Committee on Finance. - Supplies and Services (Temporary Provisions) Bill, 1946—Committee (Resumed).
Wednesday, 26 June 1946
Dáil Éireann Debate
“These Orders prohibit the cutting down or uprooting or lopping of trees standing within 30 feet of the centre of any road. The powers were taken in order to maintain cover and facilities for road blocking provided by roadside trees. It is considered  that in any future conflict trees along the principal roads will be an even greater factor in defence than they were in the past and that the preservation of trees bordering those roads is a vital military necessity. Proposals for permanent legislation and for State schemes of roadside planting are at present under consideration.
It is proposed to retain these Orders with the exception of Article 4 of the principal Order which empowers commanding officers of the Defence Forces to prohibit the felling or boughing or lopping of trees more than 30 feet from the road centre.”
General Mulcahy: I am quoting from page 16 of the explanatory memorandum circulated with the Bill. Can we not have a little bit of commonsense or even a little sense of humour? Under another Estimate we are to have a substantially larger Army than we had in the past. Now we have developed some military theories during the war, and one is that the trees along the principal roads are to be a greater factor in defence in the future than they were in the past. What are we going to do with the country if we are to put up monuments along our principal roads for some future conflict? The life will be scared out of the people going along the country roads when they pass under the leafy shades and think that these would not be there but for the fact that some future conflict is expected when all the new weapons that are to be let loose will be coming down on the tops of these trees. The Department of Local Government was always insistent in the past that roadside trees damaged roads and added very considerably to the cost of maintenance. Now, in order to protect ourselves against some future conflict, we propose to establish a regular system of tree plantation along the principal roads that will be injurious to the roads which are to be used for ordinary traffic and for the necessary transport. We are going to seize private property  in the shape of trees and to invade private property for further tree planting in the future. I do not know whether the Minister for Defence has persuaded the Minister for Industry and Commerce that this is a vitally necessary proposal, but I think it is one of the most ridiculous proposals we could possibly have and I think that we should dispense with these powers.
Minister for Industry and Commerce (Mr. Lemass): I do not wish to enter into an argument with the Deputy on the soundness of the military theory concerning the value of roadside trees in defence. The Army authorities regard them as important. Trees have this peculiarity, that they take from 20 to 40 years to grow and, if cut down now, could not be replaced in any foreseeable time. If the Order prohibiting the cutting of roadside trees were to be repealed now, I think it is very likely that in the present fuel situation a very large number of them would be cut down, and that reason alone justifies the retention of this Order for the present. Whether the permanent legislation foreshadowed in the memorandum will be produced is, I think, dependent upon the outcome of discussions which are proceeding between the Department of Defence and the Department of Local Government. It is quite true that the engineers of the Department of Local Government have been in the past perturbed at the effect upon road maintenance of trees overhanging a road. But I think that agreement has been reached between the military experts of the Department of Defence and the road experts of the Department of Local Government on a programme which will serve both their purposes.
The scheme contemplates a State grant or other form of State aid to encourage the planting of trees in the vicinity of roads. I gather from inquiries I have made that the Defence authorities do not consider it necessary that the trees should overhang the road, but that there should be plenty of cover in the vicinity of the road from the point of view of concealing the  movement on the road of military forces. The sole purpose of maintaining the Order, however, is to keep the present position unchanged pending the restoration of more normal conditions as regards fuel, the removal of the exceptional inducement now existing to cut down trees, and the making of a decision on the question of permanent legislation in regard to this matter.
Mr. Costello: If the Minister is apprehensive that in the existing fuel situation these trees will be knocked down wholesale, surely the Minister for Agriculture has power under the Forestry Act to prevent that by not giving a felling Order?
Mr. Lemass: I am sure that the Deputy knows as well as I do the limitations of the Minister's power. I have seen trees disappearing branch by branch, but nobody could say at what stage the tree was cut down.
Mr. Lemass: I think the Deputy realises the soundness of the military  contention; in other countries the practice of growing trees on roads of military importance has had State support for years.
Mr. H.M. Dockrell: On the section, I want to ask the Minister about the difference between Order No. 260 and Order No. 83 in the White Paper. Under Order No. 260 it is quite definitely stated: “These Orders provide for the control of remuneration of employees generally. It will be necessary to retain these Orders pending the enactment and coming into operation of the Industrial Relations Bill.” I think the Minister said previously that he intends to repeal Order No. 260 the day the Industrial Relations Bill comes into force. Is his intention the same with regard to Order No. 83? Under that Order there is this note: “These Orders impose restrictions on the distribution of profits of companies and directors' fees and remuneration of employees and it is necessary that they should be continued for the present”. What will be the position in the period intervening when Order No. 82 is repealed and Order No. 260 is repealed?
Mr. Lemass: Order No. 83 imposes restrictions on the distribution of profits of companies, on directors fees, and on the remuneration of employees  in certain designated essential industries. That Order, in so far as it related to the control of wages, was superseded by Order No. 166, which extended the standstill on wages to wages in all occupations. In turn, Order No. 166 was superseded by Order No. 260, which provided for the making of standard rate and bonus Orders. The repeal of Order No. 260 will carry with it the repeal of all emergency restrictions on wages and salaries. I cannot say at what stage the Government will decide to remove the restrictions upon the distribution of profits and on directors' fees and the remuneration of employees. It should be clear, however, that if this Bill be passed, then, from the 1st September next, Emergency Powers (No. 83) Order can be only maintained or revoked; it cannot be amended and, if it should impede the operation of the Government's policy concerning wages, it would have to be removed.
Mr. H.M. Dockrell: I can remember when these Emergency Orders were first introduced. It was then represented that what was sauce for the goose was sauce for the gander; that the employees' wages would have to be controlled and, therefore, there could not be a free market for directors' fees, dividends, etc. Now, apparently, the Minister has admitted that Order No. 260, which controls employees' wages, is going when the Industrial Relations Bill comes into force, but that Order No. 283 may or may not be repealed as from the 1st September. That is certainly a breach of the statement that was made when Order No. 83 was brought in. We were told that what was sauce for the goose was sauce for the gander but now, apparently, one will be revoked and the Minister has suggested that the other might perhaps be revoked. Apparently, no decision has been arrived at on that point. I think that is a most serious step and, if he can, the Minister should give us an idea when the restrictions on dividends and directors' remuneration will be revoked.
I should like to point out some of the anomalies that have grown up under Order No. 83. I suppose we  could not blame the Government for falling into the idea that, under modern methods, war could not be waged for more than a year or two years at the outside. Now, there are junior directors whose remuneration is held down to what they received when they started. There has been a considerable alteration in directors' status within the past six years. The Minister might point out to me that there is a very elaborate formula by going before a tribunal which may alter that, under certain circumstances, but a whole lot of companies have not done that. I suggest that it is most unfair to divorce these two Orders.
Mr. H.M. Dockrell: But the whole position is, apparently, being reviewed. The Government have decided that the situation will be brought gradually to an end. The bonus Orders are a sort of cushion for wages and provision has been made for industrial courts. But the Government, apparently, have not come to a decision about dividends and directors' remuneration.
Mr. H.M. Dockrell: Yes. I would suggest that this is putting the cart before the horse. If this whole Industrial Relations Bill were just, it ought to regulate the position of employers and workers. Apparently the Government have made up their mind about the workers and they have shelved the position in regard to the employers. I suggest that this is not just and that the sooner the Government come to a decision on that point the better.
Mr. McGilligan: The Minister talks about impeding the Government's policy with regard to wages. Was that announced? The Minister in reply to Deputy Dockrell a few moments ago said that if something impeded the Government's policy in regard to wages it would have to be removed.
Mr. Costello: With reference to the repeal of the standstill Orders and the retention of the Order dealing with directors' fees, has the position of the unfortunate consumer who has to pay for both been considered at all? The ordinary man in the street has to walk in and buy things. The price he has to pay for articles he gets over the counter has relation both to the amount of wages that are paid and to directors' fees, but that unfortunate individual does not appear to have got any consideration in all this matter.
Mr. Costello: I am the only one who has raised this matter, but if the Minister wants me to act as a Greek chorus, I will be glad to do so. On the section as a whole there are some matters on which I want information. I want to know if I am correct in my interpretation of Section 3 that it continues in force—speaking now in reference to Orders under Section 2 of the Act of 1939—any Order which happens to be in force when this Act comes into operation?
Mr. Costello: I have looked carefully down through the Orders referred to in the explanatory memorandum and, to my own knowledge, there are numbers of other Orders to which I take the gravest exception and which I would have raised by way of amendment to this Bill were it not for the fact that  they do not appear in this list of Orders that are going to be continued, but as the Bill stands at the moment I have no guarantee that they will not find themselves in full force and effect in the course of a few weeks.
Mr. Lemass: Yes. That was a drafting device that was adopted because of certain difficulties that arose. I announced on the Second Reading the Government's intention that only the Orders listed on the White Paper will be in force on 1st September. The other Orders not mentioned there will be repealed before that date.
Mr. Costello: That is what I was just going to say to the Minister. He spoke about a drafting device. I am not a draftsman, thank goodness, but I think I have sufficient experience of drafting to say that I would have thought that the most appropriate drafting device, certainly from the point of view of giving information to the public, would be to put into a schedule those Orders which it was intended should be retained in effect. That would have the effect of giving information to the public. At the present moment there is the greatest possible difficulty in anybody, even those of us whose job it is, to find out what Orders are in force from day to day. The ordinary member of the public has no means of finding out. In fact one man I know seized on this memorandum as the first place where he could get information as to what Orders were in force. I think he was suffering from the delusion that all the Orders that were in force at the moment were in this memorandum. In fact, I gather from the Minister—and of course I realise—that that is not so. But I think it would be certainly for the benefit of the public, apart from anything else, that the Minister should at some stage of this Bill, when the Government have made up their mind what Orders they are going to keep in force, put that into a schedule so that all anyone would have to do would be to get a copy of the Act. Whereas, if that schedule is not put in, nobody will really know what Orders are being  continued but will have to look around for some announcement in Iris Oifigiúil or otherwise find out what Orders are in force.
Mr. Costello: That is another point that I want to refer to. I did come to the conclusion on this section that not merely will the Orders that are listed in this White Paper be continued but a multitudinous list of Orders which are referred to as Ministerial Orders will still be continued.
Mr. Costello: I do suggest to the Minister that there will be a state of complete chaos in connection with that matter. It would be utterly impossible to find out what is and what is not the law unless some sort of list is prepared.
Mr. Lemass: A list of Ministerial Orders would be very long because we would have to include all the standard rate Orders, bonus Orders, under Order No. 262 and all the price Orders which may be varied from day to day and some of which would have to be varied between this and 1st September.
Mr. Costello: The Minister says it would be very long but the Minister and the Government should consider the plight of the unfortunate public. The Minister thinks the list is too long to put into a schedule to the Act but what about the public who are affected by these Orders and cannot find them anywhere, certainly not without the employment of expert legal assistance and legal assistance of a kind that is going to spend a considerable amount of time and industry searching them out and even when they have searched  them out nobody can say whether they are still in force or not. I do respectfully suggest to the Minister that some device ought to be adopted of giving notice to the public in some shape or another, if not in the schedule, in some way, of the Orders, Government or otherwise, that will remain in force after this Statute is enacted, because otherwise the position will be one of complete confusion.
Mr. Costello: Ministerial Orders will only be tabled where made under this Bill. If these Orders are continued, Ministerial Orders may be made ad lib. and nobody will know anything about them, or need necessarily know anything about them. They need not be referred to in Iris Oifigiúil or published anywhere. In fact, they could be made orally. I think it is possible to make a Ministerial Order orally. I think the Minister will agree with that. I have been told by a businessman that orders or directions are, in fact, given orally which have the effect as if they were given under Government Order. I do not know where the ordinary public, in the present state of so-called emergency, are going to find themselves at all. We have at least reached some point where emergency conditions have been minimised, if they have not ceased, and I do think that the Minister ought to consult public interest in this respect. The position as regards these Orders under the Emergency Powers Act has become extremely chaotic. It is almost impossible to know where you stand. Speaking from the point of view of those professionally engaged in advising people, there is the utmost difficulty and, where called to do that, we are not quite sure that we have the last Order, or no matter what industry is displayed, can we be sure that a particular Order is the Order in force at the moment, or whether or not one has been made five minutes before our opinion is given.
Mr. H.M. Dockrell: As a reinforcement of what Deputy Costello said, I should like to give one instance of a position that will arise under Emergency Powers (No. 83) and Emergency Powers (No. 260) Orders. There are directors who also draw salaries and, apparently, under No. 260 Order as members of the staff of employees the ceiling on their payments will be taken off, while as directors their remuneration as such will still be controlled. Am I right in my reading of the Orders?
Mr. Lemass: Deputies will remember that there is a very large number of Ministerial, as well as other Orders, that are never revoked. I made an Order last week fixing the maximum price of oranges at 6½d. per lb. That supersedes all previous Orders. There would be many hundreds of these Orders which would be affected.
Mr. Costello: I agree that that is the position. I want some method that will give us the principal Orders, some information on Government Orders and of Ministerial Orders, without reference to details. I do not want to put the Government to the expense of producing a list of principal Orders, if there can be some method by which we could gauge what is in force at the moment. Then we would know where we were, and would be able to start from that point.
Mr. Lemass: There may be other categories. I remember signing 100 Orders in a day relating to turbary where the Turf Board was taking over turbary for turf production. Orders of that kind only affect individuals.
Mr. Lemass: There would be no point in publishing Orders by the Minister for Agriculture, dealing with the taking over of land where tillage was not done. I think Deputy Costello referred to Orders of general interest, rather than to those specially directed to individuals concerned.
Mr. Costello: Certain Government Orders are being continued and by virtue of these Orders, Ministerial Orders might be made arising out of them. Under this Bill Government Orders are Ministerial Orders. Orders amended by the Emergency Powers Act continue in force, and will not have to be listed. Is that the position?
Would the Minister consider that Order in reference to an amendment in my name, and in that of Deputy Mulcahy, which he moved but withdrew in order that the Minister might look into the matter? The position, as I understand it, is that the court have declined to assess compensation in the case of land taken under the Emergency  Powers Act, on the ground that there is no jurisdiction and no machinery provided. In other words, persons whose land was taken under the Emergency Powers Act have no right to compensation.
Mr. Costello: Or temporarily—no matter what happened. That is my information from the decision of the court. That is why I put down the amendment. I think there ought to be a tribunal as between the State taking over a person's land, and the person whose land is taken, to assess compensation.
Mr. Costello: I argued a case in court up to that point. Fortunately, it was settled before the matter had to be determined. The point raised was that the court had no jurisdiction, where a man's land was taken permanently, to assess compensation. I was relating it to the old decision in an hotel case in the English Courts under the Defence of the Realm Act, where the House of Lords decided that even though there was no provision in the Defence of the Realm Act, the Crown had to pay compensation. The same principle would apply here, but I was told subsequently by a colleague that there was no jurisdiction here.
Mr. Lemass: Emergency Powers (No. 310) Order, which authorises a local authority to take turbary, and Emergency Powers (No. 301) Order, which authorises the State to take turbary provided for the assessment of compensation. The provisions of these  Orders determine how compensation is to be assessed, so that there is no problem in relation to the acquisition of turbary. The problem arose in connection with certain lands occupied by the military authorities and evacuated by them when the war was over.
Mr. McGilligan: The note in the White Paper on Emergency Powers (No. 69) Order says: “This Order makes amendments which experience had shown to be necessary” in two other Orders having reference mainly to the registration of foreign securities and generally dealing with foreign holdings. There is also an Order which imposes upon people the duty of paying for exports in the currency of the country. Why that should be I do not know. I want to know what are the amendments referred to in respect of Emergency Powers (No. 69) Order. It is stated with regard to Emergency Powers (No. 4) Order that “the reten tion of this Order is considered essential so long as it is necessary to operate any form of foreign exchange control”. Later in respect of Emergency Powers (No. 29) Order, it is stated that “the power to acquire foreign holdings has not been exercised but it would be premature to abandon the power conferred by the Order”. Emergency Powers (No. 29) Order has never been exercised?
Mr. McGilligan: They had to register, but there was no acquisition, and registration is probably necessary, in case acquisition had to come, but in what circumstances is it thought that acquisition might hereafter become necessary, when it has not become necessary to date?
Mr. Lemass: I think it would be far too soon to assume that we are out of all our exchange difficulties. It may be that developments this week or next week will tend to ease them, but we cannot reckon on these developments yet as resolving our exchange difficulties.
Mr. Lemass: The Deputy should understand that, in large measure, the restrictions we are imposing on the transfer of currency or the acquisition of property abroad have been brought into force in agreement with the British authorities. It is in consequence of the fact that we have these restrictions in force that there are no exchange restrictions between ourselves and Great Britain. We secured that free position between ourselves and Great Britain by maintaining these restrictions, which are in many respects comparable with those maintained by the British authorities.
Mr. McGilligan: Therefore, we are entirely dependent upon these two Orders, and these two Orders have been passed more or less on a basis of acquiescence with the British attitude in connection with foreign exchange?
Mr. Lemass: That is going too far. The advantage secured by the making of these Orders, which brought into operation here restrictions upon exchange transactions similar to those in operation in Great Britain, was the removal or the avoidance of restrictions on financial transactions between ourselves and Great Britain. The main bulk of our trade is with Great Britain and it was obviously desirable  that there should be no restriction upon the movement of funds from one country to another. The British authorities were prepared to agree to maintain no such restrictions upon the movement of funds into this country only on the understanding that we would ourselves keep restrictions upon the movement of British funds out of this country.
Mr. McGilligan: May I take it that it is because of our passing these two Orders which fit in with the British control system that we got a certain sharing in the dollar pool which Britain had? Do we transfer dollar holdings, such as we have, over to the dollar pool in England?
Mr. Lemass: It was in consequence of an understanding made before the war, at a stage when we were contemplating the measures we would need to take in order to maintain a fluid exchange position. The matter was discussed with the British authorities at the time and it was clear that the measures we had in contemplation would operate to weaken the sterling position then. An understanding was arrived at that, in consideration of our not adopting these measures, the dollars necessary to meet our reasonable trade needs would be provided during the war by the British Treasury.
Mr. McGilligan: And, in addition, could we take any dollars we could get on our own and use these, irrespective of the arrangements with the British?  In other words, had we, so to speak, a share on some basis in the English dollar pool, in whatever pool the British authorities had. Could we use whatever dollars we happened to get or had we to pool them with the others?
Mr. Lemass: I am not talking of the Sweepstakes. I am talking of official funds held in dollar securities, and, of course, there were these dollar assets held by our citizens, registered securities, which were not acquired.
Mr. McGilligan: It is apparently proposed to continue this because it is stated with regard to Emergency Powers (No. 4) Order that “its retention is considered essential so long as it is necessary to operate any form of foreign exchange control”. Will the  period over which it is considered desirable to operate foreign exchange control be a period determined by us or by us in conjunction with the British?
Mr. McGilligan: Order 260 is described in this way: “it will be necessary to retain these Orders”—that is, Order 260 and the amending Orders—“pending the enactment and coming into operation of the Industrial Relations Bill, 1946”. The Industrial  Relations Bill has in it a clause referring to an “appointed day” so that the day of the enactment of the Industrial Relations Bill is not the day of the disappearance of Order 260.
Mr. McGilligan: That is what the Minister contemplates; round about the middle of September this situation with regard to wages of industrial employees and salaried workers in the country generally will arise in which they will be free to negotiate about the middle of September.
The amendment that I have down purports in effect to nullify sub-section (9) of Section 6. Sub-section (9) as drafted does away with the section of the  Petty Sessions (Ireland) Act, 1851, which provides a limitation of six months on the bringing of summary proceedings and lays it down that it shall not have effect in relation to offences under this Act. In the explanatory memorandum circulated with the Bill it is proposed to continue Emergency Powers No. 178 Order, 1942, which removed the six months' time limit in respect of prosecutions under the emergency powers code. The reason given in the explanatory memorandum for the continuance of that Order is that it was found desirable to make the Order and to continue it because of the impossibility, or the impracticability, of bringing proceedings for breaches of the tillage regulations within a period of six months. If that is so and if there is some peculiar difficulty in connection with the tillage Orders, why not confine the Order which is being continued, and this particular provision in the Act, to tillage Orders? Sub-section (4) of Section 10 of the Act of 1851 has been in operation for nearly a century. It provides a limitation on the time limit within which proceedings may be brought before courts of summary jurisdiction; and the reason is, as I apprehended it, that the whole basis of summary jurisdiction is that cases should be tried summarily—in other words, quickly, expeditiously. If expeditious proceedings are not brought in a court, which is supposed to be a summary court and court in which summary justice is expeditiously dealt out, this would be an end of the proceedings. I think that principle should not be eaten into by our code of criminal law, even at the expense of administrative inconvenience. If there is a case to be made during the emergency because of breaches of the tillage regulations, I think that ought to be sufficient and the other matters could readily be brought within the six months and, in my view, ought to be brought within the six months if they are going to be brought at all.
Mr. McMenamin: I would support Deputy Costello in this. I do not see why the tillage prosecution should be allowed to hang over into the following autumn or winter. The probability is  that this was done in the past owing to the lack of justification or proof of violation of the tillage Orders. Surely, it should be known by the 1st June in any single year whether a man has complied or not; and it ought to be possible after that date to serve notice upon him and to take proceedings against him as quickly as possible. I have known cases where they ran over a year before the prosecution came into court. The war is over now and the machinery has been sufficiently long in operation to work in a more satisfactory manner. The officers have gained in experience and there is no reason now why they could not specify on any day after 1st June in any year whether a man has complied or not. It should be possible then to take out a summons immediately and not have a man in the position of waiting and wondering whether or not he is going to be summoned. Now in the month of November, or December, he gets his summons. He immediately approaches his local T.D. to see if he can do anything about this prosecution. The right step would be to give them up to 1st June to comply with the tillage Order. These inspectors are now adepts in their job; they know the country and they know the farmers. I can see no reason myself why these matters should be held over. I think this section should be dropped and the old law should remain in force.
Mr. Lemass: The critical date under the tillage Orders is not the 1st June but 15th July. Irrespective, however, of whatever date is taken, it is quite clear that inspection of holdings for the purpose of instituting proceedings for non-compliance with the Orders cannot begin until after the final date. It is only on the final date that the offence is committed if the required percentage of tillage has not been done.
Mr. Lemass: It is the 15th July, but it does not matter for the purpose of this argument what the critical date is. Inspection of the holdings to ascertain whether the tillage Order has been  complied with begins upon the final date for doing the tillage. It cannot begin earlier because the defence could always be advanced that the work was done subsequently or might have been done subsequently. It takes four to five months to complete the process of inspection in view of the large number of holdings involved.
Mr. Lemass: It has been our experience that it takes four to five months to finish the inspection; and then there are many cases where there is delay and difficulty in ascertaining the owner of the land with a view to issuing a summons.
Mr. Lemass: The enforcement of the compulsory tillage Orders would be much more difficult if this time limit operated in respect of a summons. The fact that the war is over does not mean that the food emergency is over. In many respects the food emergency is greater now than it was at any stage during the war and the need for compliance with the compulsory tillage Orders is greater to-day than it ever was in the past five or six years. However, as I understand Deputy Costello, while conceding the possibility that this Emergency Powers Order is necessary in relation to compulsory tillage requirements, he thinks it should be confined in its effect to the compulsory tillage Order.
Mr. Lemass: That is the reason  given in the memorandum. There is, I am informed, a general feeling that the period should be extended in any event and that the Petty Sessions (Ireland) Act should be amended in that respect. I understand there is an intention to take an opportunity to submit proposals for the amendment of that Act to the Dáil. I gather that representations have been made to the Department of Justice by interested parties with a view to the amendment of that Act and that the Department of Justice have these under consideration. It is, therefore, desired to maintain the position until the Department of Justice has come to a conclusion on these representations. That is why, although the Order is primarily required for the purpose of enforcing the compulsory tillage Order, it may lead to a permanent change in the legislation and it is desired to keep the situation unaltered until that permanent change can be decided upon.
Mr. Lemass: We are availing of the Order. In black market offences it is not unusual when an irregularity is discovered in one firm that it leads to investigations which disclose prior  irregularities on behalf of the wholesalers supplying that firm and it is not, I am sure, considered desirable by Deputies that persons who engage in black-market activities should escape punishment.
Mr. Costello: I am rather perturbed to hear from the Minister that the Department of Justice is proposing to bring in permanent legislation to deal with the extension of time under the Petty Sessions (Ireland) Act. I suppose we must deal with these proposals when they come forward.
Mr. Costello: Deputy McGilligan really put his finger on my objection— that this is really indefinite. I do not want to make the case again, but the Minister will realise that, apart from the principle that a summary court deals with and ought to deal with proceedings summarily, that is quickly, there is the point that when proceedings are unduly delayed human testimony becomes completely unreliable.
10. No court, tribunal or authority other than the High Court, Circuit Court or District Court shall have by virtue of any Act passed before the passing of this Act or by virtue of any Order made by or under the authority of this Act or the Act of 1939 any jurisdiction to hear or determine any offence under this section.
This amendment proposes to ensure that the Special Criminal Court will have no jurisdiction in reference to offences under this Act. I put down this amendment largely because I was somewhat shocked at the view stated by the Minister during the Second Reading of this Bill on the manner in which offences ought to be brought before this Special Criminal Court, popularly known as the Military Tribunal. If I may say so without any disrespect, the Minister has completely misunderstood the whole purpose and scope of the Offences Against the State Acts. As reported in column 2089 of the Official Report of the 18th June, the Minister stated:
“It is, I understand, the function of the Attorney-General to decide whether cases should go to that court or be considered in the ordinary courts. I came to an understanding with the Attorney-General at an early stage in the war that there should be referred to the Special Court cases of offences against rationing and similar Orders where the evidence was such as to suggest that there was a conspiracy—an or ganisation on a large scale—for the  black-marketing of goods over a substantial area. Generally speaking, charges against individual traders of selling goods at excessive prices, or contrary to the rationing regulations, were not proceeded with in that court, but where there was evidence of—shall I say—black-marketing on a wholesale scale, involving more than one trader and more than one locality in the country, then it was considered that the District Court would be inappropriate for dealing with the charges and the Special Court was used. Deputies who wish to raise questions concerning the utilisation of that court should do so with the Minister for Justice.”
May I say in reference to that last sentence that when we tried to raise it with the Minister for Justice, he said: “Raise it with the Minister for Industry and Commerce.” I put that to him during the discussion on the Estimate for the Department of Justice. The ball is passed from one Minister to the other. In my view, neither Minister has anything to do with it. I think the whole position has been misconceived. It is not the Attorney-General's function to decide whether a particular case is to go to that court or not. Before any case can go to this Military Tribunal, as it is called, the Government must make the offence a scheduled offence. It is a Government matter and the Government have to carry out the law in the way that this Oireachtas intended them to carry it out and only do it in the circumstances specified in the Act of 1939, as amended, and these circumstances are set out in Section 36 of that Act. Speaking generally, the provisions of Section 36 are as follows:
“Where the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of the public peace and order in relation to offences of a particular class or kind or under any particular enactment, the Government may by Order declare these offences to be scheduled offences.”
The Government may do it, but before  they can do it they must be satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of peace. I am sure the Minister will not take offence at what I am saying as I do not intend it in any disrespectful way. It appears to me, however, that when the Minister stated he had an understanding with the Attorney-General, both himself and the Attorney-General of the time were acting quite contrary to the law and spirit of the Act, because it is not a question of selecting a particular type of offence and saying: “That is a black-marketing offence of a particularly heinous character and it must go to the terror court in order to be dealt with.” That is not what the Act says. That is not what the Parliament of this country intended when special tribunals were authorised to be set up. Before these courts were to be given jurisdiction, it was the intention and it is the letter of the law that the ordinary courts should be ineffective to secure the administration of justice and the preservation of the public peace. How can it be alleged that, even in reference to black-marketing offences, the ordinary courts are ineffective to secure the impartial administration of justice? I think that underlying the Minister's statement on the Second Reading of the Bill there was the suggestion that because certain types of black-marketing offences were of such a gross character that they ought to be dealt with by this particular terror tribunal and not by the ordinary courts they were sent to that tribunal. That concept of the Minister has nothing to do with the basis on which the jurisdiction of these special criminal courts is established, namely, the fact that the ordinary courts are ineffective to secure the proper administration of justice and the preservation of the public peace.
We have Circuit Courts and District Courts staffed and manned by judicial personages of standing and, it must be presumed, of ability. In reference to the particular individuals who occupy these positions at the moment, a very large percentage of the personnel of these courts has been actually appointed by the present  Government, and by their action in sending these cases to the Military Tribunal, the Government have passed a vote of censure on themselves and on their own judicial appointments because the Special Criminal Court can have no jurisdiction, in justice at all events, apart from the letter of the law, unless the ordinary courts are inadequate to secure the effective administration of justice. Send a black market case to the Military Court and that suggests that the District Court, the Circuit Court, or even the High Court, which has jurisdiction, is inadequate to secure the effective administration of justice in relation to black market cases. I do not subscribe to that opinion, even though the people appointed have been appointed by the present Government. Every case sent to the Military Tribunal, as it is popularly called, is a vote of censure on our own judicial system at a time when that system is working satisfactorily and in accordance with the way most people want it to act.
I think the whole concept is wrong. It is not for the Minister and the Attorney-General to say: “We will send black market cases to the Military Tribunal.” There must be a determination by the Government that the ordinary courts are ineffective to deal with these cases, that the preservation of public peace and order cannot be secured by the ordinary courts or the effective administration of justice assured by the ordinary courts. There is no foundation for the suggestion that the ordinary courts are inadequate to deal with black market cases, of however heinous a character. It must be assumed that the district justices will do their duty.
I want to make a public profession of faith. I have no sympathy with black market offences. I wish to see the offenders prosecuted with the utmost vigour and I wish to see them getting the utmost penalties the law provides. But I want our judicial system maintained, and it is a blot on the administration of justice that extraordinary courts, which were intended to deal only with a particular type of case, a case where ordinary courts or juries would be ineffective—a case of armed  insurrection or illegal organisation, for example—should be utilised to deal with such things as black market offences. I think it is lessening the prestige and blackening the character of the administration of justice when we have to resort to that kind of tribunal.
There are certain types of cases which can be tried summarily by the ordinary district justices; there are other cases that can be tried on indictment. The same facts may give rise to a summary offence or an indictable offence. The indictable offence may be tried by a jury. I would prefer to have a jur convicting a black marketeer in one case out of ten than to have the whole ten black marketeers convicted by the Military Tribunal, because I think it would be a far greater manifestation of public spirit, acting through the jury system to deal with black marketeers, than have them dealt with by the gentlemen who preside at these military tribunals.
You would get far more respect for the law if you reach the position where juries convict black marketeers in indictable offences—and I believe juries would convict in black market cases. You would have far more respect for the administration of the law and more respect from the black marketeers if their own fellow countrymen were on juries convicting them. I believe they would convict them. I believe that with the ordinary consuming public on a jury—and a jury is a cross section of the public—you would get far more respect for the administration of justice in that way and far more public support in relation to the hunting down of black marketeers than in any sentence of the Military Tribunal. I believe these sentences rather gain public sympathy for the black marketeers than otherwise.
They may strike terror into the hearts of some who get exemplary sentences, but if these exemplary sentences were given by a district justice or a Circuit Court judge after conviction by a jury, it would be far more effective than any number of sentences by a military tribunal. I say quite sincerely that the only effect of convictions by military tribunals is to gain a sort of sneaking sympathy  for black marketeers, who do not deserve any sympathy whatever. I suggest to the Minister that these offences ought not to be tried by the military courts, that the approach is wrong as he stated it. He has, I am sure, quite inadvertently taken the wrong approach to this matter. There is considerable excuse for the Minister in taking that approach when apparently the Attorney-General assisted him. The spectacle of the Minister and the Attorney-General deciding in advance that certain cases should go to the tribunal is in complete conflict with the provisions of the statute and contrary to the whole spirit of it.
Under the Act of 1939, when the Attorney-General sends cases from the ordinary courts to the Military Tribunal, he is supposed to act judicially in each case. He is supposed to bring to bear on the facts of each case a judicial determination and he can only bring that judicial determination to bear on the facts of each case when the Government has done its job; that is to say, has determined that the ordinary courts are inadequate to secure the determination of justice. A Government Order may be legal when it puts offences of this kind as scheduled offences, but it is contrary to the spirit of the Act and essential justice in the circumstances existing in this country, where the ordinary courts are functioning satisfactorily in reference to practically every offence, with the exception of offences against the State, armed insurrection, or something in the nature of preparation for armed insurrection or illegal association.
Where the ordinary courts are functioning perfectly, it is contrary to the spirit of the Act and to morality and justice to send these cases to the Military Tribunal. It is contrary to the public interest, apart from morality and justice, because the use of these courts destroys the whole effect intended and produces public sympathy rather than public opprobrium. You will get far more sympathy from the public if you bring the black marketeers to the ordinary tribunals  with vigour and determination rather than if you bring them to the Military Courts.
I make these observations in all sincerity. I believe it is wrong on principle to use that tribunal for these purposes. That tribunal has a value in the circumstances in which it was created, a value to deter people who may be engaged in unlawful associations, who may be thinking of engaging in illegal conspiracies of an armed character against the State. That value will be destroyed if ordinary cases which should be tried before the ordinary courts are brought before that special tribunal. I appeal to the Minister to accept this amendment in the public interest.
Mr. Lemass: I agree fully that the Act to which the Deputy refers requires that offences should be scheduled by the Government before they can be brought before the Military Court. What I meant to convey by my statement on the Second Reading was that I urged on the Government that offences against price control arrangements and rationing regulations should be so scheduled. I urged that on the ground that the ordinary courts had proved to be ineffective in dealing with those offences. I urged it on the ground that an offence against rationing regulations and price control regulations was as serious a crime against the public interest here as the other type of offences with which the court was set up to deal. The Government would not agree that all such offences should be referred to the Military Court. They would not agree, both because of the comparatively trivial nature of some of the cases and the fact that the number of the cases was so great that the Military Court could not possibly deal with them all.
I then urged that, where there was evidence of conspiracy, evidence of black-marketing activities extending outside the ambit of an individual firm, evidence that an attempt was being made to set up a wholesale business in black-market goods, the Special Court should be used—and for such cases the Special Court was used. I do not agree at all with Deputy Costello  that the ordinary courts proved adequate to deal with those offences. They did not. I have already said here in the Dáil that I will leave it in a prominent place in my legacy to whomsoever has the misfortune to be Minister for Supplies in another war, to set up forthwith some special form of tribunal to handle offences against rationing and similar regulations.
The District Courts here proved unsuitable for handling those cases. I am not going to express an opinion as to why that was so; I am not going to say it need necessarily have been so; I am pointing to the historical fact that it was so. Many district justices never imposed for rationing offences or price control offences a penalty in excess of 2/6.
Mr. Lemass: Not necessarily in the city. In the areas of those District Courts, it became impossible to preserve the rationing schemes in effective operation. Let me make it quite clear that rationing schemes can break down. In many countries in Europe the rationing and price-control arrangements have broken down, and by this stage the Governments concerned have abandoned even the effort to make them effective.
We did not reach that situation here and I think that was very largely because these major offences against rationing and price control regulations were dealt with by the Special Court and not by the District Court. I feel certain that, if we had relied entirely on the District Court, we would have got eventually into the situation where these various regulations would be treated with contempt. There was no use in prosecuting a man who had gained a profit of £500 or £1,000 on some black market deal and fining him
Mr. Lemass: It happened on several occasions. I should like to think that Deputy Costello was right in saying that juries would convict people for black market offences. I cannot say that he is right.
Mr. Lemass: In many instances, particularly in relation to tea during the earlier stages of the tea rationing, there were traders charged with black-marketing tea who were regarded as local benefactors. Whether they got the tea by chiselling the less wealthy of their customers of their legitimate supplies, whether they got the tea by buying stolen property, whether they got the tea by one discreditable device or another, they always represented to their customers that they had succeeded in getting it across the Border and, therefore, they were adding to the national supplies and serving the public interest. Of course, those who got the tea did not question those statements and, when the individual was charged with the illegal selling of tea in excess of the ration, there was always a great deal of local sympathy. It took a long time to educate the people into the realisation that rationing regulations were in their interest and were designed to ensure a fair and equal distribution of supplies and to prevent certain cute individuals from getting rich quickly by pandering to the cupidity of individuals who like to feel that they can do better than their neighbours.
I do not care what the theory is: I say that, in practice, the maintenance of rationing and price control regulations during the whole of the emergency would not have been possible if reliance were placed on the ordinary courts. Whether in another emergency this special military court exists or not, I urge now—and put it on record now that I am urging—that  the Government then in office should set up special courts for such offences. I tell them they will not succeed in making rationing regulations and price control arrangements effective unless they do so. That is my conviction. I have noted that, in most countries where effective rationing was maintained, there were such special tribunals of one form or another established to enforce the law.
Mr. Lemass: I do not want to institute a comparison between the circumstances in this country and those in Great Britain. I say there was far less evidence here of black marketing than in any other country, including Great Britain, and that was because of the measures we took to make it quite clear that those who committed black marketing offences of one form or other were not going to get off under the Probation of Offenders Act or with small fines such as the District Courts were imposing in the beginning.
Mr. Lemass: That argument about the stuff coming across the Border has long since been exploded. That was the excuse given in most cases, but 90 per cent. of the goods was got by breaking our regulations, by depriving people of the rations to which they were entitled and by the use of stolen goods, marketed by the people who stole them. Of course, the trader said the stuff came across the Border. What else did one expect him to say? Was he to say that it was stolen property? He persuaded his customers that he was doing the country a favour by getting the stuff across the Border.
Mr. Lemass: It is clear that offences under this Bill will not go before the Special Court unless scheduled. I cannot attempt to forecast the decision of the Government in that regard, but I would strongly oppose the introduction of an amendment which would obstruct the Government.
Mr. Lemass: For offences against Emergency Powers Orders. Before offences under this Bill can be sent to the Special Court, they will have to be scheduled by the Government. Even if the Government should decide not to change its policy, it will have to take the formal act of scheduling under this Bill.
Mr. Lemass: I am not attempting to forecast what the Government will decide, but I say it would be entirely wrong to deprive the Government of the power. We are by no means out of difficulty. It may be that other commodities not yet rationed will have to be rationed; it may be that new systems in the control of commodities will have to be brought into operation and kept in operation for some time yet. Knowing from past experiences the difficulties there are always, at the beginning of a rationing scheme, in getting compliance with the regulations by all traders and members of the public, I would strongly urge the Dáil not to press on the Government that it should divest itself of this power.
Mr. Lemass: The point of the amendment is that the Government should be deprived of the power of scheduling offences under this Bill so as to enable them to be tried by the Special Court. Irrespective of what the Government may decide to do in that regard, I am urging that it should not be deprived of the power because uncertainties as to the future supply situation may still make it necessary to use that power to secure effective compliance with existing rationing regulations or new regulations that may have to be made for additional commodities. I accept Deputy Costello's assurance that he is not anxious to facilitate persons who want to engage in black-marketing activities but I urge him to consider that such persons will in fact be facilitated if this amendment is carried and the power of scheduling offences to be tried by the Special Court is taken from the Government.
Mr. Costello: The Minister may accept my assurance, in all sincerity, that I have no desire to facilitate black marketing activities. Quite the contrary. But I do make this point: the Minister has stated that it took some  time to educate public opinion in this country with regard to the necessity for rationing and with regard to the desirability of the rationing schemes being adhered to. I think that process of educating and creating a proper public opinion in this matter will only be brought to its final conclusion and the position in which everybody wants it if the ordinary courts are being used. I think that the Minister's efforts and the efforts of anybody else to educate public opinion in the way that is desired will be very seriously jeopardised if the Special Courts are extensively used. The Minister said that were it not for these Special Criminal Courts the rationing system would be a failure. I would venture this opinion—and it is only an opinion —that not 1 per cent. of all the offences against the Emergency Powers Orders were brought before the Military Tribunal.
Mr. Costello: Not 1 per cent. That 1 per cent. had the effect, as I say, in some of the cases at all events, of producing in the public mind a sneaking sympathy with the people brought there but it is the 99 per cent. that were brought before the ordinary courts that gave the sanction for the enforcement of the law—not the tribunal. It was the fact that the ordinary courts convicted people of offences in cases where they were properly convictable that brought respect for the law and it is not the 1 per cent. of the cases that were tried by the Military Tribunals that brought respect for the rationing schemes or that brought respect for the enforcement of the rationing schemes or the administration of the law in reference to them. It was the 99 per cent. that came before district justices that brought it about. If the Minister was afraid, in reference to these tea cases that he referred to, that local influence might pull local juries in reference to a local merchant, the Attorney-General had it in his power to take that particular case to Dublin before a High Court judge with a Dublin jury consisting of 12 men drafted from the City and County of Dublin. I can say from some experience  of Dublin jurymen that never have they failed to do their duty in reference to matters of this kind and never would they fail to do it. I would prefer one verdict from a Dublin jury than 40,000 convictions from Military Tribunals. One verdict from a Dublin jury would have far greater effect upon public opinion and on stopping black-marketing offences and offences against rationing schemes than any number of convictions by the tribunal.
Mr. McGilligan: I understand from the Minister that his case is based upon the fact that certain District Courts in the country did not impose fines which the Minister considered sufficient in early rationing cases. Is that the situation?
Mr. McGilligan: How many times? Certainly, one of the cases that stand out in public memory with regard to rationing schemes was the tea case heard in the last couple of years, about which there was great public perturbation. The individual charged seemed to most people to be a person who should have been sent to jail, and he got off with a fine and that, I think, was partly remitted when he went to one of the ordinary courts. If it is District Courts, not in Dublin, which failed to impose sufficiently large penalties, why did not the Minister take the first step of transferring them to District Courts elsewhere in the country? They could have been brought elsewhere. They could have been brought here to town. That never was tried. Under the Constitution and under the Offences Against the State  Act, 1939, which was passed to comply with the Constitution, there had to be a solemn proclamation by the Government that in the mind of the Government the ordinary courts are inadequate to secure the effective administration of justice. I stop there. It goes on to “the preservation of public peace and order”. What was the point at which the decision was taken in relation to—as it now turns out— 1 per cent. of rationing cases to bring them before the Special Courts? Where the Minister may have thought there were not effective penalties imposed, he never took the intermediate step of seeing what a Dublin district justice would deal with these people.
My own experience in the courts here was that a considerable number of the penalties imposed by the District Court were remitted when these cases came on appeal before the circuit judge. Of course, the Minister knows full well that one of the great disadvantages of the use of the Special Criminal Court or Military Tribunal was that almost universally there was appeal taken to the ordinary courts and in a great many cases the ordinary courts thought that the Special Military Court had gone wrong on some point or other. But is it possible that what are solemnly called the fundamental rights of the citizens in this glorious document of 1937 are just to be dealt with in the way which shocked the public when the Minister told them that he came to an arrangement with the Attorney-General? It was not a question of the Government. The Minister facing me said that he came to an arrangement with the Attorney-General that certain cases would be sent before the Special Military Court. There was certainly no indication that there had ever been a question raised by the Government as to the general principles whether the courts were adequate or not to secure effective administration of justice.
The old rule with regard to these things was that there had to be proof that, say, the ordinary courts were being coerced, that there had been some system of intimidation practised against the ordinary courts. I never understood that that phrase in the  Offences Against the State Act was going to be used in this way, that some man would set himself up subjectively as the test whether or not sufficient penalties were being imposed and that he would then decide that, because in his mind the offenders were not being sufficiently harshly treated, he would declare that the system of justice had broken down. I think it is astounding to have it stated here, at this stage of our history, that the 1937 document and all the fundamental rights that are framed in it—and trial by jury one of the great rights—could be taken  away by an unnamed Attorney-General—he may be pleased to have himself brought into this picture— who, behind backs, agreed with one Minister that certain cases would be sent to the Special Criminal Courts and no reason given for that decision.
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