deputy Coburn.— You heard Deputy Geoghegan state in his questions to you that the Government should be a kind of model landlord, and, of course, he was glad you made that suggestion— you yourself made the suggestion that the Government should act as a model landlord; that is, be particularly sympathetic in dealing with people as a landlord would be in dealing with his tenants. Am I to understand that that was the mentality prevailing—that that was what was in your mind—when dealing with this lease?—It did not arise. In the giving of the lease no such question arose.
2147. Now as regards the carrying out of the conditions governing the prospecting lease?—I do not think we arrived at any point when that question arose. That question would arise, as I visualise it, when you come to the point of relying upon some of the covenants in the lease —to void the lease and to put the lessees out of possession. We did not come to that point.
2148. You gave me the impression that under the conditions governing this lease you would be acting as a model landlord. In other words, that you would not be very exact with Messrs. Briscoe and Comyn?—What I said has no particular reference to this lease. Deputy Geoghegan was putting a general question as to the covenants in a lease, and as to how far a landlord could rely upon his rights. It was a general question, not in relation to this lease. What I said, in dealing with leases generally, was that in any position in which the State was acting as landlord, the State should endeavour to act as a model landlord.
2149. And thus be not so exacting in having the conditions of the lease carried out?—In so far as the landlord could be accused of harshness.
2150. In seeing that the conditions of the lease were carried out. That is your statement?—That is the effect of it, but I did not, at any time, suggest, and do not now suggest or admit, that it was any part of the Department’s policy or intention to allow these conditions to be disregarded.
2151. Except in a certain case?—Not in any case.
2152. It seems from your evidence here in this case you have allowed that?— What part of my evidence?
2153. With regard to the £200?—I do not agree at all.
2154. You have no figures to show that this £200 is actually spent?—Would you refer me to any clause in the lease that you are relying upon?
2155. It is not stated in the original application that Messrs. Comyn and Briscoe were to spend £200?—What was said in the application was that £200 was available.
2156. And that they were to employ four men?—That was not in the application. What they stated in the application is not of so much importance, from our point of view, once they got the lease. What matters is the obligations that exist under the lease.
2157. You agree that before you granted the lease you made some inquiries as to the resources at the disposal of those making the application for such a lease, whether it be a prospecting lease for iron or gold. You must have made some inquiries as to the resources of these people. You must have some condition governing the lease before it leaves your office. It seems from your evidence that this was all a question of what is governing the whole thing afterwards; that you place no reliance, or attach no importance, to the conditions that should govern before anything was done?—I say what we relied upon was the lease rather than the application.
2158. So that you granted the application and trusted afterwards to look to the conditions of the lease?—No.
2159. Deputy Fitzgerald-Kenney.— You got this proposal form from Senator Comyn and Deputy Briscoe?— Yes.
2160. Now the proposal form contained the statement, as we already have it, that they had financial resources available to enable the prospecting and development work to be carried out to the extent of £200. That is so, is it not?— Yes.
2161. Now that was signed by Messrs. Briscoe and Comyn?— Yes.
2162. Did Messrs. Briscoe and Comyn, at any time, tell you that they were willing to expend more than £200?—I cannot say. They did not tell me personally; I never had any contact with them, but I cannot say what they told any other officer of the Department.
2163. There is nothing on the files?— Nothing on the files to say they said that actually, but I again draw your attention to the covenants in the lease.
2164. I am coming to that. Have you anything to show that at any time Messrs. Briscoe and Comyn said that they had more than £200 available for this work. You understand my question? —I understand your question. I have not anything to show that they said they had more than £200 available, but the Department was in a position to make a reasonable assumption that if more than £200 was required it would be provided.
2165. On what grounds do you make that assumption—from anything they said?—One of the lessees is a business man connected with a number of businesses and a member of the Dáil. The other is a Senator who took considerable interest in mining industries in this country for a considerable number of years.
2166. These gentlemen told you definitely in a formal document of their willingness to risk the sum of £200. Have you any statement from them that they were willing to risk more than £200?— No, the sum is limited to £200 in the application of the 19th June.
2167. “The financial resources available to enable prospecting and development work to be carried on.” The amount mentioned is £200 and that was what was available. Did they ever tell you that there was a larger sum available?—They did not.
Deputy Fitzgerald-Kenney.— Stop there.
Deputy Geoghegan.— Why should he stop there if he wants to add anything? You know perfectly well you are misrepresenting the effect of the lease.
Deputy Fitzgerald-Kenney.—I have not come to the lease. I have already explained that I want to ask him a preliminary question before I come to the lease. I have asked him the preliminary question which could be simply answered.
Deputy Coburn.—That lease covers a multitude.
2168. Acting-Chairman.—Do you want to add something, Mr. Leydon?—I want to add for the nth time that while the figure of £200 is mentioned the Department did not regard that as the limit of the amount of capital that would be provided if required. The Department has power to insist that additional capital should be expended and if it is not the Department can take steps to void the lease.
2169. Deputy Fitzgerald-Kenney.—Now we will come on to the lease. This lease was entered into after this proposal had been made?— Yes.
2170. Did you consider and work out what the cost would be of carrying out this condition of four workmen constantly employed?—I did not do it personally and there was no calculation, no sum in arithmetic on any of these files.
2171. In other words, what the expense of carrying out this lease would be, as far as you know, was not considered?—I am not prepared to say that.
2172. Are you prepared to say it was? —It was considered—I have said that before—but that is not quite the question you asked me. You asked me what would be the cost of employing four men.
2173. Yes. Was that considered?— That was not considered. I said there is not any sum in arithmetic on the file to show the cost of employing four men.
2174. Have you any reason to think that it was gone into?—This provision is a standard kind of provision in a prospecting lease and the officers responsible for putting it in were quite familiar with it and with what it implied.
2175. Therefore, knowing that that was the case, that it would cost considerably more, would you tell me, if you meant this to be completely carried out, why did you not write to these gentlemen and say: “You will have to amend your offer because £200, in our opinion, will not be sufficient to carry out the prospecting work adequately”?— After their application was made they got the draft lease and they saw what was in it. This was one of the conditions in the draft lease and they were asked if they would accept that and they accepted it.
2176. And you would consider yourself entitled, therefore, to void this lease if, having exhausted their £200, they were not going to put in anything more?— We are entitled to void the lease if the covenants of the lease are not observed.
2177. And would you be willing to void the lease if they did not put into it a larger sum than the sum they say is the maximum available?— There is no covenant in the lease about the sums to be spent.
2178. I am not talking about your legal rights, but you know that they are the same individuals and they have told you every penny they are willing to put in is £200?—I do not agree; I do not accept that at all.
2179. Have they not told you that the sum available is £200?—In the application, but subsequently they accepted the conditions in the draft lease.
2180. So you get this lease entered into by gentlemen who have told you they do not mean to spend more than £200. Does not that reduce this lease into a sham as far as the granting of it is concerned ?— Where did they tell us they had not more than £200?
2181. In their proposal form—the same persons signed a proposal form?—They did not tell us that.
2182. The sum available, they told you, is £200?— Yes, but that is a different thing from what you say.
2183. It may be, but I am sorry to say I cannot see the difference. They are the same men and they did not become different individuals by signing a lease. As regards this question you were asked about being good landlords and not terminating. I understand you now to say that you would have enforced this covenant—your intention was to enforce the covenant?— To enforce all the covenants.
2184. And you are aware that it is possible for you to enforce the covenants and, by serving the proper and adequate notice, that you could void this lease?— I presume so, but that is a matter of law.
2185. It was rather suggested to you that it was an awful business, but you know that under the Conveyancing Act you can serve notice to void it. Nothing up to the present has caused you to serve any notice voiding this lease. You have not served a notice?—No.
2186. For a considerable time the rent was due and you served no notice for that?—No.
2187. You had no evidence before you that four men were employed and you did not serve notice for the non-employment of four men?— We had no evidence that the four men were not employed.
2188. Did they send you in any return? —There was no evidence on which we could proceed to void the lease.
2189. Acting-Chairman.—Before we adjourn, there is a request from Senator Comyn and Deputy Briscoe that they should be supplied with copies of Mr. McGilligan’s evidence. I take it there is no objection.
Deputy Fitzgerald-Kenney.—As far as I am concerned, absolutely none. I think it is perfectly right and highly desirable that they should be furnished with copies.
2190. Deputy Moore.— Will these gentlemen get the same access to the files that Mr. McGilligan got?
Acting-Chairman.— They have not asked for access to the files; they have asked merely for the transcript of evidence.
Deputy Fitzgerald-Kenney.— They could make a verbal application.
Senator Comyn.—I wish to make a verbal application for access to the files, the same access as Mr. McGilligan got.
Acting-Chairman.—I understand Mr. McGilligan did not see any files: he saw one letter.
Parliamentary Secretary to the Minister for Finance.—A question has arisen as to whether witnesses shall have access to the files or not. If we are to take it that the action of the first witness governs all other witnesses, then you can see the extraordinary unfairness of the position. For instance, one witness might say “I will have all the files” and therefore every man must have all the files. Are we to take it now that merely because Mr. McGilligan asked for access to one file only, or one letter, that other people are bound by that precedent?
Deputy Fitzgerald-Kenney.— To cut the matter short, I propose that Messrs. Comyn and Briscoe be allowed to see the files.
Deputy Geoghegan.—I agree with the Chairman’s view that access to the files should not be granted. If a witness is to have access to the files it should be for some special and definite reason and should not rest on precedent. If it is to rest on precedent, because one witness has it every witness must have it, then the most trivial witness who comes up on a mere matter of detail can claim it.
Deputy Fitzgerald-Kenney.—I do not consider either Senator Comyn or Deputy Briscoe trivial witnesses. I do not take this as a general ruling, but I would be absolutely with Deputy Geoghegan on that.
Deputy Geoghegan.—As I understood it, the first application made by Senator Comyn was for a transcript of the evidence.
Acting-Chairman.— That is so.
Deputy Geoghegan.—I am assuming that Senator Comyn has not any special reason for wanting to see the confidential file, but if Senator Comyn says that it is essential to him for the purpose of making up his evidence that he should have access to the public file I would not resist his application, but under no circumstances can he have access to the confidential file. I think the first application of Senator Comyn did not contemplate getting the file. I merely say this, that I can see that Senator Comyn and Deputy McGilligan stand in a different position from the other witnesses, and I am merely making this protest to witnesses in general, that they cannot come up here and claim the transcript of evidence or to inspect the files.
Senator Comyn.—My request for access to the file was confined to this—an inspection of the file to the same extent as Deputy McGilligan has got. I submit that is my right. I claim it as my right to see whatever Deputy McGilligan has seen, otherwise one party to the proceedings has knowledge that the other party has not access to.
Deputy Fitzgerald-Kenney.— Senator Comyn, I must protest against the use of the words “party to the proceedings.”
Deputy Geoghegan.— And I protest, too.
Acting-Chairman.— Deputy McGilligan has only seen one letter. Would it be fair that that letter should be shown to Senator Comyn?
Senator Comyn.— Yes, a letter written by myself. Mr. Leydon tells me it was written by myself.
Deputy Moore.— If that is the ruling I would like to raise an objection.
Acting-Chairman.—I prefer the Deputy would raise that question when the Chairman is here.
Deputy Moore.—There are letters that would possibly be much more useful to Senator Comyn and Deputy Briscoe than the letter in question. If Deputy McGilligan was entitled to see the letter that was most useful to him, then I submit they should be entitled to see the letters most useful to them.
Acting-Chairman.—I think it would be better if Deputy Moore would raise that question when the Committee meets again.
Deputy Fitzgerald-Kenney.—There is one thing and it is this—and I am sure the Committee will agree with me when I say this—that there should be no objection to an inspection of the files.
Deputy Geoghegan.—I agree. Could the Acting-Chairman say if there is a spare copy of the file available?
Deputy Geoghegan.— I see no objection to that.
Deputy Fitzgerald-Kenney.— As a matter of fact, they will see nothing in the files except their own letters. They could constitute the file out of them.
Acting-Chairman.—You are all agreed on that now, and that we are to meet on Tuesday, 24th September, at 3 p.m. The Minister for Industry and Commerce will then be the witness.
Deputy Fitzgerald-Kenney.— Meanwhile I hope an effort will be made to get Mr. Harrison here and also Mr. Heiser. This Committee cannot conclude without them.
Deputy Geoghegan.—On one day we had Deputy Fitzgerald-Kenney objecting to the Committee holding its sittings because he said Mr. Harrison had to be got first.
Deputy Fitzgerald-Kenney.—I have no recollection of that.
Deputy Geoghegan.— Deputy Fitzgerald-Kenney put that very strongly to the Committee and I was informed afterwards that actually at the time that Deputy Fitzgerald-Kenney was addressing the Committee that Mr. Heiser was seated in the room.
Deputy Fitzgerald-Kenney.—I was not aware of it.
Deputy Geoghegan.—The Deputy ought to be sure of his facts. He was pointed out to me in the room after the Deputy had delivered a most impassioned oration in favour of a long adjournment for the purpose of getting that witness here.
Deputy Fitzgerald-Kenney.—For all I am aware of, Mr. Heiser may be in Timbuctoo, but I object to coming here and then finding that there has to be an adjournment because Mr. Heiser is not here.
Deputy Moore.— Deputy Fitzgerald-Kenney cannot be expected to know Mr. Heiser any more than we know Mr. Harrison.
Deputy Geoghegan.— Mr. Leydon will tell the Committee that Mr. Heiser called on him towards the end of July.
Witness.— He called on the officers of the Department on or about the 31st July and he said then that he was going to Africa. He may be going to Abyssinia.
Acting-Chairman.—We are told he was here in the Committee room.
Deputy Fitzgerald-Kenney.—The next thing you may hear or see about Mr. Heiser may be photographs of him discovering gold in Central Africa.
The Committee adjourned at 5 p.m. until Tuesday, 24th September, at 3 p.m.