Emergency Powers (Continuance and Amendment) Bill 1942—Committee (resumed) and Final Stages.

Friday, 24 July 1942

Seanad Éireann Debate
Vol. 26 No. 23

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Question again proposed: “That Section 8 stand part of the Bill.”

Professor Magennis: Information on Professor William Magennis  Zoom on Professor William Magennis  I think I owe an apology to the Chair, to the Taoiseach and to the House. Last evening I objected to the discussion on this Bill being continued. I had abandoned all hope of the Bill being concluded before a very late hour. I thought, until I heard further this morning, that it would be a service to all concerned to postpone further consideration of it until to-day. I now learn that that has interfered with other plans of the Taoiseach, and I apologise. It might have been possible to conclude all stages of the Bill last night were it not for the fact that a great deal of time was spent unnecessarily during the discussion. We had, for instance, the criticisms that were made by Senator Fitzgerald. Listening to him I recalled a remark that the Minister for Education made earlier in his plea for defeating the anglicisation of the people by intensifying devotion to the use of the Irish language as the spoken language. I am afraid that the Minister for [2035] Education is not as much alive as we in this House are to how deeply anglicised some of our members have become. The criticisms that were made here by the Senator in question were dictated by recollection of the constitutional practice in Great Britain under which we grew up. Senator Mrs. Concannon made a very effective, vigorous and brief reply to him on one point. When he said that “the Government was taking these powers,” she very aply retorted that the Government was asking for these powers, and that it was for the House to give them.

Now, because the Senator referred to and many others for that matter outside the House think of constitutional practice and ways in the light of the English unwritten Constitution, they have a wholly wrong conception of many of the things that are done here. In Great Britain legislative sovereignty resides in the Parliament but political sovereignty is in the people. Hence the type of democracy of which Great Britain is the representative is Parliamentary Government. Britain is a Parliamentary democracy. Ours is not. It is a pity that our people do not study the Constitution with more attention. The type of democracy which we have set up is a constitutional democracy; it is not as in Britain Parliamentary Government. There is an Article of the Constitution—unfortunately I cannot quote it by number—in which “The Government” is defined. We speak frequently of Government without adverting to the difference between Government and “The Government”. Under the Constitution, “The Government” is the Executive Council, and Government has a wholly different reference. It would not, therefore, be correct to say, for example, that we who are members of the Houses of the Legislature form part of “The Government” of the country, for there is that express declaration in an Article of the Constitution that “The Government” of the country is the Executive Council.

The particular type of fundamental law that our people choose to enact [2036] is the Constitution. It is an act of the people. You will see that it is impossible for this House or both Houses to give to the Government the powers which it is alleged the Government are taking, that is powers to subordinate the judiciary or usurp the functions of the judiciary. Even if we purported to give them such power, there are two Articles of the Constitution which declare that this will be null and void. Any Act that is passed or purports to be passed in the Houses of the Parliament of the State is null and void in respect of any section which conflicts with what is set down in the Constitution. So that, even though in blind haste or panic we were stampeded in the Houses of the Legislature into passing something which subtracts from the independence of the judges, such legislation would be wholly inoperative. Therefore we are saved by the fact of our Constitution being written from any such result as that. I am as strong as Senator Hayes on the upholding of the independence of the judiciary. We have ceased to have democratic liberty if we have not unfettered courts of law and judges to defend the rights and liberties of the individual, and any encroachment of the Executive on the judiciary would call for the resistance of every good citizen. But, as I am endeavouring to show, that situation cannot arise, as a study of the Constitution will reveal.

But, with regard to the lesser or minor judges, if I might refer to them without using derogatory language, known as district justices, there was an attempt, which I may be pardoned for recalling, to interfere with their discretion in the first years of their existence. In the eyes of many people, district justices are only stipendiary magistrates under another name, and people think they can be dictated to and written to, and called to account even in a House of the Legislature as being only a sort of magistrate. But I recall that the late Hugh Kennedy, as Attorney-General or Law Adviser to the Government of that day, explained that his conception of their office was: that there is one District Court for the whole State, with justices of that District Court located in different places. [2037] Senator Hayes will recall that there was once an attempt made to criticise in the Dáil a district justice, and the attempt was repelled by himself—at the time he was Ceann Comhairle—because it was interference with the liberty of a judge. Now, district justices, although they are judges, do not hold office in the way in which judges of the High Court do. A formula we are all familiar with in regard to judges of the High Court is quamdiu se bene gesserunt; that is, they hold office so long as they conduct themselves properly.

There is a way of dealing with a district justice who does not take his position seriously or who finds himself incapacitated for the discharge of his duty. He can be dealt with by a committee over which the chief justice presides. I suggest that if it can be shown in the time of the present emergency—which, in accordance with our First Amendment of the Constitution is in reality a time of war although we are not actually a belligerent—if it can be shown that in such time of emergency a district justice perversely attempts to thwart the operation of a measure designed by the Government for the protection of the people's interest and shows his contempt for these efforts of our Government by imposing light and ineffective fines for an anti-social act of which a man has been convicted, then it would be possible to arraign him. I suggest that that is the way to deal with conduct of the sort, a way already provided in a time of peace when there was no possibility of passion or hostile feeling being at work in the minds of those who designed the remedy.

Now, on another point also of yesterday's debate, I am anxious to say how much I enter into the feelings of Senator Campbell with regard to the Order 83. When we—rightly as I held and hold still—approved an Order or regulation attempting to save the people from the spiral of rising prices by imposing a restriction on an increase of wages and likewise an increase of dividends distributed to shareholders—for both wage-earners and dividend-receivers were affected by [2038] the Order—when we did that, undoubtedly it became encumbent to see to the regulation of prices. An effort has been made, we are assured by the Taoiseach, to keep down attempts at profiteering in prices. But the effort has not been wholly successful so far as I can learn; and in result, I think I may submit with all respect, it is legitimate to make a plea for further and closer attention to this evil of prices being raised here and there by unconscionable people who sell the necessaries of life to the workers in the city. Now, the prices regulation authority—it may be my ignorance which dictates this comment—seem to regard prices as simply prices of commodities. But there are prices of services, and services are just as apt to become the subject of this unfair action on the part of certain people.

I have been told, for instance, that it is a grievance of some auctioneers that recently, when private motor cars had to go off the roads, there was a rush to estate agents' offices on the part of house owners in Foxrock, Carrickmines and as far out as Killiney because the difficulty of transport kept people from arriving at their place of business or office and their various centres of avocation. Then the transport of the furniture from the houses that the owners had the good fortune to sell promptly became to the carriers and the furniture removers an opportunity for profit. One auctioneer assured me that in several cases where the household contents were brought to his place the levy made on the goods by the carrier used up a large part of the auctioneer's results. It may be that many of those who suffered from it were well able to bear the impost but that does not make it the less inequitable. I would like to draw attention to that as a matter which comes under the heading of prices.

Mr. Counihan: Information on John Joseph Counihan  Zoom on John Joseph Counihan  Section 8 of the Bill is very drastic and I believe it was influenced by wild and unreasonable and exaggerated statements such as was made last night by Senator Johnston. He spoke of some of the County Monaghan farmers who were tilling [2039] their worst land, putting the worst seed into it and leaving it there and not doing anything further. I do not think the Taoiseach would believe that that sort of man should be brought before a court. No men of common sense would advocate that that man should be brought before a court at all.

Mr. Johnston:  On a point of explanation. I did not say that that was general of County Monaghan farmers but that I knew a couple of farmers had done it.

Mr. Counihan: Information on John Joseph Counihan  Zoom on John Joseph Counihan  My contention is, no matter whether it is a Monaghan man or a Kerry man or a Limerick man, that sort of man should not be brought before a court but should be medically examined and committed to a lunatic asylum. The case of a man who would plough his land, go to the expense of putting seed in it and who would leave it there to rot, is, I contend, a case where it could be pleaded and where the judge could say that there were extenuating circumstances—the man was mad—and should not be fined £500 or put in jail for three months.

No matter how the Taoiseach or other Ministers may protest that it is not directed against the farmers, the farmers believe it is directed against the few people who did not comply with the Tillage Order. The farmers bitterly resent the insinuation. There are only, as I have heard stated, .12 per cent. of the 450,000 farmers in this country who have not more than complied with the tillage regulations and it is commonsense, I think, to assume that there would be extenuating circumstances in the case of that .12 per cent. for their non-compliance with the Tillage Order. I know a case where a farmer had no money, no working capital, and was letting his land on the 11 months system. He let the acreage for tillage that came under the Tillage Order within the last two years. But, after two years, when he was unable to procure artificial manure, he could get nobody to take it. He had no means of tilling it himself. Eventually, he managed to let it at something like 15/- an acre. If that man could not get [2040] anybody to take his land to till it and if he had no means of tilling it himself, I say that would be another case where there were extenuating circumstances and where it was an impossibility for the man to comply with the Order.

I would appeal to the Taoiseach to consider the suggestion that I put up last night and to allow a judge in such cases, at least, in connection with non-compliance with the Tillage Order, to state in open court that there were extenuating circumstances and to recommend a mitigation of penalty. I make that appeal to the Taoiseach. Surely it will be possible to insert something in the Bill giving an intimation to the district justice to act in that way because there are cases where a penalty might be inflicted, where the person might not be in a position to get Deputies or Senators to intervene on his behalf with the Department of Justice or to make recommendations for him, where the fine might be insisted on and perhaps he might have to go to jail, because the case had not been properly considered. His case would be considered if the judge made the recommendation that I suggest it should be possible for him to make.

Mr. McGee: Information on James Thomas McGee  Zoom on James Thomas McGee  It was not my intention to intervene in this debate but Senator Counihan has appealed to the Taoiseach to reconsider this particular section. A good deal of criticism is provoked by the idea that when there is a whip to be raised the farmer is the object of the whip. In view of the quantity of food that it is being sought to produce this year we should look beyond the stereotyped law that requires you to till so much of your land. If special efforts were made now, I think more than a sufficiency of wheat could be produced by those farmers whose lands are capable of producing wheat. Some differentiation should be made between the farmer who does not comply with the Tillage Order and the various racketeers that the State, unfortunately, has to deal with. In my opinion, the farmer who has good land and who is not tilling his complement or all that his available resources will [2041] allow, is a fool hardly outclassed by the gentleman that Senator Johnston referred to. If his land is suitable and if he has the resources necessary, in my opinion, the farmer on the average land in Ireland is a fool if he will not till. Tillage is practically an insurance policy for him that he will earn a livelihood for himself and his employees. In my opinion, it is safer than cattle alone. I think it would be wrong for the Government to insist that a certain percentage of land on every farm must be tilled, because we are asking people to till who know nothing about tillage and whose land has absolutely no hope of giving results. I see that happening in my own county, which is one of the best from the tillage point of view. It is a tremendous mistake to ask people to till land which cannot give good results. It is equally a mistake not to encourage the farmers who can till and whose land will give good results.

Now that they have the farmers on the way, I suggest the Government should coax and court the farmers here in the same way as the Governments of other countries around us, even in the North of Ireland, are doing. In yesterday's Irish Press I saw an article under the heading, “Britain's Plough Now Plan”. The British Minister of Agriculture is asking the farmers to plough an extra 500,000 acres of heavy land between this and harvest time, and the Irish Press reporter understands that it is not proposed to adopt a similar course here. I do not suppose it is necessary. Some eight weeks ago I was associated with a motion here, put forward by Senator The McGillycuddy, which suggested that the farmers should be guaranteed 50/- per barrel for the next four years. What prompted me to associate myself with that motion was the hope that soon afterwards we might hear from the Government what was their proposal for next year. The time is rapidly passing, and, if we want to take the utmost out of the land, we should be getting ready to sow wheat for next year. As representing a county that is growing the highest proportion of wheat in Eire, I say the time to sow [2042] wheat is October, and we are now almost at the beginning of August.

Leas-Chathaoirleach:  Is not the Senator turning this into a debate on wheat-growing?

Mr. McGee: Information on James Thomas McGee  Zoom on James Thomas McGee  I am appealing to the Taoiseach to remove from this section the proposal to fine people £100 for not complying with the Order. I appeal to him to differentiate between the people who do not till the land and the racketeers whom the Government are anxious to involve. I suggest that it is a matter for the Government——

Leas-Chathaoirleach:  It is not necessary for the Senator to repeat his statement. I think the Seanad has heard it. We all know what he has said. I should like to point out that this is not a motion on wheat-growing, and perhaps it would be better if the Senator would relate his remarks to the section of the Bill under discussion.

Mr. McGee: Information on James Thomas McGee  Zoom on James Thomas McGee  I have been here all the morning and I have heard what other Senators have said. I have not spoken for the past three days. I have done as much for the country in the matter of food production as any other Senator. I hold, and have held for the past 20 years, a responsible position in my county. I have my views on national and local matters. If other Senators are allowed to speak on this matter, I submit that I am entitled to do so.

Leas-Chathaoirleach:  I am not preventing the Senator. I am sorry to have to interrupt the Senator, but what he has been saying is not relevant to this section. It is not pertinent to have a long disquisition as to whether now is the time to prepare for the growing of wheat. I am asking the Senator to relate his remarks to the section.

Mr. McGee: Information on James Thomas McGee  Zoom on James Thomas McGee  I appeal to the Taoiseach to differentiate between the farmers who fail to till the required amount of land and the racketeers who obviously should be punished. I suggest that the same punishment should not be meted out to both parties. [2043] Sufficient food can, in my opinion, be obtained and the way to obtain it is to start now and make preparations to sow wheat in October. A more pleasing atmosphere would be created in the minds of the farmers if some plan similar to that adopted in England were put into operation here. I am sorry if I have intruded on this occasion. I shall not speak in the House this afternoon.

Liam O Buachalla: Information on Liam O Buachalla  Zoom on Liam O Buachalla  The main reason I have for speaking is to protest against the effort that is being made to import into this discussion the idea that this Bill, or the particular section we are discussing, has been framed against the farming community.

Mr. Counihan: Information on John Joseph Counihan  Zoom on John Joseph Counihan  The farmers believe it.

Liam O Buachalla: Information on Liam O Buachalla  Zoom on Liam O Buachalla  It is claimed that the efforts of the farmers have been so satisfactory, and their work on the whole has been so patriotic, that this particular section is uncalled for, at least so far as they are concerned. Tribute has been generously paid to the work of the farmers in connection with the tillage campaign. Such tribute has been paid by the Taoiseach and by members of both Houses of the Oireachtas. I should like to take this opportunity of joining with those who have paid tribute to the farmers, to all those who have rallied to the call of the nation in such magnificent fashion. I must say it did not occur to me at any time that this section was designed against the farming community nor do I believe any such thing. It occurred to me on reading it that this was an effort to get after the racketeers in the rural and urban areas. It has been claimed that the farmers resent this provision of power to impose severe penalties.

I will give the House some indication as to the attitude of farmers in the county from which I come. I attended a meeting not very long ago. The meeting was called for a very awkward hour, but it was a very large meeting and Senator Hawkins will bear me out in this, that at that meeting [2044] there was no question of protest against the Government's call to the farmers to till more; there was no question of protest with regard to the prices that were being guaranteed for their produce. The outstanding matter of protest there was that certain people were able to evade their responsibilities under the tillage Orders and these farmers called very emphatically for the heaviest penalties to ensure that these people would be compelled to realise what they were doing and, realising that, would hearken to the call of the State to do their share in the provision of essential foods. If they did not realise that duty and if they were caught, it was urged that they should pay dearly for it.

I do not know whether Senator Hawkins will speak on this section, but I know that he has the opinions of farmers in various parts of County Galway on this matter. The farmers expect that legislation will provide for the heaviest penalties for people in their industry who will attempt to evade their duties in this matter. Further than that, I can inform the House that various people have drawn my attention to efforts that were being made to evade this duty in respect of extra tillage. I just mention two cases. Two parish priests communicated with me early this year regarding cases in which they believed efforts were being made to evade the tillage law. They lived very far apart— practically at different ends of the county—and they asked me to bring the matter to the notice of the Minister for Agriculture. They suggested that the matter was so urgent that I ought not to wait until the Seanad met, but should go to Dublin and ask the Minister to send somebody down to them and that they would take that official to see the land in respect of which they believed an effort was being made to evade the tillage Orders. The Minister will bear me out when I say that I came to him post-haste. The matter was so urgent that, as I know, he called officials back from some other areas and sent them down and, as a result of their visits, the matter was adjusted. I mention that to show that farmers and those who know the rural [2045] areas do not resent the inclusion in any section of this Bill of a provision setting out the heaviest penalties possible for anybody who attempts to avoid doing his duty in this matter.

From my connection with and my study of this question, the big difficulty as it appears to me is that the Department has not a sufficiently large number of inspectors to go around and see what is being done and to investigate all complaints. It is a difficulty which it would be very hard to get over. There might be a financial difficulty, which would certainly not stand very long in the way, but there is also the difficulty of getting competent men. There is the difficulty, as I think everybody here will agree, of getting thoroughly competent people to decide whether particular land should be cultivated or not and to what extent the law is being evaded. That is one of the big difficulties.

A good deal of play has been made about the inclusion of this proviso in respect of heavy penalties. Whom does this penalty frighten? Practically every law passed has penalties set out in it—maximum and minimum fines and so on. Who has any reason to be uneasy about this? Certainly not the majority. Laws do not usually frighten the majority. The majority will carry out the law, but there is always a certain very small element in the community against whom the penal parts of a law are directed, and it is against such an element in the farming community that any section in this Bill which sets out heavy penalties is directed. There is nothing unusual, nor is there anything startling in that, and the ordinary farmers, with their common sense will agree that it is only right that a penalty, and a penalty in the heaviest terms possible, should be provided.

I do not know whether the intention of the Seanad to adjourn this week is to be carried out or not, but, if it is, I hope we shall be saved many of the flights of imagination to which we had to listen yesterday evening—for instance, the one about this strange phantom widow—widow mind you—with the 100 [2046] acres, who, strangely enough, had to tend her dying husband, timed very nicely to die during the spring. If it is the intention of the Seanad to adjourn as is suggested, I hope we shall keep strictly to the matters arising on the Bill.

Leas-Chathaoirleach:  Before naming the next speaker, I should like to reinforce what Senator O Buachalla has said. As time is limited, it would be well if Senators would remember that this is the Committee Stage and not the stage on which to make general speeches on the question of wheat growing or the relation of farmers to this Bill. These subjects have been discussed at some length and time is getting short. If the House is to adjourn to-day, as I understand is the intention, it would be well if speakers confine themselves to the section and to matters relevant to it.

Mr. Hawkins: Information on Frederick Joseph H Hawkins  Zoom on Frederick Joseph H Hawkins  If the Seanad, and particularly the Opposition, adopted a different attitude towards this section, that different attitude and the publication in the Press that we were prepared to stand behind the Government in whatever action is necessary to put down black marketing, and to see that everybody carries out the duties imposed on him by whatever regulations are passed, would quite possibly obviate the necessity of imposing these penalties; but once it goes out that we are divided, and that certain people, particularly the Opposition, do not approve of this proposal, there will be dissension among the people, and they will have all the greater grievance with regard to the insertion of this minimum penalty in the Bill than would be the case if it went out from the House that all sides were united and were behind the Government in whatever action it thought necessary to take.

I do not intend to go into the question of whether this is intended for the farmer or not—I spoke on that last night—but Senator Buckley made a passing reference to this poor widow whose husband was dying. I notice that Senator Hayes smiled at my reference to “a poor widow whose husband was dying”, but I quote the words of [2047] Senator Baxter who introduced the matter. That is my reason for using the phrase. If that sad event occurred in County Galway, I can safely guarantee that that woman's land would be ploughed and sown by her neighbours, and I hope the same could be said of Cavan and every other county. If the people of Cavan have lost that Irish charity, there is another method which that widow could have adopted. I am sure that there would be people anxious to take the land in conacre so that there was no necessity to leave the land untilled. We had a long harangue yesterday about the black market and those operating it, but one could get up and make the same case as has been made for the widow to whom Senator Baxter referred for the poor widow with a business, whose husband dies. Such a widow may have had some chests of tea or some bicycle tyres, and in order to keep her business going she might feel quite justified in charging exorbitant prices and entering the black market. The same case could be made for that widow as Senator Baxter tries to make for the farmer's widow who, to my mind, never existed.

It is suggested that price control is not properly operated. We all know that it cannot be operated without the co-operation of the ordinary citizen, and when one reads that during the debates in the other House—I am glad it did not occur here—a responsible member stated that in order to keep 100 men employed in cutting timber for sale in Dublin City, machinery, oil, files for saws—everything necessary to keep his equipment going—were purchased by him in the black market, what can one expect from the ordinary citizen?

I also remember reading another utterance of the Leader of the Labour Party in the other House in which he complained of certain overcharges in Kildare, but he admitted, when he was questioned, that he did not report anything about that to the Department. He left that to those unfortunate people who were overcharged. I say that if every Deputy, every Senator, [2048] the clergy, and other responsible people of the country came out against black marketing as they should, it would be put down. It is not, to my mind, the ordinary businessman who is engaged in this black marketing. It is the type of people who buy up and corner certain articles which they know are becoming scarce. Then they offer these articles to people who require them urgently, and who are prepared to pay any price for them. One way to prevent that traffic, although it would be a very expensive method, would be to adopt a proper rationing system or to enforce a more rigid control of distribution.

The Labour Party are very vocal in regard to control of prices and about the increase of black marketing but they, above all people in the country, have an organisation which could give valuable assistance in counteracting these abuses. I say, and I have said it before, that if I were closely associated with the Labour organisation I would utilise that organisation to help in putting down this black marketing. I think, if they were to do that, they would be doing much more good for the community than by trying to make propaganda out of the existence of the black market. Last night some members of the Labour Party in this House spoke about Order No. 83. I shall not go into that question now but I shall just mention one matter that appears to me terribly inconsistent with their statements on that Order. Some few weeks ago there was a meeting in County Galway at which some representatives of Labour attended. At that meeting one of the principal resolutions passed requested the county council not to increase the wages of their employees.

Mr. Douglas: Information on James Green Douglas  Zoom on James Green Douglas  It seems to me that there is only one issue that arises on this section. That is whether the Government should be given powers under certain circumstances to impose a minimum penalty. No amendment has been put down to the section and, therefore, I think it has been made perfectly clear that there is no one who would deny that power to the Government at this stage. Our object in the [2049] debate is to draw the attention of the Government and of the Taoiseach to the reasons why we felt that minimum penalties should not be imposed, if it is at all possible to avoid them. The last speaker said that the Opposition should make clear how they propose to deal with persons engaged in black marketing. I think that has been made as clear as daylight. To my mind there is no member of the House who is not prepared to give full power to the Government to deal with that evil. If we agree to give these powers to the Government, then I think our only purpose in discussing this section is to draw the attention to the way in which we think these powers should be operated and to give the Government the benefit of our views on this matter. It is not proposed as I say to deny the Government these powers, and that is indicated by the fact that no amendment has been put down to the section.

Senator Buckley asked who was afraid of the minimum penalty. I should like to answer that. As far as a person who knows the law and who wilfully disobeys it is concerned, I am not the tiniest bit worried about the imposition of a minimum penalty, but I do say that owing to the enormous number of Orders which have been issued, it is quite possible that many people do not know exactly what the regulations are and, sometimes with the very best intentions in the world, they infringe these laws. It is in that type of case that I think it would be unwise to provide for a minimum penalty. For my part I hope the House will be prepared, having put its case and having pointed out that the Government should be very careful in its exercise of this power, to pass this section. I do not think that any useful purpose would be served by discussing it further.

Mr. Tunney: Information on James Tunney  Zoom on James Tunney  I desire to say only a few words. I am satisfied that the Government must get these powers but as a worker and as a trade unionist I object to the way in which these regulations are applied to the working-class so that they are very definitely caught in certain cases, while there are [2050] too many loopholes by which other people can escape the provisions of these Orders. I shall give a few illustrations. Take the case of bicycle tyres. The price of these is supposed to be controlled. I personally have been searching Dublin for the last six months and I could not get one tyre within the city unless I was prepared to go to the black market. What is the use of making an Order of that kind if some steps are not taken to ensure that cycle agents will keep records showing how they dispose of tyres supplied to them? I am prepared to wager that not one Senator can buy a single tyre or a single new bicycle at the controlled price. What is the use then of making these Orders? These traders are supplied with tyres but to whom are they selling them? I have been looking for a tyre for a member of my family for a considerable time past. I have failed completely to get a tyre at the controlled price and the result is that my son has to walk four miles to his work. That applies equally to many other people.

As regards tillage, I think that the tillage Order has not been properly enforced. No matter what Senator Counihan may say, I do not think his statement that people do not till bad land, is accurate. We have certain gentlemen in County Dublin who hold hundreds of acres of the best land in the county and none of it is tilled. I personally have gone to the Department and have complained that these people are not tilling and the reply I have got is that they have tilled so many acres in another part of the country. I have no proof that they have but one thing is certain. I can take these inspectors to certain people who own hundreds of acres of the most fertile land in County Dublin and who have not tilled one acre of that land. That is a great injustice to the nation and it should not be allowed.

Leas-Chathaoirleach:  We are dealing with the question of minimum penalties now.

Mr. Tunney: Information on James Tunney  Zoom on James Tunney  The excuse is sometimes made that people cannot get their land tilled. I find that in County [2051] Dublin as much as £9 per acre is being paid for tillage land. In my own native county, Mayo, up to £4 per acre is being paid. I would appeal to the Taoiseach to be very stern with these people who refuse to carry out the tillage regulations. The regulations, in my opinion, are much too loose. I feel also that the person who has ten acres of arable land——

Leas-Chathaoirleach:  This is not a Bill dealing with compulsory tillage. We are dealing now with a section which, as Senator Douglas has pointed out, is concerned only with the question of the imposition of minimum penalties.

Mr. Tunney: Information on James Tunney  Zoom on James Tunney  The Bill deals with the punishment for non-compliance with certain regulations and I want to know how it is possible for certain people to evade these regulations.

Leas-Chathaoirleach:  The Senator must not make a Second Reading speech on the section. He must relate what he has to say to the particular section under discussion. We have had too many Second Reading speeches on this stage.

Mr. Tunney: Information on James Tunney  Zoom on James Tunney  I am pointing out that there are too many loopholes in these regulations, the result being that, while heavy penalties are imposed on certain people, certain other gentlemen escape punishment although guilty of similar offences. I hold that there is no use in the Government making these regulations if they do not take steps to have them fully enforced. I have pointed out that they are not being enforced in the case of bicycles and bicycle tyres and also in the case of certain people who have found it possible to evade the tillage regulations.

Mr. M. Hayes: Information on Michael Hayes  Zoom on Michael Hayes  The opposition to the powers taken by the Government in this section, and to the imposition of a minimum fine without the discretion of the justices, is based on general principles, out of regard for innocent citizens and not guilty citizens. Those who are opposing it [2052] have no sympathy with those who break the law. For my part, and for everybody who is opposed to the section, I say that I should like to see law-breakers apprehended and punished, but I prefer to see them punished in court by the person who knew all the circumstances, rather than have a case heard and the minimum penalty inflicted. I want to get the Taoiseach to confirm my view of the meaning of the section. It provides for a minimum fine which may not be more than £500, but which may be any figure lower than that. I think the allusion to the £100 fine is misconceived. Section (6A) (a) provides a jail sentence as penalty, and that is left to the discretion of the district justices. There is no power to compel the district justice, if he finds a person guilty, to impose a jail sentence. Senator Counihan asked whether power would be provided for a district justice, although he had no option but to impose a minimum penalty, to state that in his judgment there were mitigating circumstances which he could operate to mitigate the penalty. As far as I understand it the justice has that power. Assuming that an Order is made, having heard the evidence, and found a person guilty, the justice is compelled to impose a particular fine, but he may say that in his judgment there are mitigating circumstances, and that only that he was coerced by the Order he would not have imposed such a fine. I think there is power to do that, and that it would not be necessary to have an amendment. If that were made clear the discussion would be shortened.

The Taoiseach: Information on Eamon de Valera  Zoom on Eamon de Valera  One of the difficulties here is that this discussion has been somewhat in the air. The accumulation of cases which decided Ministers in charge of Departments to ask the Government to agree to have a section of this particular kind has not been before the Seanad. Therefore, Senators have no idea of what it was that compelled us very reluctantly to take the action I indicated, and that was to adopt some system of minimum fines. I refer to that because in the [2053] Dáil I had a long list of what, in the circumstances, appeared to be serious offences, and these were dealt with by the justices imposing trivial fines. That is the fact. I could not say in any particular case that the circumstances were such that they would justify mitigation. I have simply taken the list of offences and the punishments imposed. Unless it is suggested that there were extenuating circumstances in a large number of these cases, one is simply forced to the conclusion that the justices, taking them generally, did not realise the seriousness of the position, and did not realise the seriousness of the crime against the community that was committed by those who broke the law in that way. We have devoted attention largely to some particular individuals who were more or less harshly or severely dealt with by the operation of the minimum penalty. We have been fixing our attention upon these people, but our duty is to look after the welfare of the community as a whole. If it is found necessary to adopt this particular method, as the only one that offers hope of success, we cannot pay too much regard to the possibility of hardship in individual cases, but to injury to the community as a whole or we fail to do our duty towards it. The fact that food is required, and that certain articles like tea are in short supply offers strong temptation to make money, when people are willing and able to pay a high price for tea and others are willing to sell. We want to protect the people.

I have here a shorter list of these cases. It is, possibly, true that they are worse than the average of those on a list I had previously. I concede that at the start. I had to get some examples. The list I had in the Dáil contained hundreds of cases, and showed that most of the sentences appear to be altogether too lenient for the offences that were committed. I asked to have a smaller list prepared, which would give Senators the same impression as I got after reading the longer list. It would be impossible to read that now. I will start with cases dealing with the sale of tea in different counties. These were cases of [2054] people who wilfully and perversely wanted to act against the general spirit of the Order. It was apparent that the justices did not realise the seriousness of the offences. There is a maximum price of 3/4 per lb. for tea, and in a certain county, which I will not name, a person was charged with selling it at the rate of 8/- per lb. on two occasions. It is quite clear to anybody, who thinks, that if that practice were to continue, only wealthy people would have tea. Therefore, it was an offence against the community, and an offence particularly against the poorer section. The Probation Act was applied in regard to the first case, and a fine of 10/6 and 4/- costs was imposed in the second case. It may be argued that that was the only offence, but if people are carrying on practices like that, we cannot be certain that they have not been doing it over a long period. I am assuming that there were not extenuating circumstances. If there were a number of cases like that, Senators can realise that justices did not appreciate the seriousness of the position; in other words, they are so isolated from what the Executive has to deal with that they did not see it. Here is another case of a person who was convicted of selling tea at 5/4 per lb. on two occasions, 5/- per lb. once, and 4/- per lb. on another occasion. In each case a fine of 2/6 was imposed, 4/- costs, and 10/- witnesses' expenses. It was known that 3/4 was the fixed price. The people who sold the tea knew perfectly well that it was being sold to those who could afford to pay a higher price, and that they were depriving poorer people of it.

Unless one assumes that there were extenuating circumstances the fines would show a want of appreciation of the nature of the offences. There was another case in another county where 5/- per lb. was charged and the Probation Act was applied on payment of 14/- expenses. In another case in which 5/- was charged the Probation Act was also applied. Cigarettes, the legal price of which was 8½d. for ten, were sold at 1/- and the fine was £1. Flour which should be sold at 3/2 per stone was sold for 14/- for four stones. It may be said that there was only a [2055] few pence in the difference, but a few pence mean that they would be inclined to give more than their share to those who are prepared to pay the highest price.

Mr. Fitzgerald: Information on Desmond FitzGerald  Zoom on Desmond FitzGerald  It seems to be more than a few pence. Did the Taoiseach say 3/6 per stone?

The Taoiseach: Information on Eamon de Valera  Zoom on Eamon de Valera  3/2 or 12/8 for four stones. We must not lose sight of the fact that if people sell at 3/4 or at 3/6 it is a serious offence, and ought not to be dealt with by a justice as being a trifling affair. I asked for a list that would not be too long. These are the types of cases that made an impression on me when I read them.

Mr. Fitzgerald: Information on Desmond FitzGerald  Zoom on Desmond FitzGerald  We accept the Taoiseach's word for that.

The Taoiseach: Information on Eamon de Valera  Zoom on Eamon de Valera  They are some of the cases that impressed me as I read them through. Here is a case for the improper use of wheaten products. We know that we were short of bread and that the feeding of wheat to animals was forbidden. It was very important from the point of view of the community that such products should not be fed to animals. In the list there are cases where animals were being fed mainly on feeding stuffs containing wheat and the fine imposed was £1 and 2/6 costs. That does not indicate a proper appreciation of the facts, assuming that there were not some very extenuating circumstances. In the same county there were two or three cases of manufacturing animal feeding containing wheat products and the Probation Act was applied. For the manufacture of white bread a fine of £1 and costs was imposed. I hold that if there is a number of cases of that kind we must conclude that the justices who were administering the law did not understand the seriousness of the situation.

Mr. M. Hayes: Information on Michael Hayes  Zoom on Michael Hayes  Would it be of any assistance if I said that we accept the view that, generally, fines have been imposed which were too small? It [2056] can be accepted, generally, that fines were too small.

Mr. Douglas: Information on James Green Douglas  Zoom on James Green Douglas  We all agree.

The Taoiseach: Information on Eamon de Valera  Zoom on Eamon de Valera  The reasons I wanted to give examples was that we might view this question with an air of reality. In these circumstances the Bill was brought forward and primarily aimed at those who were charging excessive prices and contravening the Orders of the Minister for Supplies. I would not like it to be inferred, as I think it was, that these powers will not be applied. When the power is given Ministers can, if they feel it necessary to do so use them. They got them with the idea of using them. My own hope was that it would not be necessary to use them. I am afraid that is too much to hope for and that they will have to be used. I would like to disabuse anybody of the idea that it could be inferred from anything I said last night, that this is not likely to be applied to those offending against the regulations. If it is necessary to do so it will be done to deal with those who are in the black market or with those who refuse to do their duty.

Some Senators have given the reply to the argument that this Bill is directed against one particular class of the community, and that it shows want of confidence in the farmers. The answer, which is sufficient, is that this will affect only those who break the law and who do something which, in the opinion of the Legislature and the Government, is a crime against the community. The only question, as Senator Hayes pointed out, is whether this general application of the law may not be extremely harsh in individual cases. In that regard, I have only to say that we have even to run that risk, if necessary, to deal with offences against the community as a whole. I am sorry to see that risk run. The fact is, as I think Senator Hayes conceded, that the fines imposed were much too light to be a deterrent to those who proposed to break the law.

I referred last night to the independence of the judiciary and justices —I should say, rather, the isolation of the judiciary and justices from other [2057] branches of government, in the broad sense. I think it was Senator Fitzgerald said that they were only different aspects of the same thing. The Legislature making laws, the Executive carrying out the laws, the judiciary administering them from the point of view of interpretation and imposing penalties—these are only different parts of the method by which the community is regulated and governed. We adopted the British system. In our books on jurisprudence, the value of the independence of the judiciary is stressed. We have carried that to an extreme degree here because we have interpreted “independence”—which means that they are not to be forced to give opinions in a particular way—as meaning isolation. The British have unified the system much more than we have. The head of the judiciary in Britain—the Lord Chancellor—is a member of the Cabinet. He is also chairman of one of the Houses of Parliament. There are a number of judges in the Privy Council, where they are brought into close contact with the needs of the Executive of the day. The justices there are not in such a position of independence that they can practically snap their fingers at the Executive. What I hold is that there should be closer contact between the different parts I have mentioned, just as the Executive is dependent for its power on the day-to-day good-will of the two Houses. You do not want that in the case of justices, but you do want some contact which will enable them to realise what the governmental problems of the day properly are. It is difficult to conceive of a scheme by which that can be done.

One thing can be done and I think that it is desirable that it should be done. It ought to be regarded as right and proper for the Minister for Justice, in times of crisis, to send round to justices in regard to particular classes of cases—in, for example, a case like this —a circular which would indicate the gravity of the offence. That would not be taking away the independence of the justices. It is a practice which the Minister for Justice ought to be permitted to adopt. I see nothing against it. In their nature, these circulars [2058] would have to be, more or less, of a public character and there ought to be no attempt unduly to influence the justices in a particular way—merely to bring them into contact with the problems with which the Executive have got to deal. In our case, the judiciary is not merely independent, as we all desire it to be, but it is, very largely, isolated. I think that that in itself is a pity. Of course, it will be said that the judges read the newspapers and have contact with public problems because of the world around them but the contact which members of either House have with the Executive is of a different nature and it does not take from their independence as individuals. It gives them an idea of Executive problems.

If justices do not administer the law in the spirit which the Legislature intended, it is quite obvious that the work of the Legislature and the Executive can be nullified to a large extent. It is not a question of interpretation—that a passage is not interpreted in the precise way the draftsman or Parliament intended. There is a remedy for that, if it is not done perversely. But there is no remedy if a justice allows out an offender under the First Offenders Act, as has been done in cases in which people have been guilty, in our opinion, of very serious offences. The only way we can see of dealing with the difficulty suggested, which is the foundation objection to this clause, is to provide that, if there are cases of very special hardship, they can be reviewed on appeal to the Minister for Justice. I do not suggest that that is an ideal way of dealing with the matter. It would be much better if we could depend on the people on the spot to do what is necessary, but we are satisfied at the moment that there is not on the part of the justices an appreciation of the seriousness of these offences, and that this power to prescribe a penalty below which the justice cannot go should be given to the Government. As was pointed out by some speakers, that is not in the Bill, in the sense that no specific penalty is prescribed. The power is given to fix minimum penalties within certain limits. That is the only power [2059] asked for here. I see no other way of dealing with the matter.

I do not think that the setting up of special courts would meet the position. Reference has been made to the sympathy which offenders may receive from their neighbours. That would be more likely to arise if offenders were brought up at special courts. It is much better that the local courts should have the responsibility of finding whether an offence was or was not committed. I think that Senator Hayes was right when he suggested that sentence of imprisonment is part of the discretion of the court. It may be imposed by the court by way of addition. Where a minimum penalty of £100 can be imposed and it is desired to substitute a period of imprisonment, the period must be one of not less than six months.

Question put and agreed to.

Sections 9 and 10 agreed to.

Mr. M. Hayes: Information on Michael Hayes  Zoom on Michael Hayes  I move the amendment standing in my name:—

Before Section 11 to insert a new section as follows:—

11. Section 9 of the Principal Act is hereby amended by the insertion after the word “Order” where that word first occurs in that section of the following words:—“whether a Government Order or a subsidiary document.”

This is to meet the case made for it on the Second Stage. I do not think there is any difference between the Taoiseach and myself on the matter. If it had been adverted to in the first instance, this particular provision would appear in the Emergency Powers Act. The Principal Act of 1939 provides for emergency Orders made by the Government, and further provides that they must be laid before each House of the Oireachtas and may be annulled by resolution of either House. That Act also provides that the Government may delegate to a Minister power to make an Order—a Ministerial Order—which differs from the Government Order in a way which [2060] seems to be wrong both in theory and in practice. We are in the position, as a House of Parliament, that we can by resolution annul an Order made by the Government, which is the whole, but we cannot by resolution annul an Order made by a Minister, who is part of the whole Government. I think it necessary only to point out that that arrangement is a bad one. For example, I think a Minister would not refuse to come before this House and argue the case if a motion were put down here to annul an Order. If it were merely an expression of opinion that an Order should be revoked, the Minister might not come and, whatever the practice may be, in theory he need not come at all.

The Taoiseach: Information on Eamon de Valera  Zoom on Eamon de Valera  I am afraid it is not possible for me to accept the amendment. The number of Orders is very great, and the subsidiaries are of various kinds. All the principal Orders which have general application are Government Orders, and the others of more general application are laid on the Table of the House. The acceptance of this amendment would put a burden on the Departments which they could not very well carry, and it might become impossible for them to carry on.

Mr. M. Hayes: Information on Michael Hayes  Zoom on Michael Hayes  Was not the Clothes Rationing Order a Ministerial Order?

The Taoiseach: Information on Eamon de Valera  Zoom on Eamon de Valera  I think so.

Mr. M. Hayes: Information on Michael Hayes  Zoom on Michael Hayes  Also, we had to deal with an Order in connection with compensation for personal injuries, made by the Minister for Finance. In that case, the Minister for Finance acceded very properly to quite a number of suggestions made here, and he came in to discuss them on two or three occasions, so I have no complaint about that. The Clothes Rationing Order was a very important one. In fact, some of the Orders made by the Ministers may be more important than Government Orders. I do not want to cause any difficulty about this matter on this particular stage, but it is very important.

Mr. Douglas: Information on James Green Douglas  Zoom on James Green Douglas  There is a principle involved here of very considerable importance, [2061] and I cannot follow the reasons why the Taoiseach cannot accept the amendment. As far as this House is concerned, it will not save any time, as there is nothing to prevent members of the House putting down a motion to condemn the Minister, or to censure him for having made the Order. It is an unsatisfactory way of doing it, but it has happened already, as it was the only way we could bring the matter up for discussion. In the case of the Order regarding compensation for personal injuries, the debate was of a very helpful character. The Minister expressed his own appreciation of the criticisms and he made a new Order. He did this House the courtesy of coming back to tell us what he proposed to put in the new Order, in case there were further suggestions. I do not think anybody can go back over that debate and say that it was anything but of a helpful character from the beginning to the end. The Minister said so, and I think everybody in this House felt it was so.

When you have a Bill of this kind in a democracy, it seems that the fundamental power we retain is the right of Parliament to rescind. If you withhold that, the whole basis underlying emergency powers legislation is changed, and it becomes virtually dictatorial. I thought this was an accident until I heard the Taoiseach's view. If he, as Head of the Government, signs an Order, we know that we have control; but if a Minister, through the power given by the Government, makes an Order, we cannot rescind it. I do not think that is democratic. It is wrong in principle. I would respectfully suggest to the Taoiseach that he should go through all the Orders that have been made. I have followed them fairly closely, but I did not think he would take this line, and as I have not got the list here, I do not want to bring this debate on to another day in order to prove the point. I follow the Emergency Powers Orders fairly closely, and would say quite definitely that Orders have been made by the Government of a relatively unimportant character. I was rather puzzled regarding some of them, as [2062] to why they were made by the Government, but I suppose they had to be made by the Government instead of by a Minister. At any rate, some of the most important Orders affecting the life of every single person in the country, as in the case of rationing, were Ministerial Orders. There should be an acceptance of this principle that the House can rescind an Order, or there should be an arrangement by which all important Orders affecting the people generally would be made by the Government. That is essential from the democratic point of view.

I admit that I am talking in theory. The Government has a majority in both Houses, and there is no danger that a Ministerial Order would be defeated. However, I am old-fashioned enough to believe that it is worth while maintaining the democratic theories, even when, for the time being, they may not work. The right that is maintained in the Emergency Powers Act to maintain the control of Parliament seems to me to be something that made it possible to give assent to the Act, even though we know that, as things are, it is not likely to be exercised but changes may take place which no one expects. We know that, as long as that power is there, the people in Parliament have a responsibility which they would not have if they ceased to have that power. Even though at present the majority will vote for the Executive, they vote with a full sense of responsibility and that means maintaining democracy. I put my name to this amendment, as I believe there is a definite principle. I hope that the Taoiseach will consider it further, and if he cannot see his way to accept it I do not think we can do anything about it. I would ask him to look into the matter and see that only minor Orders are made by Ministers. To my certain knowledge, matters of the utmost importance, affecting the daily life of practically everybody in the country, have been made by Ministers.

Professor Magennis: Information on Professor William Magennis  Zoom on Professor William Magennis  Some years ago it was proposed in the Dáil by Deputy Tom Johnson, as Leader of the Labour Party, to deal with the matter to which Senator Douglas has drawn [2063] attention. He proposed to have a committee appointed, composed of members of both Houses, whose duty it would be to investigate Orders the moment they were made, and to report on them where necessary. It is quite obvious that a Ministerial Order cannot be dealt with in the same manner —that Ministerial work must go on. In the case of a Government Order, it is a different thing. I have tried to explain this morning that, in so far as overriding the right of Parliament of review, revision and condemnation, could create what Senator Douglas calls a dictatorial attitude, it does not create that, as it is against the Constitution. I hold, and I am awaiting correction, that we cannot amend the Constitution in any way but that decided in the Constitution itself—that is, by a Bill passed through Parliament and submitted to the people by referendum.

There is only one limit to the operation of emergency Orders: they are limited by the fact that the Constitution preserves us from anything in the nature of dictatorship, even by the body called the Government. I submit that that is worth examining. As anyone who studies them knows, we have an accumulation of Orders which it would be impossible for the ordinary Senator to become acquainted with, and it would be well to have some members on a committee, with the duty imposed on them of keeping a vigilant eye on those Orders and of making a report where necessary. This is a procedure which would be very helpful to the preservation of liberty.

The Taoiseach: Information on Eamon de Valera  Zoom on Eamon de Valera  I do not want to pretend for a moment that I do not see considerable force in the remarks made, that Orders made by the Government as a whole are open to review by both Houses, while such provision does not exist in the case of subsidiary Orders. We must look at this from the practical point of view as well as from the theoretical one. My information is that the change suggested would cause a great deal of difficulty in regard to some of the Departmental work. I cannot accept the amendment, [2064] but I promise to look into the whole situation. I know that there is a general disposition to have Orders made available and laid on the Table of the House. This whole matter requires a lot of detailed examination, before one can decide on the best way to deal with it. On the information at my disposal, I cannot accept the amendment, but I will see if there is any way in which the views expressed can be met.

In connection with the views expressed by Senator Magennis, it is within the power of both Houses to set up committees if they wish, and to give them the duty of looking over Orders, and of reporting to the House if they think it necessary to do so. It is a matter for the House itself. I do not think it is part of the general organisation or that, from the Governmental point of view, we could exactly take the initiative there. I do not see that there is any way in which we could. That is the position.

Mr. Douglas: Information on James Green Douglas  Zoom on James Green Douglas  I think the Taoiseach realises that laying such Orders on the Table of the House only means circulating them to members, and I can quite readily understand that a considerable economy may be effected so far as the mere question of the circulation of such papers is concerned. However, I was not interested merely in the matter of accessibility, and I am sure that every member of the House would have no difficulty in getting a typed copy of any of these. I know that I never had any difficulty, but that was not my point. My point was that there should be some provision limiting the making of subsidiary Orders, so that all major Orders of that kind would be clearly and directly subject to Parliament, in the same way as Government Orders are. My own belief is that all Orders under these emergency powers should be subject to Parliament.

If you look through the Orders dealing with matters of a minor character, which are subject to Parliament and can be rescinded, you will realise that very many of them are trifling compared with the subsidiary Orders that are made under these emergency powers. [2065] I am not going to divide the House on the matter, but may I take it that the Taoiseach will promise to look carefully into the whole matter? I am anxious that the principle should be retained in connection with this Act as I believed to be provided in the previous Act, and I may say that I was not alone in my contention. There were some officials who held the same views as I, but eventually it was held that it was doubtful whether the Orders of a Minister could be rescinded.

Amendment, by leave, withdrawn.

Sections 11 and 12 and Title of the Bill put and agreed to; Bill reported without amendment.

Question—“That the Bill be received for final consideration”—put and agreed to.

Question proposed: “That the Bill do now pass.”

Professor Johnston: Information on Joseph Johnston  Zoom on Joseph Johnston  On this stage, there are a few remarks I should like to make. I think that the Taoiseach, in the course of his speech, has made it clear that there is a real problem involved—the problem of how to secure penalties, both adequate and just, for serious offences against the common welfare, but I am not convinced that he is right in his policy of trying to secure the solution of that problem by a procedure which, to me, at any rate, seems to involve some usurpation of the functions of the judiciary by the Executive, even though the Oireachtas should become particeps criminis in facilitating that usurpation. I think that if the district justices are not doing their full public duty in the administration of the various Orders, then the matter should be dealt with along the lines indicated by Senator Magennis, or on some such lines, but not by the procedure of establishing, at the discretion of the Executive, minimum penalties which the district justices have no power to go below.

Now, I am aware that even under English law there are, in certain matters, minimum penalties imposed, and, in fact, I remember, in my own experience, a significant example of [2066] that kind of thing. Many years ago, before I was fully grown up, I had the misfortune to be carrying a gun without a licence, and I happened, unfortunately, to meet a member of the Royal Irish Constabulary who disapproved of such conduct, as he was rightly bound to do. In due course, I found myself in receipt of a blue paper—a summons to appear before the court to answer for this crime—and my predicament happened to be conveyed to a friend of mine, and a friend of his happened to be a friend of a magistrate who was extremely likely to be sitting on the bench on that occasion. So that, without any active intervention on my part, I found my case being poured into the ears of this sympathetic magistrate. The amusing thing was that when the case was actually heard, this magistrate and his friend did their utmost to have the penalty reduced to some quite trifling sum, and then discovered, what they should have known all along, that under the existing law the bench had no power to impose any penalty less than £2 10s. 0d. In fact, what they did was to impose the minimum penalty and recommend me to the tender mercies of an executive department, the Department of Customs and Excise. The Department of Customs and Excise, in due course, looked into my case, no doubt with sympathy, and reduced the fine to the modest sum of 10/-, and so that was that.

I am giving that as an example of the working of the principle of the minimum penalty, but I think that that principle is only justified in English law or any other kind of law where you have the kind of magistracy that then existed in Ireland and that still exists in England: in other words, a magistracy without any professional training and who owed their position to the British device of giving people a handle to their names and entrusting them with the carrying out of important functions, but that kind of thing is quite inconsistent with any respect for professional obligation or civic duty. Now, we, when taking over control of this country, rightly discarded all that aspect of the British judicial system and established, instead a professional [2067] magistracy to do the work formerly done by the justices of the peace. These people are trained in the law and they look at matters from the professional point of view, and they should be trained to look at them from the public point of view as well as from the mere point of view of the law and also to take into account the personal circumstances of the victims of the law, and I think that if these people are not carrying out their duty in a manner which takes into account all the circumstances, including the public circumstances, then they should be dealt with in some such way as has been already indicated by Senator Magennis, and not by way of diminishing the discretion that they rightly enjoy as a professional magistracy.

In whatever way the thing is achieved, I think it is quite right that severe penalties should be imposed on people who feed to animals food which is capable of being directly consumed with advantage by human beings, but I wonder whether it would be possible to devise some procedure which would impose a penalty for feeding to human beings food which is fit only for animals. I am informed, on the highest authority—an authority on which, doubtless, the Taoiseach is able to draw as well as I—that the last 15 per cent. of what is extracted from the wheat in so-called flour is not capable of benefiting the human digestion in any way whatever, although admirable for animals.

Cathaoirleach: Information on Seán Francis Gibbons  Zoom on Seán Francis Gibbons  I suggest that the Senator is unduly extending the scope of this debate.

Professor Johnston: Information on Joseph Johnston  Zoom on Joseph Johnston  I hope that the Taoiseach will inform himself of these matters and look into them.

Mr. Cummins: Information on William Cummins  Zoom on William Cummins  With reference to many of these Orders, we recognised, early on, the difficulties that would follow from them, and one notorious Order, in my opinion, is one of the greatest blots that exist so far as this Bill is concerned.

Cathaoirleach: Information on Seán Francis Gibbons  Zoom on Seán Francis Gibbons  We cannot go into the question of Orders.

[2068]Mr. Cummins: Information on William Cummins  Zoom on William Cummins  I am referring to Emergency Order No. 83. I think it is one that should be reconsidered, and I earnestly suggest its repeal. It certainly requires re-examination. Are we not on the Report Stage, Sir?

Cathaoirleach: Information on Seán Francis Gibbons  Zoom on Seán Francis Gibbons  No, this is the Fifth Stage, and the Senator is not entitled to discuss Orders in detail.

Mr. Cummins: Information on William Cummins  Zoom on William Cummins  So far as that Order, at any rate, is concerned, it is an undue interference with the rights both of workers and of employers. We have public bodies that want to keep the wages of their employees to a standard that will give them a decent living, but they are not permitted by the Government to do that. Whether that is due to an emergency Order or to this Bill, I do not know. We had the case of Emergency Order No. 83.

Cathaoirleach: Information on Seán Francis Gibbons  Zoom on Seán Francis Gibbons  The House discussed that particular Order at great length on a previous occasion.

Mr. Cummins: Information on William Cummins  Zoom on William Cummins  I would earnestly appeal to the Government to look into the matter and repeal the Order as soon as possible.

Cathaoirleach: Information on Seán Francis Gibbons  Zoom on Seán Francis Gibbons  We have had that matter specially discussed in the House by way of motion.

Mr. Cummins: Information on William Cummins  Zoom on William Cummins  All that I desire to say is that I do not want to allow this opportunity to pass without making a further appeal to the Minister to have the Order repealed.

Mr. Fitzgerald: Information on Desmond FitzGerald  Zoom on Desmond FitzGerald  I must say that it was a shock to me to hear from the Taoiseach that the reason why the Government were seeking special powers in regard to the minimum penalty under this Bill was due to the gross disregard for the welfare of the community of a few district justices. I think he implied practically a majority of them. I have often felt that something ought to be done in regard to certain district justices who always make a point of getting their names in headlines in the papers. Taking district justices on the whole, I have always felt that the majority [2069] do their job conscientiously. We have always stood for security in their tenure of office of those discharging judicial functions. I do think there is a right to remove a man from office. If a man's conduct is of such a kind that the Government could assume that its action in regard to him would win the assent of the majority of the legislature, then it ought to be prepared to take that action.

The Taoiseach: Information on Eamon de Valera  Zoom on Eamon de Valera  You could not do that unless you could prove that there was gross misconduct. You would have to prove misconduct in office, and it would not be easy to do that. In cases such as we are dealing with here, you could not do it at all. In a particular case the justice may say: “My view of the case is so and so.” He is entitled to his view, and that is why we are dealing with the matter in this way.

Mr. Fitzgerald: Information on Desmond FitzGerald  Zoom on Desmond FitzGerald  It was a shock to me to hear that this tendency was so general. There were references in this discussion to farmers not tilling their land properly, and to people charging exorbitant prices for tea. The Government under Section 8 have in mind possible offences committed by a man who is technically a citizen here. The offence itself is committed in the jurisdiction of another State. Could we have some examples of the kind of offence the Government have in mind? I can understand the case of a man buying flour in the Six Counties with a view to bringing it in here. As far as we are concerned, that offence is only known to our law once that man has crossed the frontier.

The Taoiseach: Information on Eamon de Valera  Zoom on Eamon de Valera  There might be offences in connection with shipping. I am not so sure with regard to currency. The general effect is to give extra-territorial effect to our laws. The point is that you have citizens here who can commit offences in this State or outside the State.

Mr. Fitzgerald: Information on Desmond FitzGerald  Zoom on Desmond FitzGerald  Could the Taoiseach give an example?

The Taoiseach: Information on Eamon de Valera  Zoom on Eamon de Valera  There might be an [2070] offence of a treasonable kind, though that is not the one I have in mind. The point is that a person resident here can commit some of these offences within the State or without the territory of the State.

Mr. Fitzgerald: Information on Desmond FitzGerald  Zoom on Desmond FitzGerald  A man outside the State cannot be found guilty of not tilling his land or of selling tea for £1 per lb.

The Taoiseach: Information on Eamon de Valera  Zoom on Eamon de Valera  Take the chartering of boats. A person, say, goes to Belfast and charters a boat without getting permission from the Minister. I do not know which is the offence: chartering the boat or refusing to get the licence.

Mr. Fitzgerald: Information on Desmond FitzGerald  Zoom on Desmond FitzGerald  What is the position of a non-Irish citizen who comes in here? You have an Irish citizen in New York and he may also be an American citizen. Under our nationality laws there are thousands of people with more than one nationality. Take the case of an Irish citizen in America who charters a boat. He is guilty because he is an Irish citizen. Is an American citizen in Ireland going to be guilty in the same way? This business of dual nationality can very easily cause a difficulty here. We say that if a man is not Irish, and is here, it is the locality of the man which is to operate in deciding who is to be the judge of his act.

Mr. Foran: Information on Thomas Foran  Zoom on Thomas Foran  On a point of order, is the Senator in order?

Cathaoirleach: Information on Seán Francis Gibbons  Zoom on Seán Francis Gibbons  This is too large a matter to raise on the Fifth Stage of this Bill.

Mr. Fitzgerald: Information on Desmond FitzGerald  Zoom on Desmond FitzGerald  I thought it should have been taken in Committee. I do not propose to pursue it.

Mr. Foran: Information on Thomas Foran  Zoom on Thomas Foran  The Chair, I think, was a bit rough in its ruling on my colleague, seeing that it was so tolerant of the last speaker. I am intervening simply to say that our people emphatically object to legislation by Order. We have always been hostile to it. Legislation by Order, in its operation, [2071] is much more severe on the working classes than on any other section of the community. There were a few instances mentioned by the Taoiseach regarding over-charging for tea. It is a pity he did not develop that and tell us the social status of the people who were so leniently dealt with. I know of the case of a widow in a small way who was sent to jail in or about the time that these people were being let off under the First Offenders Act or had nominal fines imposed on them.

As minimum penalties are contained in this Bill, I should like to have an assurance from the head of the Government that there will be no discrimination, whatever may be the social standing or the political standing of the offender, because, unfortunately, in the past both of these things operated very much. It is a serious matter and tends to lower the respect of the people for the Government of the country. What was mentioned by Senator Johnston about the person in the old days who was able through his influence to have a fine reduced from 50/- to 10/- operates to-day. That is not good for the country generally. It does not tend to create respect for those in authority when one person gets off with a nominal penalty and others are harshly dealt with. Unfortunately, it is necessary to have an Emergency Powers Act, but the Government ought to realise that those powers should be used with some sort of uniformity. No matter what the social status of an offender is, it should not be allowed to influence the courts. When the courts have done their duty, certain people and certain bodies can have penalties substantially reduced, whereas people who have not a “pull” get the full rigour of the law.

As I said, the working-class people have suffered more under this Emergency Powers Act than any other section of the community. Even at the risk of being ruled out of order, I must again emphasise that Emergency Powers Order 83, unless there is proper control over prices, is a terrible hardship on the working classes generally. The latest one—Order 166—is [2072] the limit altogether. I should like to say to those who accuse the Labour Party of making propaganda out of the poverty and suffering of the majority of the people that they are not stating the facts. It is a falsehood to say that. Has any section of the community contributed more by way of money free of interest to the Government than the working classes have? Early on, some trade union organisations gave a lead to the capitalists or wealthy classes by putting substantial sums of money at the disposal of the Government free of interest. The lead has not been taken up.

Mr. Fitzgerald: Information on Desmond FitzGerald  Zoom on Desmond FitzGerald  The Senator showed himself most punctilious to see that there would be no over-stepping the limits of order here. I wonder if he is not himself as much out of order as I was when he asked that I be shut up.

Cathaoirleach: Information on Seán Francis Gibbons  Zoom on Seán Francis Gibbons  I am sure the Senator himself realises that.

Mr. Fitzgerald: Information on Desmond FitzGerald  Zoom on Desmond FitzGerald  What section of the Bill is it in?

Mr. Foran: Information on Thomas Foran  Zoom on Thomas Foran  I think I am entitled to reply to some of the criticisms of the Labour Party and not allow them to remain unchallenged. I have challenged them and I have no more to say except that I should like to hear a statement from the Taoiseach that there will be no mitigation of or interference with these minimum penalties which we welcome.

Donnchadh O hEaluighthe: Information on Denis Donnchadh D Healy  Zoom on Denis Donnchadh D Healy  Ba mhaith liom cupla focal a radh ar an gceist seo. I did not intend to speak on this question, but, owing to an interjection of mine when Senator Cummins was speaking that he would have plenty of time at the local elections to deal with Emergency Order No. 83, I noticed that when Senator Foran was speaking he looked over to see what effect it had on me. I represent a working class district in the City of Dublin.

Mr. Cummins: Information on William Cummins  Zoom on William Cummins  That is propaganda. Is it in order?

[2073]Mr. Healy: Information on Denis Donnchadh D Healy  Zoom on Denis Donnchadh D Healy  Perfectly in order. The Senator's speech was propaganda, too.

Mr. Fitzgerald: Information on Desmond FitzGerald  Zoom on Desmond FitzGerald  It is for the Chair to say what is in order.

Mr. Healy: Information on Denis Donnchadh D Healy  Zoom on Denis Donnchadh D Healy  If Senator Cummins has any remarks to make on that matter I will welcome him in my area during the coming election. Order No. 83 is meant, as I understand it...

Cathaoirleach: Information on Seán Francis Gibbons  Zoom on Seán Francis Gibbons  I cannot allow any further reference to Order No. 83 on the Fifth Stage.

Mr. Healy: Information on Denis Donnchadh D Healy  Zoom on Denis Donnchadh D Healy  If I am not allowed to answer it here I will answer it on the public platform.

Mr. Tunney: Information on James Tunney  Zoom on James Tunney  I want to reply to Senator Johnston's remark that there was not full justification for these penalties. I hold that, if the Government are to retain the confidence of the right-minded people in this country, they will have to take some steps in view of the difference in the penalties inflicted for these offences during the last six months. When you see a person who, either through ignorance or poverty, charges a penny extra for a packet of cigarettes fined £50, when you see two girls who take the loan of bicycles without any intention of stealing them getting two months in jail, when you see some young fellow who happens to be a member of an illegal organisation getting a sentence of seven years, and then see some man in County Meath, who has 200 acres of land, not doing his duty in providing food for the people, while people in Dublin were standing in queues for bread, it is time that the Government took action. I hope that there will be no discrimination in connection with these penalties and that everybody will be treated alike.

The Taoiseach: Information on Eamon de Valera  Zoom on Eamon de Valera  I do not think it is necessary for me to say anything in addition to what I have said already. But, with regard to the question asked about discrimination, of course, the Orders will be universal. The cases will be tried in the courts and, if it is found that an offence has been committed, the minimum fine will be imposed. [2074] Then comes the question, which is a difficult one: are you to have no appeal or will there be the usual appeal in very difficult cases, an appeal to the Minister for Justice? I am sure the Minister would like, from his point of view, that there should be no appeal at all. If we did that, there would be the difficulty that occasionally there might be—and it would be only occasionally—a case in which there was some particular set of circumstances in which it was certain that if the Legislature itself was sitting in judgment it would say that a fine should not be imposed. It will only be done in special cases like that. The point is that the Minister for Justice in that case will be acting more or less in a judicial capacity. I think we have confidence—I am certain anyhow and I think members of the House are certain—that in any case that he may deal with he will not allow himself to be influenced by any consideration except considerations of justice.

Question put and agreed to.

Ordered that the Bill be returned to the Dáil.


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