Wednesday, 10 October 1928
Seanad Éireann Debate
the word “adapted” when used in relation to the Principal Act means adapted by the Saorstát Eireann Forestry Commissioners Order, 1927, made on the 11th day of August, 1927, by the Executive Council under Section 7 of the Adaptation of Enactments Act, 1922 (No. 2 of 1922) and the Saorstát Eireann Forestry Commissioners (Transfer of Functions) Order, 1927, made on the 12th day of August, 1927, by the Executive Council under Section 9 of the Ministers and Secretaries Act, 1924 (No. 16 of 1924);
This amendment relates to the definition section where it is proposed to define the word “wood” and suggests that the word “wood” should be confined to an area of at least 15 statute acres. In introducing the Bill, or at some stage of the debates in the other House, the Minister suggested, I think, that it was not his intention to deal with small patches of trees, but that they should have at least an area of 15 statute acres. If this amendment is not inserted one or two trees might be regarded as a wood. I am moving the amendment in order to hear what the Minister has to say.
MINISTER for AGRICULTURE (Mr. Hogan): Of course, if this amendment is carried the Bill will not apply to any wood of 14 or 14½ acres, or to any wood the area of which is less than 15 acres. That leaves the Bill useless. It means that so far as the ordinary small plantation is concerned we might as well not pass the Bill. It means that anyone who likes can cut 2, 3, 4, 5, 10 or 14 acres, even though it may be ornamental timber or required for shelter for the holding. The amendment means that the Bill will only apply to timber covering an area greater than 14 acres. I have continually pointed out that a very large proportion of the trees in the country, such as grow in ditches and hedges, are in areas of less than 14 acres, and if this amendment is carried it really would take away the operation of the Bill from 75 per cent. of the timber of the country. In fact, it would take away the operation of the Bill from the timber that really needs protection. No one ever cuts down a  big wood wholesale. What we are trying to do is to prevent the cutting of nice young plantations of eight or nine acres or less. I would ask the Senator not to press the amendment as it would ruin the Bill.
(1) It shall not be lawful for any person to cut down or uproot any tree unless, not less than twenty-one days before the commencement of the cutting down or uprooting of such tree, the owner thereof or his predecessor in title or some person on behalf of such owner or predecessor shall have given to the sergeant in charge of the Gárda Síochána station nearest to such tree a notice in writing (in this Act referred to as a felling notice) of intention to cut down or uproot such tree.
(2) Every felling notice shall be in the prescribed form and shall state the name and address of the owner by or on whose behalf such notice is given, a place in Saorstát Eireann at which documents may be served under this Act and such other particulars as may be prescribed.
(3) If any person cuts down or uproots or causes or permits to be cut down or uprooted any tree in contravention of this section, he shall be guilty of an offence under this sub-section and shall be liable on summary conviction thereof to a fine not exceeding five pounds for every tree so cut down or uprooted or  caused or permitted to be cut down or uprooted.
(4) If any person makes in a felling notice any statement which is false or misleading in any material respect he shall be guilty of an offence under this sub-section and shall be liable on summary conviction thereof to a fine not exceeding twenty-five pounds or, at the discretion of the Court, to imprisonment for any term not exceeding three months.
(5) This section shall not apply to any tree in respect of which a permit has been granted by the Minister under this Act so long as such permit is in force, nor to any tree in respect of which a licence has been granted by the Minister under this Act, nor to any tree the cutting down of which is authorised under Section 34 of the Local Government Act, 1925 (No. 5 of 1925), or Section 98 of the Electricity (Supply) Act, 1927 (No. 27 of 1927), nor to any tree which is the subject of a contract for the sale thereof made before the 1st day of April, 1928, where particulars of such contract verified in the prescribed manner have been furnished to the Minister within one month from the commencement of this Act and such tree is cut down or uprooted within six months from the commencement of this Act.
I made it clear on the Second Reading debate that I opposed this principle notwithstanding that it was thought to be obviously capable of amendment. Although I do not think this calls for amendment as much as other items, various people who have to do with forestry operations have represented to me that a good deal of inconvenience and delay is liable to be caused by their being unable to do anything until three weeks have elapsed. I, therefore, put forward this amendment to reduce the delay by the extent of one week. I think that the period mentioned gives  plenty of time for the making of the necessary inquiries and reduces the holding-up process.
Mr. HOGAN: The Senator would be a better judge in this matter than I am, but it appears to me that where a man who owns a wood intends to cut it he comes to a conclusion a few months before that. I should say that in very rare cases would a man come to a conclusion about cutting a wood within a week. As a rule, a man knows his intentions for twenty-one days or a month or two months, and he has his mind made up that he is going to cut or to sell certain trees. The other side of the matter is that the Forestry Branch of the Department considers this matter from the point of view of facilitating the public and is anxious to make the period as short as possible. I may say that it is the considered view of the Forestry Branch that it will be extremely difficult as an administrative matter to deal with applications within fourteen days. After all, if there are any inquiries at all to be made, there are some cases where they cannot be dealt with within fourteen days. It is the considered view of the Forestry Branch that at least twenty-one days is the minimum period necessary in some cases. In other cases they may make up their minds at once. I would put another point of view to the Senator, and it is this: Supposing the view of the Forestry Branch was right, and that in a great many applications it was found necessary to make inquiries which last over twenty-one days, that they were not able to get all the facts within 21 days or a fortnight, they have a way out of the difficulty, as they can serve a prohibition notice at once, make their inquiries at their leisure, and give a licence to cut afterwards. That is not exactly a benefit to the owner. It would be very much better for him that the Forestry Branch should be in a position to make up their minds within twenty-one days than to serve a prohibition notice in order to get time to make the necessary inquiries and then to give a licence. I am afraid if the amendment is carried that that will be the effect. I do not know much about woods myself, or about the timber trade. The Senator is a better  judge whether it is a real inconvenience to a man to have to wait twenty-one days instead of fourteen days when he makes up his mind. I would ask him to remember that it is the considered view of the Forestry Branch that they will not be able to get all the information they require within fourteen days.
This is a case in which bona fide mistakes can be made with regard to cutting trees other than those of which notice was given. Owners of trees are often not very well educated and very often those whom they employ may be ignorant men in matters where papers are concerned. It is very easy to see how a penalty could be incurred through a mistake. The men actually cutting the timber may misinterpret what they are told by the owner or by the owner's representative who obtained the permit. I think there ought to be some safeguard under this Section so that a person would not be liable to a fine of £100 which he would incur through a mistake to the extent of cutting twenty small trees. I think it is evident that cases might occur through a genuine mistake.
Mr. HOGAN: Of course, that is the maximum fine. Where trees are cut by mistake and where there is a licence to cut a wood and the workmen cut not only the wood but in addition a plantation, is there any likelihood that an owner would be mulcted in the way suggested? It would be, first of all, for the Department to say whether there would be a prosecution and, of course, it would take into account a bona fide mistake if there was any evidence to that effect. When the case came before the District Justice or the appropriate Court if the owner could show what happened and his bona fides there is no compulsion on the Judge or the  District Justice to impose the maximum fine. He might impose a fine of a penny or a farthing or he need not impose any fine if he wishes. There will be very few cases in which the Forestry Branch can step in and say to an owner: “You cannot cut these trees down.” Assuming for the sake of argument that they are exercising these functions pretty widely and that this amendment is carried, a man might cut a big wood somewhere in Wicklow, near Bray, which for some reason—it might be a representation from the Tourist Development Association— should not be cut. It might be a valuable one. It might be well worth a man's while simply to carry the penalty of £100 and cut the wood.
Mr. BAGWELL: I quite appreciate what the Minister mentions and on the Report Stage I propose to bring in an amendment of the same character as I have moved with the addition of words —“unless warning shall have been given and deliberately disregarded.” That would meet the case that the Minister mentions.
CATHAOIRLEACH: A deliberate attempt to evade the section. I do not think warning would be sufficient. Perhaps on the whole it would be better to withdraw this amendment and bring it on again in a different form on the Report Stage.
This is a rather important amendment, because it guarantees in the first instance to the person who plants a tree the right to cut it down when it suits him. We must remember that the owner of the land, whether farmer or landlord, has been paying for it for years, by rent, rates and taxes. It is only right that he should be permitted to cut down a tree in order to recoup himself for the outlay and the expenses that he incurred. It may be said that trees are the property of the nation and not of the individual. I hold that if the nation wishes to become owner of the trees that the individual who went to the expense of planting them should be paid, seeing that he also paid for the land during the period of their growth.
Mr. HOGAN: I would point out to the Senator that if this amendment is passed it will exempt every tree in the country. The Bill will read: “This Act shall not apply to any tree which was planted by the owner of the land or his predecessor in title.” You would simply repeal the Act, because every tree has been planted by the owner of the land or his predecessor in title.
(1) Where a felling notice contains a statement that a tree is being cut down or uprooted for a specified purpose, it shall not be lawful for  any person to use or deal with such tree or any substantial part thereof or cause or permit the same to be used or dealt with when cut down or uprooted in pursuance of such felling notice for any purpose other than the purpose so stated in such felling notice.
(2) Every person who uses or deals with a tree or any part thereof or causes or permits the same to be used or dealt with in contravention of this section shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding five pounds for every such tree.
(1) Whenever a felling notice has been given in respect of any tree the Minister may, unless such tree is an exempted tree within the meaning of this section, within but not after twenty-one days from the date on which such notice was so given make and serve on the owner by or on whose behalf such notice was given or his successor in title an order (in this section referred to as a prohibition order) in the prescribed form prohibiting the cutting down or uprooting of such tree.
(2) Every prohibition order shall be served either by delivering the same to the person on whom it is to be served or by leaving it for him with a person of the age of sixteen years or upwards at the place named in the said felling notice for the service of documents under this Act.
 (3) Where a prohibition order has been made in respect of any tree and has been duly served in accordance with this section, it shall not be lawful for any person to cut down or uproot or cause or permit to be cut down or uprooted such tree unless at the time such tree is cut down or uprooted or caused or permitted to be cut down or uprooted a licence has been granted by the Minister under this Act in respect of such tree.
(4) If any person cuts down or uproots or causes or permits to be cut down or uprooted any tree in contravention of this section he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding five pounds for every tree so cut down or uprooted or caused or permitted to be cut down or uprooted.
(d) a tree which is not necessary for the ornament or protection of the holding on which it stands and is stated in the felling notice to be intended to be cut down for the purpose of using the timber thereof for the construction or repair of buildings, fences or other structures on the said holding or another holding belonging to the owner of such first-mentioned holding, or on a holding belonging to another person in the immediate neighbourhood of such first-mentioned holding,
(g) a tree in respect of which it is stated in the felling notice that such tree is standing on land purchased before the 1st day of April, 1928, and that the whole or some part of the purchase-money of such land was lent to the purchaser thereof on the terms that such tree should be cut down and sold and the proceeds thereof applied in or towards repayment of such loan and that such loan or some part thereof is still owing at the date of such felling notice and that such tree is being cut down for the purpose of complying with the said terms of the said loan.
Mr. HOGAN: The effect of passing this amendment would be that the owner of any wood would be free to go around and cut a ridge 33 yards deep. I should say that a very big percentage of the trees of the country are within 33 yards of some wall, and you can rebuild a wall at any time.
Mr. HOGAN: Leaving out the difficulty of the wall the Senator will agree that a very big proportion of the trees are within 33 yards of a wall, and if not, a wall could be rebuilt easily. But apart from that it would be a very serious thing. The amendment would simply make hay of the Act by allowing a person to cut without any restriction any tree within 33 yards of any wall. Imagine what would happen. The owner of the wood would measure 33 yards and cut away. This amendment would render the Bill useless.
Mr. BENNETT: I regret to say that Senator Colonel Moore is ill. He has asked me to move amendment No. 9 standing in his name, but I ask permission that it be taken on Report Stage, when I hope he will be here to move it himself. I do not understand it very well; otherwise I would move it myself.
I hold that it is much more important for the welfare of the country that there should be no impediment to tillage operations and to the cultivation of the land for crops, and the saving of crops, than the preservation of scenery. It would be all very well if we could live on scenery, but, unfortunately, we cannot, and I hold that any clause which would hamper the farmer in carrying on his tillage operations is one which would be not only injurious to agriculture, but to the whole country. Anyone who has any experience of tillage operations knows that in very many cases it is impossible to till land where trees are situated in such a way as to prevent the wind from drying the crops or the sun from shining on them. I am sure if such a question as that were left to the Department itself, and if permission were  asked to cut those trees which it could be shown were injurious to tillage operations, they would raise no objection to giving permission to have them cut down. However, I think it ought to be stated clearly in the Bill that it is the intention of the Seanad that no obstacle shall be put in the way of farmers who desire to carry on tillage.
CATHAOIRLEACH: That is the difficulty that struck me at once, Senator. Apparently you leave the owner of the tree himself to determine whether it is necessary to remove a tree or not. That would leave a tremendous loophole for evading the provisions of the Act. Should you not say that the Department should be satisfied?
CATHAOIRLEACH: Your amendment leaves it entirely dependent on his mind, whereas if you put in some words such as “subject to the permission of the Department,” it might not be objectionable. I do not know.
Mr. BROWN: But is the farmer not protected by the Bill as it stands? Supposing that there is a tree of this kind that interferes with the proper cultivation of his farm under the Bill, he would serve notice of his intention to cut the tree. It would then be for the Minister, and the Minister would then have to take into account the circumstances that this tree is alleged to interfere with the farm, which would certainly induce the Minister to give him permission.
(h) a tree forming portion of the timber on any lands when such timber forms a substantial portion  of the security for money advanced as a mortgage of or payable in respect of a charge upon such lands, provided (i) that such mortgage or charge was an existing mortgage or charge at the date of the passing of this Act, and (ii) that the felling of any such tree is for the purpose of a sale the proceeds whereof are to be applied in payment of the moneys secured by such mortgage or payable under such charge.
This is an amendment intended to protect mortgages and persons who have charges on land, which charges were in existence before the passing of this Bill. There must be a large number of cases in which money has been lent on the security of land on which there is a considerable amount of timber. There are certainly many cases of family settlements where a good deal of the security for family charges for younger children and that kind of thing consists of demesne timber. What this amendment seeks to provide is this, that where a substantial portion of the security for a loan on mortgage, or a substantial amount of the security for a charge on an estate, not necessarily in the shape of a mortgage, consists of timber, that timber should be outside the provisions of this Bill, provided that the mortgage or the charge was created before the passing of the Act, provided that the timber is a substantial portion of the security, and provided also that the proceeds of the sale of the timber are to be used in paying off the mortgage or charge. I think that is necessary.
Mr. BENNETT: Does not the same objection that Senator Brown pointed out to the previous amendment arise on this also—“a substantial portion,” according to the owner of the trees, Who is to say it is a substantial portion  or not? Senator Brown found it bad when the owner of the land—the farmer —was to decide. In this case I submit that the owner of the mortgage has to decide. Why should not some provision be put in requiring the Department to decide whether the portion is sufficient or not?
Mr. BENNETT: Why should the mortgagee be entitled to decide against the Government any more than the owner of the land? I agree with the amendment, but I think it would be very easy to put in a provision that mortgagees and others should submit to the Minister.
Mr. JAMESON: Well, when you are passing an Act of that description it is surely well to protect the people who honestly and according to the law have got a certain charge on the land, part of the bargain being that the woods should be sold and the money paid out. Unless you put in some such amendment as this, this Bill will take away all the rights that the man who lent this money had when he made the loan. I think the word “substantially” describes the whole situation. You are not going to allow them to interfere in a petty matter, but where a large loan has been given on property, and where one of the conditions was that certain woods were to be sold to pay off all the money advanced, are we to pass an Act which deprives the man who lent the money of any chance of getting his money out of such a wood? Surely it is wise to put in an amendment to protect his rights. That is all that this amendment seems to me to do. This and the other matter with which we have been dealing are two very different questions. It would be for the Minister probably in these circumstances  to decide whether a claim which is put in by the mortgagee or the owner of the charge is a right one or not, and the Minister will very easily be able to decide whether a man is putting up a trivial case in order to cut down a wood which should not be cut down, or whether it is really a matter of depriving someone of a right to which he is perfectly entitled.
CATHAOIRLEACH: Senator Bennett approves of the amendment. The point he has raised, however, is one that requires a little attention. He said that the amendment in its present form leaves it in the power of the mortgagee alone to determine what is a substantial portion. I think that that is an infirmity in the clause. I think that Senator Brown sees that, and I think it could be very easily amended by the insertion of some words.
CATHAOIRLEACH: It is a little technical, perhaps. Before this Act a number of these properties in the hands of peasant proprietors, as they are called, or in the hands of the original landlords, have been made subject to mortgages; that is to say, they have been pledged as security for money advanced. A substantial part of the security may be timber. Therefore, it is the mortgagee's property and not the owner's property, and you are ensuring that you can cut timber in a case of that kind. The mortgage carries with  it for the benefit of the mortgagee everything on the land, including the timber, and it may very well happen that the timber is the real security therefore it is a real matter of equity.
Mr. O'FARRELL: I know it does not. But let us take the case of the man who buys land on which there is a considerable amount of forest. He pays his own money and wants to cut down the timber, but the Minister comes along and prevents him doing so.
Mr. O'FARRELL: I am taking the case of a man who buys land, on which there is a forest, without a mortgage. He pays for it himself. He wants to cut it and looks for permission to do so; but the Minister, in the interests of the appearance of the place, or for some national purpose, prohibits him from cutting these trees and gives him no compensation. If instead of buying that land with his own money he had raised a mortgage on it the bank, or whoever advanced the money, has the right to cut it. He must be allowed to provide the timber as a substantial portion of the securities of the land. It all depends on how the land has been got. If a mortgage has been raised on it the timber must be cut, but if the man paid his own money and there is no mortgage on it he can be prevented from cutting it and there is no compensation. Why compensate the mortgagee when you will not allow the ordinary owner to cut it when it is his property? I fail to see where the equity comes in there. Simply because a mortgage has been raised the timber must be cut, no matter what the national interests are. If not the owner is not allowed to cut it and there is no compensation. I see no equity in that arrangement.
Mr. HOGAN: Of course the man the Senator refers to is a man who has bought in the past, not one who buys in the future, because in the future anyone who buys land like that does so with his eyes open—when he buys land he knows he can be prevented  from cutting down the timber. But the Senator is taking a case where a man has bought land with the intention of cutting down the trees.
Mr. HOGAN: He has no grievance if he bought land and considered that he got good value for the money he expended by reason of the area of land he got. He did not consider that the timber was a substantial and a valuable portion of the holding. There is, of course, something in what the Senator said, but supposing you agree with his point of view do you not open the door very wide? Any man who bought land ten, fifteen or twenty years ago might say: “I had an eye on it for the trees. It is true that I did not cut them, but I intended to do so.” A very big proportion of land has changed hands in the last twenty-five or thirty years, and it would be open to anyone to say: “Well, I had intended to cut and sell the timber, but for one reason or another I did not do so.”
Mr. O'FARRELL: The Minister has misunderstood me. I am not asking that such a person should be allowed to cut his timber, but I am objecting to a mortgagee being allowed to cut timber. The Act should operate in strict equity in both cases, and if you, do not allow men who have bought land to cut the timber you should not allow a mortgagee to do so either.
Mr. DOUGLAS: I think that logically what Senator O'Farrell has said is probably correct. We are passing this Forestry Bill because we believe the Bill itself is good for the country, and we are anxious to set up a state of affairs which will prevent the destruction of the trees of the country. If a man has bought land, having been obliged to borrow, with a mortgage on that land, having obtained the mortgage because of the fact that there were trees on it which he was about to cut down, if this Bill suddenly comes into effect and no provision is made for that it means that this man has bought his land, there is a mortgage, and he is liable to be pressed for the payment which he undertook to make at a certain  time, which would allow time for cutting down the trees, and a very real hardship would be imposed on the owner of the land. Senator O'Farrell, logically, I think, is correct, but he assumes that the only hardship is against the bank, or whoever holds the mortgage. The hardship cuts both ways, and for that reason, though in the strictest logic it may be that we should make exactly the same provision for the man who had the money and could afford to buy the land as for the man who had to borrow in order to cut down the trees afterwards to pay it, I do not think from the point of view of avoiding a real hardship it is wise to act according to strict logic.
Mr. FARREN: Unfair discrimination will be carried out if this amendment is passed. It appears to me that the whole substance of this amendment is to protect moneylenders. That is the brutal fact. In 1919 and 1920 a large amount of land changed hands. Numerous farmers added to their holdings by buying land. Some of them bought it with a view to selling some of the timber, and in this Bill it is proposed, that these people shall not be allowed to cut the timber unless with the permission of the Department. But the amendment proposes that where money has been lent to the man who bought the land the moneylender is to be protected, though the real farmer is not to be protected. I think it is absurd to give moneylenders facilities to cut down woods because they lend money to the farmers, whereas if a man bought land with his own money he is not allowed to cut down his wood. I think that the amendment is ridiculous and unfair.
Mr. BENNETT: There is a danger, in a case where there is a mortgage on a place, that if the trees cannot be cut down the mortgage will be foreclosed. It would be a pity that a man should be deprived of his holding because money was advanced by banks specifically  on a certain security, and that that security is being taken away by this Bill.
Mr. HOGAN: We can see whether the amendment is necessary or not afterwards. But in this case the amendment is intended to cover a mortgagee where it is specifically stated on the face of the mortgage that the timber is the security. That confines us straight away to a limited number of cases and puts us almost exactly on a par with the case of a man who has contracted to sell the timber before the passing of this Bill, and in such a case the owner should be protected against the operation of this Bill. I think the same should apply in this case, when a man has lent money to be paid by the timber.
Mr. HOGAN: I do not think that that is so at all. I am not a banker, but I think there are only a limited number of mortgages where the security is specifically set out as timber. I am practically certain of that.
(2) A licence granted under this section may, if the Minister so thinks fit, contain a condition that the licensee shall, within a specified time (not being less than twelve calendar months) after cutting down or uprooting a tree under the licence,  plant one or more trees of a specified kind on the holding on which such tree was cut down or uprooted and if in any such case the licensee fails to perform such condition within the time specified in that behalf in the licence he shall be guilty of an offence under this section in respect of every month during which such failure continues and shall be liable on summary conviction of any such offence to a fine, in the case of a first offence in respect of any particular licence, not exceeding five pounds and, in the case of a second or any subsequent offence in respect of the same licence, not exceeding ten pounds.
(3) Before granting a licence under this section to cut down or uproot a tree on a holding which is for the time being subject to an annuity payable to the Irish Land Commission the Minister shall have regard to the security for the payment of such annuity.
Mr. LINEHAN: I move:—
Section 8, sub-section (2). To add at the end of the sub-section the words “but the owner of such tree may refuse to accept such licence if the conditions attached thereto seem to him unreasonable.”
CATHAOIRLEACH: Is that required? Is he bound to accept the licence?
Mr. LINEHAN: I take it from the clause that it is intended.
CATHAOIRLEACH: If you have a licence it means that you can do a thing if you wish, but it does not compel you to do it.
Mr. LINEHAN: But there is a penalty in the section for not carrying out the condition.
CATHAOIRLEACH: Yes, but if he refuses to take a licence at all, has he not got his remedy?
Mr. LINEHAN: That is what I wanted to make clear.
CATHAOIRLEACH: I mean that where an Act of Parliament provides that a man cannot do a thing unless he gets a licence, when he gets the licence  he is not bound to do it. If he does it he must do it under the terms of the licence.
Mr. LINEHAN: Take the case of a man who gets a licence to cut a tree with certain conditions. If he does not comply he is liable to very severe penalties.
CATHAOIRLEACH: But he has got to cut the tree first.
Mr. LINEHAN: It does not say so in the section.
CATHAOIRLEACH: His remedy is very simple; he need not cut a tree.
Amendment, by leave, withdrawn.
Section 8 put and agreed to.
Mr. BAGWELL: I move:—
New section. Before Section 9 to insert a new section as follows:—
9. When a prohibition order has been served or a licence withheld, an appeal on the ground that the action of the Minister having regard to all the circumstances is not reasonable shall lie to the Judicial Commissioner.
New section. Before Section 9 to insert a new section as follows:—
9. When a prohibition order has been served or a licence withheld, an appeal on the ground that the action of the Minister having regard to all the circumstances is not reasonable shall lie to a judge of the High Court nominated for this purpose by the President of the High Court.
These two amendments really stand together. It is remarkable, I think, that this Bill, which permits of an interference with the liberty of the individual to do what he likes with his own to, I think, an unprecedented extent, should make no provision for an appeal in law.
There is no provision whatever for any appeal at law against an unreasonable or tryannical withholding of a permit. The point has been put to me that the amendment would set up an impracticable state of affairs because the judge would, in fact, be made head of a technical department. But I am not impressed by the point, as judges are constantly being called upon to  adjudicate upon matters about which they know very little. But, as men of brains and experience, trained in dealing with evidence and being also in a position of great independence, they are specially qualified to dispense justice. An appeal at law is a great safeguard of liberty and right, and if provided in this case is not really likely to lead to any undue difficulty or confusion. No one will appeal and run the risk of considerable expense unless he feels that he has a real grievance, nor would a judge be likely to reverse the decision of the Minister unless he were fully convinced that a real case of injustice did exist. We are legislating for all time, but while the Bill remains as it is we have no guarantee for the future. I hope that the House will realise that if the Bill is passed in its present form, so far from tending to make Ireland a better wooded country it will tend to have precisely the opposite effect, because people will not incur the expense of planting and maintaining woods and paying rates and taxes upon them for many years if they have no guarantee that, when the time comes, they will be able to realise the value which they have themselves created.
These are my reasons for moving these two amendments. I hope that the Minister will accept one of them, the one which he thinks the more convenient. If he does not like either of them perhaps he would say which he considers the least objectionable. I have put down the alternative amendment because I can see myself the advantage of the one over the other.
Mr. BROWN: Notwithstanding the number of obvious difficulties about an amendment of this kind, I am in favour of it. This Forestry Bill is certainly the most autocratic legislation that ever was introduced in a democratic Parliament, and nothing but the good of the country could justify a measure like it. We agreed that the good of the country was so obviously at stake that this Bill ought to pass its Second Reading. We did give it a Second Reading, but at the same time a number of us felt that we ought to do our best, as far  as would be possible consistently with the good of the country, to protect the private citizen who owns trees. That is the object of this amendment. What are the objections to it? I know the great objection to it on the part of the Minister is this: that it practically takes the administration of this Act out of his hands and puts it into the hands of the Judicial Commissioner, if one form of the amendment is passed, or into the hands of a Judge of the High Court in case another form of it is passed. To a certain extent that is true. An amendment giving an appeal of this kind is only justified because there never was a Minister put in the position in which the Minister is put under this Bill. We are not sure of an apostolic succession of Ministers like Mr. Hogan. If we were, this amendment would probably not be necessary. We are not assured of that, and therefore I submit that it is absolutely necessary that some protection should be given to the ordinary citizen against what, in the future, may occur —some unsatisfactory decision of the Minister under the terms of this Act.
Now so much for the principal objection to the amendment. The other objection which I foresee is this: that it is not a usual thing to give a judge the right of deciding questions of mere administration of Acts of Parliament. He is there to construe an Act of Parliament and not to decide what is the proper mode of its administration. To a certain extent that is also true, but you must remember that the due administration of an Act like this depends on questions of fact, and dozens of our Acts do give to a judge the right to decide an appeal on questions of fact. Furthermore, the appeal under the first of these amendments, that is to the Judicial Commissioner, which is the one that I prefer, gives the right of appeal to a judge who, although he is a member of the High Court of Justice, is also the head of a great department and is himself engaged five times out of six in performing his duties in purely administrative work. Therefore, you are not really against the principle that a judge should not be a referee on mere matters of administration. I  submit that this is an amendment which the Minister ought to accept.
Sir THOMAS ESMONDE: The general purpose of this Bill has my hearty support. I imagine it was conceived in the interests of forestry in this country. I am and always have been very much interested in Irish forestry and in the re-afforestation of the country, having planted trees extensively myself. It seems to me, however, that the Bill confers very stringent powers on the head of the Agricultural Department. I presume that under this Bill he will have the decision in all forestry matters. It seems fair and reasonable that there should be some appeal against the decisions of the Department on questions relating to the cutting down of trees which people themselves have planted. I did not quite follow Senator Brown in his disquisition on the proper course to adopt, but the Senator is in a very much better position than I am to deal with these matters. But on the general principle that the Senator supported, I feel myself quite in accord. The Senator reminded us that there is no apostolic succession in the head of the Department of Agriculture or the forestry branch of it.
It may be that to-morrow or the next day or perhaps some years from now there may be a change in the head of that Department, and I think it would be just as well if those of us who are interested in forestry could be assured that we would receive sympathetic consideration at the hands of the public generally. It would be well, too, I think, if individual owners of woods who felt they were aggrieved by the decisions of the Department of Agriculture were given some chance of appealing against these decisions. As far as the general principle of the Bill is concerned. I am thoroughly in accord with it. This is a very important question for this country, and I am very glad that the Minister has found time to deal with it. I wish the Bill in every sense a complete success. It may be advisable, for the purpose of reassuring people who are really interested in forestry, that whatever complaints they may have in the future against the administration of the Act will be attended  to by the Department of Agriculture. To my mind the best way to do that is to give to those people the statutory right of appeal against any decision which may seem to them to work hardships or injury in their cases.
Mr. BENNETT: This Bill confers certain powers on the Minister for Agriculture in regard to afforestation. The amendment before the House, to my mind, proposes to take that power from the Minister and leaves it to the Judicial Commissioner or a member of the High Court to decide what amount of afforestation is necessary in the country and what is not. I do not think that is desirable. If a mistake has been made by the Minister and if in consultation with his foresters he decides that a wood ought not to be cut down—even if he makes a mistake in deciding that—then I think those people who pretend to give lip service to forestry ought not to grumble, because after all, will we not have more trees in the country as a result of the Minister's mistake? I think if the House were to accept these amendments they would be cutting fundamentally across the whole Bill. In the Bill the Minister is set down as the authority to decide all these questions. Under these amendments it is proposed to set up a new authority in the person of a Judicial Commissioner or a Judge of the High Court. I do not think the amendments are desirable, and I am not going to support them.
Sir JOHN KEANE: The more one looks into this Bill the more obscure it becomes. The Minister is given the power of prohibition. It is entirely in his discretion whether he will grant a licence at all or not. He may simply stand on the form of prohibition order and give no reason. He may issue or refuse a licence. If he issues a licence he may attach to it conditions for replanting. Suppose he says that he will not issue a licence he is not bound to give any reason. He may consider that trees which the owner desires to cut down have an æsthetic value, and for that or for some other fantastic reason he may refuse a licence to cut. I think that is a very dangerous position to put him into. The Minister may say that a whole wood is necessary for  some æsthetic purpose, and while he gives no compensation to the owner he may keep the trees growing, though they are deteriorating year by year, and there would be no appeal. All that is implicit in the Bill. I think that the Minister should give his reasons in cases where he refuses to give a licence. I think that this House should safeguard in some way the conditions under which licences are granted. They are to be granted on the prescribed form, and that is all we know. The amendment, so far as it gives protection to an owner, is welcome. By Section 8 of the Bill the Minister is already given power to do exactly what he likes, to make a prohibition order or not. Then follows the licence if the Minister chooses to give it, but only if he chooses to give it. In this case the House should insist that safeguards are provided for the owner.
Mr. HOGAN: The intention of the amendment is quite clear, that the owner is to have the right of appeal either against a prohibition order or the refusal of a licence. It gives him the right of appeal in any event. Senator Bagwell spoke of an appeal in law. What is the law? The forestry branch of the Department of Agriculture refuses a licence. They do not give any reasons. Assume, for the sake of argument, that there is an appeal in the case of a man who has been refused a licence to cut a wood because it is a good shelter belt, valuable not only to himself but to his neighbour. Under the Bill as it stands he is refused a licence, and there is no obligation to state any reasons. Supposing the amendment is passed and he is given the right to appeal, what law is the Judicial Commissioner to administer? What are the considerations that he is to take into account? The man has been refused a licence. He goes before the Judicial Commissioner and says that he wants to cut these trees, that the Department prevented him from doing so, and that he wants an order from the judge enabling him to cut. What are the considerations that the judge is to take into account? Remember it is not the Minister in these matters that counts. It is the forestry branch of the Department itself. That  always has been the way, and always will be the way. Of course, the Department's policy is coloured by national policy. But in detail the policy of the Government of the day goes down through the departments. Subject to that, it is the branch of the Department itself that carries out that policy.
When speaking, Senator Bagwell stated that he thought that possibly one effect of this Bill would be to prevent people from planting trees, because when the Bill is law there will be no real security for them that they may cut the trees when they are ripe and fit for cutting. But by giving the right of appeal to a judge is there not the very same uncertainty? The judge may prevent people from cutting because the judge is in exactly the same position as the Minister for the reason that he has no law to administer. He is merely performing an administrative act. He has no law whatever to guide him. He will act merely on his own opinion, the opinion of one irresponsible man. When I use the word “irresponsible” I mean it in the sense that the judge is not responsible to the Dáil or to any elected body. He is absolutely independent and may do what he likes. He can afford himself the luxury, in a case of this kind, of having no law to administer, and can simply take into account only his own personal views on the question of forestry. He can make these the views of the forestry department.
I agree with Senator Brown that this is a drastic Bill. There are certain powers in the Bill given to the Minister which are very wide. Pretty wide powers are given to the forestry branch. But, after all, the Minister is responsible to somebody. He is elected by the people and he must be a member of the Government. There must be a majority of the people of the country behind that Government. For the moment, he is responsible to them. His actions may be questioned every day. On the other hand, the amendment proposes to give to a judge complete and supreme administrative powers with no law of any kind to guide him, making him absolutely independent, and giving him the  right to do what he likes at his own sweet will, and in such a way that his judgment cannot be upset. The judge, as I have said, is not responsible to the Dáil or to any elected body. His judgments are as likely to be fallible as the judgments of the person who happens for the time being to be at the head of the Department. He may be in forestry matters a crank, to put it that way. He has no national policy to guide him, and yet under this amendment he is to have all these autocratic powers that the Minister should not get.
I ask Senator Brown whether he agrees with this as a general principle; that it is not nearly so dangerous to give, let us say, the political head of a department these powers as it is to give them in an unlimited way to a judge. The political head of a department is not independent. He is responsible to the Legislature. He can always be criticised and he can be dismissed. If you once give a man who is absolutely independent, who has no responsibility to anyone, unlimited powers, without any law to guide him, then, in my opinion, you have a real autocrat, and one autocrat may be just as bad as another, given equal powers. Possibly the giving of autocratic powers to a judge may be the worst of the two in the long run. Though perhaps it may be unusual to give the Minister the powers asked in this Bill, the situation is unusual, but I put it to the Seanad that it would be three times and ten times as unusual or unsound to give these administrative powers uncontrolled to a judge who is independent and irresponsible. I use “irresponsible” in the sense that the judge is not responsible to anyone but to his own opinions.
I am against this amendment because I think it is unsound. In my opinion, if the amendment were inserted in the Bill, I think the correct course for the political head of the department would be simply to tell the forestry branch not to issue any prohibition orders at all. I think he would be bound to do that in the long run. Governments change and times change. The forestry position may be entirely different in five or ten years to what it is to-day. It may be such as to force whatever  Government is in power to adopt a definite line on forestry matters. They will be debarred from doing that if this amendment is inserted unless they repeal this Act. It will not be their policy that will be administered, but the policy of the judge. I think there is no doubt of that. If the amendment is inserted it is not the policy of the Government of the day that will persist in forestry matters, but the policy of the judge, and the judge should not have a policy on forestry or any other matter.
EARL of WICKLOW: I think the Minister is better able to convince this House on any matter that comes before it than anyone I ever listened to. I know quite well that he can be very convincing and that his manner is very plausible. His arguments were so nice as almost to carry me away. That, of course, is all very well. We know, of course, that as long as the present Minister is at the head of the Department that we can all feel quite happy, but the question that presents itself to us is: who is going to follow him? Is it unreasonable that we should ask to have an umpire to whom we can appeal? What would the position be if we were to have a Minister who had a fad that under no circumstances should trees be cut down, a man who looked on trees as a sort of ancient monument that had got to be preserved at all costs.
Mr. HOGAN: What is to prevent a judge having a fad that no trees should be left standing?
EARL of WICKLOW: I suggest that you should put something into the Bill to guide the Minister, a clause giving the Minister power to prohibit the cutting of trees, but providing that he shall not make that order without having regard to the ordinary principles of good forestry. If that is done, then all the judge will have to decide is whether or not in his order the Minister has had regard to the principles of good forestry. The aggrieved person can go before the judge and produce expert evidence on the matter. It will then be for the judge to decide whether or not the Minister, in making his order, has had regard to the principles as set out by the expert evidence. That  is a thing that I think judges are called upon to do every day. The very fact that it would be necessary for the aggrieved person to produce expert witnesses would, I think, be a safeguard to the Government against a lot of tiresome and vexatious appeals. In the nature of things it would cost a good deal to produce expert evidence and to bring appeals, and no one would think of doing so unless he thought he had a reasonably good case. I hope that the Minister is not going to sit absolutely tight on his objections to allowing some sort of appeal on this question.
Mr. KENNY: Speaking on a previous occasion on this Bill I stressed the point as to the anxiety that would naturally arise in the minds of those with forestry plantations as to what was happening, as to what mental processes were operating in the Minister's mind during the twenty-one days, or as to whom he would take into consultation in arriving at his decision regarding the granting of a permit or the issuing of a prohibition order. That was the dark period with no means of lifting the veil to see what was going to emerge at the end of the twenty-one days. The Minister stated that the amendment proposed to leave the right of appeal to a judge who is uncontrolled and who can exercise his own sweet will in deciding the matter placed before him, but I submit he is controlled by the law as it stands. I do not think judges can lightly set aside Acts of Parliament and give decisions just according to their own sweet will. The Minister has to state reasons why he arrives at a decision not to grant a felling order, so that there is something tangible to go on in knowing what is influencing the minds of his advisers. There are equities in the case that have to be considered. The owner has a right to his trees, and if that right is filched from him he has a certain grievance. I think he is entitled at least to know why a prohibition order was given against him. As the case stands he has no opportunity of even forming his own opinion as to whether the Minister's order is well-founded or not. In my opinion the Minister should be bound to give his reasons for the prohibition order.
CATHAOIRLEACH: I was suggesting to the Minister that the case might be met if the statute when providing for the granting of a permit or the issuing of a prohibition order were to compel the Minister to state his reasons, and then go on to give the person aggrieved an opportunity of bringing fresh evidence before the Minister and not before an outside tribunal. The Minister himself might be glad of that, and he might find that he had been misinformed and had issued an order on wrong assumptions. Therefore, if he states his reasons the individual who owns the property would know all the reasons, and if he is able to contest them he gets another opportunity of doing so. I think that might be a reasonable way out of the difficulty.
Mr. BROWN: Whatever happens the amendment, there ought to be an amendment on Report carrying out what is suggested, that the Minister ought to give his reasons. If there is an appeal that would be well, and if there is not an appeal it would be necessary.
CATHAOIRLEACH: The appeal is a difficult matter.
Mr. BROWN: A very difficult matter.
CATHAOIRLEACH: I think any Minister, no matter who he is, has a responsible position, and if he were satisfied on fresh statements made to him that the reasons given on the faith of representations made to him could not be sustained, in 99 cases out of 100 he would say so.
Mr. HOGAN: I will try to give effect to that on Report.
Mr. DOUGLAS: Would it not be possible to have the permit issued in the name of the Forestry Department?
CATHAOIRLEACH: Is not that a pure technicality?
Mr. DOUGLAS: I agree with the Minister that you cannot in any good Government have an appeal to a judge from a responsible Minister—responsible to one of these two Houses.
CATHAOIRLEACH: The Minister says he will consider the matter with a view to meeting as far as he can the  views expressed with regard to his stating reasons, and probably providing an opportunity of reviewing a case if these reasons are challenged.
Sir JOHN KEANE: There is the question of compensation for retaining trees for their æsthetic value. Trees may have to be kept even when they are long past their maturity for the sake of social amenities—perhaps because they are a convenience to picnickers. That is possible.
CATHAOIRLEACH: You could levy a charge on those people.
Mr. BAGWELL: I am willing to withdraw my amendment and bring it up again on the Report Stage, and the subsequent amendment would have the same effect, but it would also provide that the Minister should give his reasons when he refuses to grant the permit, showing that it has not been withheld unreasonably and only for the purpose of good forestry. That would get over the difficulty. I quite appreciate that he should get over that but I am not prepared to withdraw this amendment in favour of an undertaking to give a further opportunity for review by the Minister after he refuses, because this is most frightfully drastic. I do not know if the House realises that it is a tremendous interference with the liberties of the people. I yield to no one in my desire to see the country better timbered, but I do not think this section would help in that direction, for under it nobody has any guarantee that he will be able to realise on the timber on which he has spent capital in planting and has paid rates and taxes for years. An appeal would be a great safeguard. It is quite true that a judge may be an autocrat, but the odds are distinctly against two autocrats being bad. I am quite prepared to withdraw this amendment on the understanding that I will bring up practically the same amendment with an addition so as to get over the difficulty about a judge not having anything definite to deal with on appeal. If the Minister stated his reasons—“in accordance with the practice of good forestry”—that would be some protection.
CATHAOIRLEACH: What the Minister has undertaken does not of course debar you from bringing this matter up again. It would be better you should see what he does agree to in print before you revive your proposal, and let there be no misunderstanding about it so that he will not be pressed further than he has agreed. All he has agreed to is to entertain a suggestion that in the granting or withholding of a prohibition order or permit he would state his reasons, and that the individual concerned who was aggrieved by this will have an opportunity of bringing fresh material before the Minister, which may or may not induce the Minister to change the order he had previously given. That would be a comparative protection. You may, in addition, tack that on to your amendment about appeal. That I will reserve to you for the Report Stage, and in the meantime you will have the opportunity of seeing the Minister's proposal.
Mr. BENNETT: I think permission should not be given to withdraw the amendment that is before the House. It should be decided now on its merits. I do not agree in giving an opportunity for bolstering up a bad amendment, for it is a bad amendment, and I think it should not be allowed to be withdrawn.
CATHAOIRLEACH: The only thing I had in my mind was that the Senator would be greatly influenced in that matter if he saw what the Minister proposes. The Senate may say this is enough; what the Minister offers is quite sufficient. Your amendment goes further, and that is the reason why I think it would be fairer to let the whole matter come up again.
Mr. BENNETT: The amendment as it stands is bad. I think we should decide now whether we are to substitute for the Minister a Judicial Commissioner or anybody else. I think permission ought not to be given to withdraw the amendment, and I move that.
EARL of WICKLOW: Do I understand what the Minister proposes is that if anybody feels aggrieved by an order made the aggrieved person will be allowed to go back to the Minister about it? Can any human being who  is aggrieved be kept out of the Minister's office if he has a good case? Our point is that the Minister may be in the wrong, and we want somebody to whom we can appeal and who will say who is wrong. It is all right for Senator Bennett to say the amendment is bad. The Senator is entitled to think it is a bad one, if he likes, but he is not entitled to say that an amendment thought out by an intelligent man is a bad one. On what grounds does the Senator think it is a bad one? I earnestly hope that before Senator Bagwell brings forward the amendment he foreshadows the Minister will see there are some grounds for our pressing for some safeguards.
CATHAOIRLEACH: If objection is taken to withdrawing the amendment I must put it to the House whether leave be given to withdraw it.
Mr. BAGWELL: I am not admitting the amendment is a bad one, but I realise there are certain weaknesses in it that might be overcome. I will bring it up again on the Report Stage.
CATHAOIRLEACH: I cannot recall any instance in which this House has refused to agree to the privilege of withdrawing an amendment.
Mr. BENNETT: I quite agree.
Amendment by leave withdrawn.
CATHAOIRLEACH: Do you know anything, Senator Bennett, about amendment No. 12, standing in the name of Senator Colonel Moore? It was called when you were not here.
Mr. BENNETT: I would like this to stand over for the Report Stage to be dealt with then by Senator Colonel Moore.
CATHAOIRLEACH: I hope no Senator will object to this amendment standing over?
Question—“That Section 8 stand part of the Bill”—put and agreed to.
(1) The Minister may, if he so thinks fit, grant to any person a  general permit in the prescribed form to cut down or uproot any trees in any specified wood in the ordinary course of thinning or clearing such wood either with a view to re-planting or in accordance with the general practice of good forestry.
(3) A permit granted under this section may be granted for any period not exceeding one year.
Mr. BAGWELL: I move:—
Section 9, sub-section (1). After the word “wood” in line 41 to insert the words “or on any specified land.”
Mr. HOGAN: I accept that.
Amendment agreed to.
Sir JOHN KEANE: I move:—
Section 9, sub-section (3). To delete the sub-section.
Mr. HOGAN: I also accept that.
Amendment agreed to.
Question put—“That Section 9 as amended stand part of the Bill”—put and agreed to.
SECTION 10 (5).
(5). In this section the word “shrub” means gorse, whins, furze, heather, bracken, and other like plants.
Mr. LINEHAN: I move:
Section 10, sub-section (5). After the word “means” in line 9 to insert the word “hazel.”
Amendment agreed to.
Question—“That Section 10, as amended, stand part of the Bill”—put and agreed to.
Mr. LINEHAN: I move to delete the section. I think it is rather a hardship on the owner of a wood to be compelled not alone to pay rents, rates and taxes for a long period, but also to be compelled by this section to put up such a fence as would keep out animals. I think that is coercion.
CATHAOIRLEACH: And if he does not put up the fence he may have to pay £5.
Mr. BENNETT: Senator Colonel Moore has an amendment to the same section, but he proposes that the State shall take steps to do the fencing and pay for it. I think if both amendments remained over to the Report Stage some adjustment might be made.
CATHAOIRLEACH: If the House is in favour of deleting the section then the other amendment will not arise.
EARL of WICKLOW: I hope the House may see its way to insist on the deletion of this section. I think the Minister would be wise to agree to that as the section would be almost unworkable, and would inflict considerable hardship on the owners of large woods. I do not think you could compel the owner of a small plantation to do what you want him to do.
Amendment put, and agreed to.
Sections 12, 13 and 14 put and agreed to.
Mr. LINEHAN: I move:—
Section 14. To add at the end of the section a new sub-section as follows:—
(2) Every regulation made by the Minister under this section shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution is passed by either House of the Oireachtas within the next subsequent twenty-one days on which each House has sat after the regulation is laid before it annulling such regulation, such regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done under such regulation.
Amendment put, and agreed to.
Section 15 put, and agreed to.
Sir JOHN KEANE: I move:—
Before Section 16 to insert a new section as follows:—
16. This Act shall apply only to trees growing on land which is subject to an annuity payable to the Irish Land Commission.
 I do not know if this amendment will find the Minister in so accommodating a spirit. Picture to yourselves the position of an owner who is badly off and finding it a great difficulty to live. Supposing his only assets are his woods, that he has two sons to start in life, and the only money he can lay his hands on is in timber, but he will not be allowed to cut these woods without the intolerable condition of replanting. These woods had been planted by the owner and cared for, and rates and taxes paid for them. They are the owner's property just as much as his stock or shares or any other property he possesses. He is unfortunate to possess only these woods. If there was a lien on the property by the Land Commission, there might be some justification for a measure of security. If there is no charge on the property and it is held in fee-simple, and that these woods are the only asset a man possesses, why should he not be allowed to realise so as to enable him to educate his children and give them a start in life?
Mr. HOGAN: The considerations that the Senator put forward are considerations which deny the whole validity of the Bill. They may be good, bad, or indifferent, but they go to the root of the matter. If we were to accept it that fee-simple farm property ought to be disposed of the same as stocks and shares there would be no reason for this Bill. If an owner is hard up he can cut his woods. Take the case of a farmer who has a farm of land with woods on it and he has sons. His farm is subject to the Land Commission annuity. He is hard up, and he has three or four sons he wants to start in life. Yet he cannot cut the wood. No question of security enters into it. It is not because it interferes with the security of the Land Commission this was introduced. If one man has two sons and wants money, and another man has six sons and he wants to realise too, probably in both cases they would be allowed to realise.
Amendment, by leave, withdrawn.
Section 16 put and agreed to.
Question—“That the Title stand part of the Bill”—put and agreed to.
Ordered: That the Bill be reported with amendments.
 The Seanad went out of Committee
Bill reported with amendments.
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