New Senator Takes His Seat.
Sittings of Seanad.
Rent Restrictions Bill, 1944: Message from the Dáil.
Aran Islands Transport Bill, 1946—Second and Subsequent Stages.
Children's Allowances (Amendment) Bill, 1946—Committee.
Harbours Bill, 1945—Committee Stage.
 Do chuaigh an Cathaoirleach i gceannas ar 3 p.m.
An Cathaoirleach: Tá orm a chraoladh go ndearna an Taoiseach Pádraig Ó Siochfhradha d'ainmniú le bheith ina chomhalta de Sheanad Éireann chun an folúntas a lionadh a thárla de dhruim báis Phádhraic Ui Mháille. Féadfaidh an Seanadóir Ó Siochfhradha a shuiochán a ghlacadh anois.
Ghaibh an Seanadoir Ó Siochfhradha a shuiochán tar éis don tSeanadoir Tadhg Ó Donnabháin (Leas-Chathaoirleach) é cur in aithne.
An Cathaoirleach: I desire to acquaint the House that in the course of an informal discussion at the meeting of the Committee on Procedure and Privileges it was the view that the hours of sitting should be extended to 10.0 p.m. when business warranted a sitting to that hour. Should a question arise for discussion on the Adjournment the matter would be taken at 9.30 p.m. I presume that the suggested arrangement meets with general agreement. It will be formally ratified in a minute of the Committee on Procedure and Privileges at its next meeting.
Mr. Sweetman: Does that arrangement start from to-night?
An Cathaoirleach: Yes.
An Cathaoirleach: Do fuaras an Teachtaireacht so leanas ón Dáil:—
Tá Dáil Éireann tar éis aontú leis na leasaithe do rinne Seanad  Éireann ar an mBille Srianta Ciosa, 1944.
The following Message has been received from the Dáil:—
Dáil Éireann has agreed to the amendments made by Seanad Éireann to the Rent Restrictions Bill, 1944.
Minister for Industry and Commerce (Mr. Lemass): The purpose of this Bill is to make provision for the maintenance of a shipping service between Galway and the Aran Islands, and for the payment of subsidies to the company operating that service. As I think most Senators will be aware, the steamship service is the only regular service available for the transport of passengers and goods between the mainland and the islands. The maintenance of this service is, therefore, essential to the life of the community living on the islands. The service has been in operation for a number of years but owing to the limited amount of traffic available it has never been self-supporting. To ensure its continuance it has been necessary to subsidise it from public funds, and the Galway Bay Steamship Company has been in receipt of subsidies for that purpose since the year 1891. Before 1930 the total subsidies amounted to £1,000 per annum. Between 1931 and 1945 the annual average subsidy was approximately £500.
The Aran Islands Transport Act, 1936, which it is now proposed to repeal, made provision for the payment of annual subsidies in respect of the operation of this service, and it provided also for the payment of occasional subsidies to meet the cost of overhauls of the vessel used in the service.
The amount of the annual subsidy was limited to £300 and it was provided in that legislation that the subsidy would not be paid for any year subsequent to 1945. In accordance with the provisions of that Act, an agreement was made with the Galway Bay Steamship Company for the operation  of a regular service. That agreement provided for fixed annual subsidy of £300 and, in addition, an occasional subsidy to be paid when the vessel engaged in the service, the Dun Aengus, had to undergo a periodic overhaul. The occasional subsidy was limited to the amount by which the cost of the overhaul exceeded £1,200 and was not recoverable from insurance or other sources. That agreement in accordance with the provisions of the Act terminated on the 31st December last.
Owing to the shortage of coal and the poor quality of the coal available the service has been greatly curtailed during the emergency. The main items of expenditure are fuel costs and wages paid to the crew. Despite the reduction in the service occasioned by the curtailment in the supply of coal, the expenditure both in respect to fuel and wages has actually increased. Furthermore, the company formerly earned a substantial revenue by the provision of a tender service for ocean liners which is no longer available to it. To offset the increased cost and to make up for the loss of the company's other sources of revenue, increased charges were made, but despite these increased charges the company has been operating for some years at a heavy loss. So critical was the company's position in 1945 that it was found necessary to make an extra subsidy payment of £700 under the authority of an Emergency Powers Order.
The vessel is now due for overhaul, and the company have no funds available for this purpose. There is at present no statutory provision for the payment of subsidies to meet the costs of overhaul, or to cover the annual loss incurred in working the service. This Bill now before the Seanad proposes to re-enact the general provisions of the 1936 Act, which empowered the Minister for Industry and Commerce to contract for the carrying on of a shipping service for the carriage of passengers and goods between the City of Galway and the Aran Islands. Such contracts may include provisions relating to the maintenance, repair, insurance and disposal of the vessel; frequency  and times of service; the regulation of charges and other relevant matters. Provision is also made in the Bill for the continued payment of an annual subsidy in respect of the operation of the Aran service, and for an occasional subsidy to meet the periodic overhaul of the vessel. The amount of the annual subsidy necessary to ensure the continued operation of the service is not specifically determined. The amount may vary, depending on operating costs, the availability of supplies, and the possibility of the resumption of certain other profitable services by the company, such as tending liners. With an improvement in conditions generally, there should be a reasonable prospect that the amount of the annual subsidy will tend to diminish progressively. The amount of the subsidy is subject to the sanction of the Minister for Finance, and will be included in the Estimates submitted annually to the Dáil. It is anticipated that the amount of the subsidy for 1946 will be £500.
The vessel in question, the S.S. Dun Aengus was acquired by the Galway Bay Steamship Company by means of a loan of £7,500 granted to them by the Congested Districts Board in 1912. An outstanding balance of £3,694 of the loan was remitted by means of a Supplementary Estimate in 1935. In consideration of that remission, the Minister for Industry and Commerce acquired by the terms of the agreement, which was made in 1938 and to which I have referred, the right to enforce the transfer to him of the vessel on the termination of the agreement. The agreement, as I have mentioned, terminated on the 31st December last, but it is proposed to defer the enforcement of the provision for the transfer of the vessel for the time being. Section 4 of this Bill, and the new agreement which it is proposed to enter into with the Galway Bay Steamship Company for the operation of the service, will postpone the date of the transfer of the vessel while it continues to be used on the Aran service in accordance with the terms of the agreement.
The vessel was last overhauled in 1941. An overhaul is now due, and provision will be included in the Estimates  for 1946 for the amount necessary to cover the cost of overhaul. It now appears from information received, as a result of a dry-dock examination of the vessel, that more extensive repairs than could have been ascertained when the vessel was originally examined, will be necessary, so that the total cost of the overhaul will be about £6,000. An estimate for that amount, less whatever sum may be recoverable by way of insurance, will be introduced in the Dáil this year. These are the main provisions of the Bill. I think the House will agree that it is desirable that this service should be continued, and as it cannot be continued without assistance from public funds, the proposals concerning subsidies are, therefore, necessary.
Liam O Buachalla: Tá mé cinnte go rithfear an Bille seo gan morán diospóireachta. Tá fáilte againn go léir roimhe. Ní maith liom an ócáid a leigean thart gan a chur iniúl don Aire chomh mór atá gach dream a mbainfidh an Bille seo leo fá chomaoin aige as ucht na cabhrach atá sé a thabhairt faoin mBille agus mar gheall ar an gcabhair a thug sé sna blianta atá caite leis an tseirbhís a choinneáil ar bun. Tá muintir na n-oileán an-tsásta agus tá lucht gnótha na Gaillimhe mar aon leis an dream mór a théigheas ar chuairt go dtí na hoileáin gach bliain an-tsásta.
Ní féidir aon locht fháil ar choinníollacha airgeadais an Bhille. Tá siad fial agus tá siad riachtanach. Tá súil againn nach mbeidh gá i gcomhnaí leis an gcabhair atá á deonú don Chomhlacht. Ní mheasaim féin gur ar an gComhlacht féin atá an milleán nár éirigh leo a mbealach íoc. Ní mheasaim go bhféadfaidís mórán níos mó a dhéanamh ná rinne siad. Tá an-tsúil agam nach fada go mbeidh ré na síochána ann i gceart ionnas go mbeidh an deis acu ar ioncom breise a bhaint amach, oiread agus a fhágfas neamhspleách iad do chabhair ó airgead phoiblí.
Ag an am gcéanna, ba mhaith liom a rá go bfeictear dom nach leór an Bille seo leis an gceist ar fad a réiteach. Ar an gcéad dul síos ní maith liom an  tiodal atá ar an mBille, ba mhaith liom an focal “Loingseoireacht” agus an focal “Cathair” a bheith as—nach mbeadh i gceist ach deis iompair go dtí na hoileáin—agus gan tada a rá faoi “bháid” go speisialta.
Tá pobal an-líonmhar sna hoileáin. Déantar cuid mhaith tráchtála coitianta idir na hoileáin agus an mórthír. Ach ina dhiaidh sin, ní mheasaim go mbeidh ar chumas an comhlachta níos mó ná dhá sheirbhís sa tseachtain a chur ar fáil—nuair a bheas ócáid na héigeandála thart. Roimh an gcogadh rití, uaireanta, trí sheirbhís sa tseachtain—le linn aontaí go mór-mhór rithidís seirbhís bhreise.
Ach ní fheileann go gcaithfear bheith a brath ar dhá sheirbhís sa tseachtain. Sé an rud ba mhaith liom, go rithfí bád éadrom idir na hoileáin agus, abair Ros a's Mhíl, andeas nach bhfuil ach thimpeall naoi míle slí ar a mhéid. D'fheilfeadh seirbhís mar í seo do phaisinéirí, agus do thrácht éadrom mar éisc de shaghsanna áirid, uibheacha, éanlaithe agus a leithéid. Báid ar nós an báid thárrthála an saghas atá i gceist agam.
Meabhraionn an bád tárrthála deacracht eile dom. Mar dúirt mé, tá líon mór daoine ina gcomhnaí ar na hoileáin. Uaireanta, tagann tinneas dona go tobann ar dhaoine agus ar gá iad a chur go dtí ospaidéil. Mar tá an scéal ní mór dóibh fanacht leis an Dún Aonghusa—rud a bhíos contuirteách. D'fheilfeadh bád éadroma go mór le cásanna den tsaghas seo a dheifriú isteach go dtí óthar-charr ar an móirthír—ag Carb, abair, nó isteach go Gaillimh féin. Níor thuigeas, agus ní thuigim fós, cén fáth nach bhféadfaí réiteach a dhéanamh le lucht ceannais an bháid thárrthála, daoine a bheadh an-tinn a thabhairt go dtí an mórthír.
Ní bhéinn féin a súil leis an bhfeabhsú seo fá láthair—go mórmhór mar gheall ar na deacrachta atá ann maidir le gual, artola, inill, agus a leitheidí. Tá súil agam áfach nach seo an focal deiridh ar an gceist.
Molaim an Bille agus arís glacaim buíochas leis an Aire ar a bhfuil beartaithe aige faoi.
I did not intend to say very much on this Bill except, briefly, to express,  on behalf of the various interests concerned in it, their thanks to the Minister and to the Department for the interest and the kind consideration they have consistently shown for so long in regard to this particular service. The company itself, so far as I know, have never received anything in return for their capital. So far as I know, they got no payment of dividends over a great number of years. Now, whether they could have done anything more in the way of providing a paying service is something that I doubt very much, and in view of that, the help given by the Minister is appreciated Very much; it is certainly appreciated very much by the Aran people themselves, by the business people of Galway, and by that very large body of people who come year after year to visit the islands.
I just want to stress at the same time that while, in the circumstances, the provisions contained in the Bill are eminently satisfactory, I believe that this matter requires further attention. There is a very large population on these islands. There is a considerable amount of ordinary commercial traffic being carried on, but there is also a certain type of traffic which calls for a service of more than once a week or twice a week. At the present time, I think, the most the company can provide is a twice-weekly service, and I understand that on special occasions, such as fairs and markets, they are sometimes able to provide a service three times a week.
I suggest, however, that it should be possible to provide a more frequent service for light traffic. There is a distance of about nine miles, at the closest point, between the islands and the mainland, where a light boat might run in with light traffic such as, for instance, fish or, on certain occasions, eggs, poultry, and so on, as well as passengers. There are cases, however, with which some of us are familiar— very sad cases—of people being taken suddenly ill and having no means of getting out of the islands to hospital.
It often occurred to me, especially during the emergency, that it was a pity that some effort could not be made to vary the regulations governing the life-boat service to enable such  people to be taken to the mainland, or even up to Galway city, so that they could be brought to hospital in time. However, what I want to stress is that I hope that what is contained in this Bill is not by any means the last word in connection with the Aran-Galway service. So much faith have I in Córas Iompair Éireann that I should like to see this matter transferred to them. As a matter of fact, I think that when this Bill was going through the Dáil, the hope was expressed that that particular service would come under their control. In the meantime, however, in view of all the difficulties that exist in regard to the provision of transport of any kind, and in view of what I myself believe to be the very generous provisions that are provided in the Bill, I am very happy to welcome the Bill as it stands, while expressing at the same time the hope that developments on the lines I have indicated will take place in due course.
Lughaidh O Deaghaidh: Mar Stiurthóir de Chomhlacht Loingis Chuan na Gaillimhe cuirim fáilte roimh an mBille seo. Níl an Comhlacht sin ainmnithe sa mBille seo ach sé an Comhlacht atá ag rith an bháid idir Gaillimh agus Oileáin Arann agus tá an tseirbhís sin faoin a chúram.
Mar dúirt an tAire tuairim sé bliana déag ó shoin bhí an Comhlacht sin ag fáil míle punt gach bliain ach ón mbliain naoi gcéad déag agus triocha sé ní raibh sé ag fáil ach trí chéad punt sa mbliain agus caithfidh sé dha chéad déag punt a chaitheamh ar an mbád an Dún Aonghas, gach ceathrú bliain. De bhrí sin, níorbh fhiú an deontas sin dada don chomhlacht.
Ach anois táimíd ag déanamh an bháid níos fearr agus tá súil agam go bhféadfaimid an obair a dhéanamh níos fearr feasta agus loingseoireacht mhaith a thabhairt do mhuintir Árann.
Níl ainm an Comhlachta sa Bille seo agus is ceart é sin ar an ábhar go bhfuil cead ag an Aire connradh a dhéanamh le haon chomhlacht eile muna mbeadh ar Comhlacht ag tabhairt seirbhís mhaith do mhuintir Árann ná do mhuintir na Gaillimhe.
 As one of the directors of the Galway Bay Steamboat Company, Limited, which is the company that runs this service to Aran, I welcome this Bill. The name of the company is not mentioned in the Bill, and I think that this is quite right, because the Minister, evidently, reserves the right to make a contract with any other company if he considers that he can get a better service for the Aran people than we can give them. I think that that is very proper, because it is the people of Aran that must be considered, and not the company. Now, it must be remembered that we have been running this service at a certain amount of disadvantage. As the Minister mentioned, the company was getting, up to the year 1930 or 1931, £1,000 a year from the Government of the day. Since then, the amount has been reduced, and under the 1936 Act we were getting £300 a year. Now, although we got £300 a year, we could not use that for the actual purpose of the service because every four years there had to be a complete overhaul of the Dún Aengus, and that cost £1,200. The Government paid the balance, but when we got the £300, we had to hold on to that until we were able to make up the rest. The Minister came to our aid last year and gave us a grant of £700, which was very useful, and we are now running the service better than we were running it before, and we are in a happier position than we have been for a long time. As, I think, Senator O Buachalla said, this company has only paid a dividend once in the last 40 years, and so the unfortunate shareholders have got nothing out of its activities, whatever other benefits may have been derived. Senator O Buachalla says that one service a week is not enough. That is true, but we could not run a more frequent service. We found it very hard to get coal, and, as a result, found it very difficult to provide even one service during the last five or six years.
If we get coal plentifully, we will give as good a service as we possibly can. We are interested in giving the best possible service to the people of Aran, and we will do our best in that regard. The Bill empowers the Minister to take away the service from us and to give it  to Córas Iompair Éireann, if we cannot run it properly. If we are not running it properly, we will be only too glad to have it taken away from us for the sake of the people.
An Cathaoirleach: Does the Minister wish to say anything?
Mr. Lemass: I have nothing to say arising out of the observations of the Senators who have spoken, except to make it clear that, so far as the Government is concerned, this is the last word in the matter of the provision of the steamer service to the Aran Islands. If there is a need for such a ferry service, as Senator O Buachalla has suggested, I assume it could be provided on a commercial basis by Galway residents. There are, of course, occasional services by small boats at present, but I think the subsidisation of this service by steamer on a weekly basis at present, and on a bi-weekly basis, as the fuel situation improves, is the limit of the extent to which it is reasonable to ask the general body of taxpayers of the country to come to the relief of this problem. While the Government would be glad to see, and ordinarily would be prepared to facilitate, extension of the service, or have some new facility of that kind for the residents on the island, it does not propose to ask the taxpayers to contribute any greater subsidy than this Bill contemplates.
Question put and agreed to.
An Cathaoirleach: Next Stage?
Mr. Hayes: No objection to taking it to-day.
Agreed to take Committee Stage now.
The Seanad went into Committee on the Bill.
Section 1 agreed to.
Question proposed: “That Section 2 stand part of the Bill.”
Mr. Hayes: I did not intervene on the Second Stage. I thought there was complete unity on this Bill, and I agree with the Senators who spoke about the necessity of maintaining communication between Galway and Aran Islands, but I would like to suggest  that the principle suggested by the Minister is not sound in all our circumstances. After all, there are people living on islands off the coast, and most of these islands, with the exception of the Aran Islands, are gradually being depopulated. I gathered from Senator O Buachalla that the population of the Aran Islands is not going down. Is that correct?
Liam O Buachalla: No.
Mr. Hayes: I am afraid the situation is not so good on the other islands. The Blasket, for example, is almost gone as an inhabited place, and it does happen that on account of our situation, and on account of our history, these people have particular value to us with regard to the Irish language, and other matters connected with the Irish language. That being so, we cannot regard the connection between the mainland and Aran as entirely a commercial proposition. Senator O Buachalla spoke of the assistance given by the Minister. That assistance has always been necessary.
Mr. O'Dea: That is right.
Mr. Hayes: That assistance was given by both Governments. I think we cannot afford on the one hand to spend a considerable amount of money teaching Irish in schools and encouraging the use of Irish, and yet place transport between the mainland and the Aran Islands entirely on a commercial basis. That is the position, I think, which cannot be taken up. In fact, in this particular Bill, in spite of the Minister's enunciation of the principle, that attitude is not taken up.
It may be necessary to subsidise transport to a particular place. The alternative is to take people off the islands altogether because, if there is no communication between the islands and the mainland, the people will not live there and there are many directions, perhaps, in which transport could get nearer to a commercial basis than this. But that is a matter which the Minister will have to consider in regard to questions of Irish, tourists, and so on.
 I agree that the subsidy must be given, and I join with the Minister in hoping that it may be the last word, but it is not that, and I would like to prophesy that the Minister or his successor in office will have to continue the subsidy. We cannot look upon an island like the island of Aran entirely as a commercial proposition, and where transport is something that must be regarded as being on a purely commercial basis.
Mr. Lemass: I think that Senator Hayes has misunderstood the purport of my remarks. I agree that the maintenance of a steamer service is necessary. We are proposing to take power to continue the subsidy, the full subsidy for that purpose. I do not suggest that this steamer service should be carried on entirely on a commercial basis. I was referring to the public suggestion that there should be other services operated by other boats. If there are to be other services, they would have to be furnished without Government subsidy, but the intention of this Bill is to maintain an ordinary steamer service.
Mr. Hayes: That puts the matter on a different basis. We are in agreement with the Minister. To enter into a further discussion of details requires a local knowledge which I have not got at the present moment.
Question put and agreed to.
Sections 3 to 7, inclusive, put and agreed to.
Title agreed to.
Bill reported without amendment.
An Cathaoirleach: Next stage?
Liam O Buachalla: Now.
Agreed to take Fourth and Fifth Stages now.
Question—“That the Bill be received for final consideration”—put and agreed to.
Question—“That the Bill do now pass”—put and agreed to.
Ordered: That the Bill be returned to the Dáil.
 Sections 1 and 2 put and agreed to.
Mr. Sweetman: I move amendment No. 1:—
After the word “persons” in line 31, page 2, to add the following words:—
“but the Minister shall not provide in each calendar year (other than the calendar year 1946) less than six days to be the qualifying dates for persons claiming a children's allowance for the first time”.
This amendment is perfectly clear in its wording, without any explanation from me. The Minister, in the White Paper issued with the Bill, states why provision was made in the Bill for qualifying dates for different categories. Persons claiming for the first time would form one of the categories, and it was the intention to have six qualifying dates in each year. I have provided in my amendment that that shall be a statutory provision. It is perfectly clear that that is the Minister's intention at the present time, and I do not see why it should not be incorporated in the Act itself. It could not be incorporated for this year, because we are already in a calendar year.
Minister for Industry and Commerce (Mr. Lemass): I do not think that this amendment is necessary, and I do not know why Senator Sweetman thinks it is necessary. I informed the Seanad on the last occasion that one of the changes effected by this Bill was intended to permit of the possibility of six qualifying dates in the year. It is not necessary to make that a statutory obligation to ensure that it will be done. One of the aims of this amending Bill was to get away from certain rigid forms in the main measure, and I think that it is undesirable that this provision should be inserted in specific, statutory form. I have informed the Seanad, as I did in the White Paper, that, by reason of the changes in the administrative scheme which this Bill is intended to effect, a position will be  created in which persons can be admitted to the scheme on six different dates, instead of on two dates, as at present. I do not think that the Senator really believes this amendment will be necessary, and I object to its going into the Bill at this stage, because it implies that the Government had some other intention in introducing the Bill, and that it is necessary for the Seanad to insist upon the insertion of this statutory obligation to ensure that effect will be given to its intention.
Mr. Sweetman: I am speechless——
Mr. Lemass: I doubt that.
Mr. Sweetman: ——by the remarks of the Minister. I do not think that the Minister for Industry and Commerce is quite as guileless as he seems. The objection he has made could be made to an amendment introduced into any Bill. The plain fact is that the Tánaiste may not always be the Minister for Industry and Commerce. There might be another Minister who would consider it desirable to have only one qualifying date in the year. That would be a gross injustice to those entitled to claim the children's allowance for the first time. We have absolutely no assurance that the purpose of this section will be achieved unless provision is inserted in the Bill. The Minister made quite clear, on Second Reading, that one of the reasons why this Bill was being introduced was to ensure that people could come into this scheme at an earlier date than at present. That can be achieved only if there are more qualifying dates than two. If it can be achieved only in that way, then we should ensure that the basis upon which we are asked to pass legislation is enshrined in that legislation and that we are not asked to pass something which may be altered on any change of Government immediately after it has been passed. I say that without in any way imputing any desire on the part of the present Minister to mislead us.
Mr. Lemass: As I previously explained, the Children's Allowances Act of 1944 provided for an administrative  scheme which involved the admission of new claimants twice a year. It was because of experience gained in the administration of the scheme that the possibility of improving it in the interests of new claimants emerged. It became clear that we could so adjust the administrative scheme as to permit of new claimants coming in not merely twice a year but on six separate dates during the year. I do not know whether experience will require a modification of that decision or whether it will permit of an improvement even on the scheme now contemplated. But the fact that did appear to be obvious was that we were unwise, in 1944, in tying ourselves up to a scheme of administration which had not been then fully tried out and in creating a position in which a change in that scheme, which did not really affect the principle of the measure, as the Oireachtas intended to pass it, could not be made without further legislation.
The position in this regard is that it seems practicable now to adopt the new scheme which I outlined on Second Reading, which will permit of new claimants coming in with a lesser period of delay. It may be that difficulties will emerge which will require modification of that position. It may be that circumstances will permit of even a larger number of qualifying dates. I think that it is much better to have the Bill framed on this basis, that the Legislature sets down the general principles which it wants to see applied, and leaves in matters of detail of this kind a measure of discretion which will permit of the operation of the measure without undue rigidity and without tying it up completely in red tape.
Senator Sweetman referred to the possibility of another Minister deciding to operate this power in an arbitrary way, to the detriment of people claiming children's allowances. I think that that possibility is so remote that it need not be considered. If that situation should arise, neither the Dáil nor the Seanad would be powerless to draw attention to it. If the position was that there was a majority in the  Oireachtas supporting the change, it would be a comparatively simple matter for the Minister concerned to effect the necessary legislation. The contingency, however, is so unlikely that it is completely unnecessary to erect safeguards against it.
Mr. Sweetman: The Minister, on Second Reading, stated, at column 669, that this provision for six qualifying dates was in the Bill. It is perfectly clear now that it is not in the Bill and that it is to be prescribed by Order.
Mr. Hayes: The Minister made a rather good case in his second effort for having liberty to prescribe either less or more than six qualifying dates. I should be inclined to agree with him but I agree with Senator Sweetman in objecting to the Minister's first line of argument, that this attempt to bind the Minister in an Act of Parliament was in some way a reflection on him.
Mr. Lemass: That was not the point I made.
Mr. Sweetman: When you read it, you will see.
Mr. Hayes: Perhaps we do not understand words in the same way. That seemed to me to be the point the Minister was making. I heard the point made before. I heard it made by Ministers before the present Minister came along. It is an old point and I think it is an unsound point. Experience in the working of the Act has shown that more than two qualifying dates are required. I do not object if regulations are to be tabled to have even more than six qualifying dates if experience proves them necessary.
Amendment, by leave, withdrawn.
Mr. Sweetman: I move amendment No. 2:—
To add to Section 3 a new sub-section as follows:—
(2) The categories of persons referred to in sub-section (1) of this section shall be grouped on a geographical basis.
This is another matter in which the Minister expressed his views but it is a more serious matter than the last. I can see possibilities of regulating  categories other than in a geographical manner—possibilities which would open up a very undesirable field. The Minister might decide that it would be administratively easier to group applicants, instead of geographically, according to occupation—carpenters in one category, builders' labourers in another, painters in another, and so on. That would be highly undesirable because there would be no certainty. I am in entire agreement with the Minister when he says that it is desirable to have flexibility and to give him power to remove one area to another area so as to average out the three areas. But I want to be quite clear that the basis of such averaging will be geographical and not occupational.
Mr. Lemass: As I read the Senator's amendment, it was ambiguous. I was not quite clear as to what it meant. Now that he has explained it, the amendment is clear. It is equally clear that it is based upon a misunderstanding. It may be that, at some time, it will be decided that some other basis of grouping than the geographical basis will be more suitable to the administration of the scheme. We considered other bases of grouping, as I informed the Dáil and Seanad, when the Bill was being originally introduced, and we decided that, having regard to the circumstances, the geographical basis of grouping was the most desirable.
We did not provide for these groups in that Bill, because it was desired again to take rigidity out of it. I think we made a mistake in the original Bill providing for geographical areas without having experience of the operations of the measure or even the statistical data upon which to delimit those areas with the administrative result that we intended. However, I think the Senator is forgetting that in so far as new claimants are concerned, persons who become qualified under the new qualifying dates, to be fixed under Section 3, cannot be grouped on a geographical basis. Persons in that particular category, new claimants, would come from all parts of the country and would have payment periods fixed on a personal basis. At a stage, at the end of the first payment period, each person  will be automatically placed in the geographical group determined by his place of residence. You cannot, just on the date on which he applies, place him in a group determined on a geographical basis. If the Senator understands the administrative device, as I explained it to him, he will realise his amendment is impracticable. On the qualifying date a number of persons— say, 10,000 persons—will apply to be admitted to the scheme and to receive children's allowances as from the beginning of the next payment period. These persons will come from all over the country and they will have fixed for them on a personal basis a payment period which will take into account the area in which they reside. We are ensuring that the end of that payment period will in each individual case terminate at the end of the appropriate payment period for the geographical district in which their residence is located. At that stage, they will be in their appropriate geographical group, unless they change their residence.
It is not necessary, nor is it practicable, to make the provision proposed in the amendment, nor do I think is it wise at this stage to leave out the possibility at some future date of the abandonment of the geographical basis and the adoption of the vocational basis such as Senator Sweetman foreshadows. I do not think it is likely to be practicable but if it should prove to be a better system of administration there is no reason why we should have a statutory provision against it.
Mr. Sweetman: It is not desirable to leave out altogether the vocational basis without further consideration, but I think that it is not only desirable but essential to come back to the Oireachtas before we do that. Quite apart from that, the Minister, as I understand the working of his scheme, is misconstruing the application of this amendment. The whole country, the whole State, is divided into three areas for the purpose of the administration of this scheme. These three areas are divided geographically in such a way, or to be more accurate in describing it, after the Bill passes will be divided  geographically, in such a way, that the number of persons claiming children's allowances in each of these three areas will be approximately equal. Obviously, doing that will mean that you are going to have easier administration and on that I am in entire agreement. Apart from that, there are the people already claiming allowances and there are going to be new people to claim allowances. Supposing, we take for example, at the moment, that the qualifying date for what I would call the western area is the 1st May and that these new people apply now. We had better take the 1st June.
Mr. Lemass: That is precisely the point. Take any date.
Mr. Sweetman: You must take two months ahead for the purpose of my example.
Mr. Lemass: That is the qualifying date for the two categories of persons, one, the persons in the appropriate group repeating their claims and, two, new claimants. I want the Senator to relate that second category to his amendment.
Mr. Sweetman: I am not going to have the slightest difficulty. There is going to be a qualifying date for the western area. A new claimant has a third child to-morrow. That claimant's application comes in for the first time and the claimant resides in Roscommon shall we say. Another claimant comes in for the first time in Mayo on the following day. The Minister is going to make a new category as he said himself of groups by counties.
Mr. Lemass: No.
Mr. Sweetman: All new persons claiming for the first time, all the new people who are claiming in Roscommon will be put together in a group and they will be qualified. Then they will be transferred to the western payment period and they will come into the scheme—there is an extra date before the 1st June. Probably it will be the 1st April under this Bill. They will come into the scheme and be paid from the 1st April for eight months. That category would be a separate category.  It would be a category of new persons, but the category would be grouped by relation to geography because you are not going to put into the same scheme people who are in the western region and in the eastern region. Quite obviously under the Minister's own administration it could not be done. The only difference about it is that my amendment does not make it impossible that you would have one category for each of the three areas of existing claimants and you will have several new categories in each of the three areas also for new claimants, but they will be grouped on a geographical basis as the Minister now intends. I want to make certain that before the Minister changes the geographical basis to a basis of vocational grouping he will have to come back to the Oireachtas.
Mr. Lemass: I will make another attempt to make the position clear to the Senator. If we are going to make an effective device to deal with new claims there must be after the qualifying dates two categories of persons. One, those in the group renewing their claims and those applying for the first time from any area. I want to say that those that are in that category of new claimants cannot be grouped on a geographical basis.
Mr. Sweetman: Why not have four categories in all. One for the existing ones for that area and three more on a geographical basis for three different areas.
Mr. Lemass: What is the point in doing that? One of the groups on the qualifying dates will be the new claimants and they will come from any part of the country. At some subsequent period they will have to renew their claim on the next qualifying date for their area and whatever is the qualifying date for their area will also be the qualifying date for another category of persons, namely, new claimants, on that day.
Mr. Sweetman: It is just as practicable as the amendment I introduced under the Principal Act. The Minister could not understand it at that time; now he does.
Mr. Lemass: The Senator had better put the right tail on the right dog.
Mr. Sweetman: He has got the right tail on this dog. If the Minister does not like the wording of my amendment I am quite prepared to accept any wording that will ensure that the grouping will be geographical.
Mr. Lemass: No, I do not propose to put in the Bill the obligation of geographical grouping. I mentioned to the Seanad the reasons why I thought that was, in the present circumstances, the best system.
Mr. Sweetman: Now we really know the situation. The situation clearly is this, that the Minister wants to make certain that he has a further extension of the powers which his Department, more than any other Department, has been strengthening or extending in the last four years.
Mr. Lemass: It would not make this scheme work.
Mr. Sweetman: We had it the other day in the House and I do not propose to run over the ground again when we were discussing the question of delegated legislation. I do want to say a few things on the subject now as it is quite clear what the Minister has in his mind. We have got to make certain that the Oireachtas when it enacts legislation is not enacting certain vague principles without getting down to what these principles mean. Supposing, for example, the Minister came in here and asked us to enact a law to say that all men should be honest, but leaving it to the Minister himself to enact the manner in which dishonesty should be dealt with, to prescribe the things that were dishonest, and so forth, would we not regard it as ludicrous? That is exactly the same principle.
I am entirely with the Minister when he states that he wants flexibility in administration. I want to see flexibility in administration too, but equally I want to see that the principles behind the administration of the Act are principles which will not be changed without the knowledge of the  Oireachtas. The Minister has been most careful to ensure that he will give no undertaking that the Oireachtas would again be consulted before he would change the geographical distribution. If we are to have a vocational basis for children's allowance then we shall have a basis of uncertainty so far as many people are concerned. They will not know where they are to go or when they are to make a claim, whereas if a geographical area were prescribed everybody in that area would know beyond question what they were to do. It is impossible to enact legislation to cover every contingency, but equally it is possible for legislation to lay down the principles in such a way that the administration of these principles will be carried out in accordance with the desire of the Oireachtas at the time of the making of the law. If you are going to leave a matter of such immense importance as a change in the whole basis of the issue of children's allowance to the Department, then it appears to me it would be very much better for the Minister to come in here with a Bill of three lines, saying: “An allowance of 2/6 shall be payable in respect of each child and the Minister shall say when and in what manner such allowance shall be paid”.
Mr. Lemass: The fact in this case is that I came in here with a proposal to improve the scheme for the payment of children's allowances in the interests of new claimants. I explained to the Seanad how that could be done and how the scheme which the Seanad approved in the original legislation could be amended in certain ways, so as to benefit new claimants. Senator Sweetman now wants to make it appear that he is forcing the Government to do something which the Government itself proposes to do and which nobody else thought of doing until the Government produced its proposal.
Mr. Sweetman: The original Act contains specific mandatory provisions about geographical areas. This does not.
Mr. Lemass: This is an improvement.
 The Seanad divided: Tá, 17; Níl, 18.
|Baxter, Patrick F.
Counihan, John J.
Duffy, Luke J.
Fearon, William R.
Keane, Sir John.
|McGee James T.
Madden, David J.
Moore, T.C. Kingsmill.
O'Donovan, Timothy J.
O'Reilly, Patrick John.
Parkinson, James J.
Ruane, Seán T.
|Clarkin, Andrew S.
Farnan, Robert P.
Keane, John Thomas.
|O Buachalla, Liam.
O'Dea, Louis E.
O Siochfhradha, Pádraig.
Nic Phiarais, Maighréad M.
Ryan, Michael J.
Tellers:—Tá: Senators Crosbie and Sweetman; Níl: Senators Clarkin and S. O'Donovan.
Sections 3 and 4 agreed to.
Mr. Sweetman: I move amendment No. 3:—
In sub-section (2) to delete paragraph (a).
I am not as clear on the interpretation of this section as I was on the previous one. So far as I can see, the section means that the Minister is to determine what the words “normally reside” mean. I think it was Section 3 of the Principal Act which contained very clear and specific, perhaps too specific, provisions on that matter. The Minister now wants to declare what the meaning is of these two words. I think it would be very much easier, not only for the referees appointed under Section 8 of the Principal Act, but also for claimants, to know what their possible rights would be if there was a definition of the words “normally reside” included in the Bill. It is not for me to attempt to define what the Minister has in his mind, but I do submit that if he wants the words “normally reside” to mean something other than their normal meaning, he should make clear in the section what was in his mind before he introduced the Bill. I am sure the Minister is not going to sit down and work out rules after the Bill has gone through, because that would be a reflection on him, and I am not prepared to suggest anything of the kind at this stage. I do submit, however, that for the deciding officers, the referees, the claimants and the members of the Oireachtas—who will be called upon if the matter is not made clear in the Statute—it is highly desirable that what the Minister has in mind should be made clear in the Bill. I speak subject to correction on this, but it appears to me that what the Minister has in mind is to have an ad hoc decision or decisions: to have some general rules laid down. I think that if some general rules were laid down for us so that we could see the practical aspect and effect of them, it would be desirable.
Mr. Lemass: I am sure the Senator understands that the adoption of his amendment, as it stands, would merely have the effect of leaving it solely to the discretion of the deciding officers to determine according to the facts of each individual case. That, I am sure the Senator will agree, would be undesirable. In the first place, in so far as decisions have to be made, it is preferable that they should be made by the Minister rather than by the deciding officers appointed by him. Secondly, it is desirable that all deciding officers should make decisions in  accordance with the same principles and according to the same rules. I gathered from the Senator's remarks that his amendment is really intended not so much to change the Bill as to create a situation in which it would be necessary to define in the Bill the rules which would guide the deciding officers. There is something to be said for that contention and, if the position were as simple and clear-cut as the Senator assumes, that course would have been adopted. I think I could easily define now rules to be embodied in the Bill, for the purpose of making regulations which would, in fact, operate in the great majority of cases. But, in the great majority of cases, there will be no difficulty. We have not had sufficient experience yet of the various types of cases that may arise to enable us to say that rules which we would embody in the Bill now, or in an Order made now, would be complete in every respect, and sufficient to ensure that the deciding officers would know precisely the manner in which each case coming before them should be decided. The reason why the second sub-section of this section appears as it is now is precisely for that reason: the possibility that whatever rules we might draw up and embody in the Bill now, on the basis of our experience to-day, might prove insufficient to guide the deciding officers in all cases, or might require amendment at some stage to deal with new types of cases and new circumstances as they came to light. I do not know; nobody could say definitely that no case will ever arise in the future which may be dissimilar from those which have arisen in the past and which could not, therefore, be determined on the basis of rules made in the light of past experience.
Such cases may happen, however, and the argument against framing rules and embodying them in the Statute now is that they might result in injustice and in depriving certain people of children's allowances to which they were entitled, or might prevent us dealing with certain cases which, obviously, would not be very large in number. I think, therefore, that from the point of view of the smooth working of this measure, and to enable the rapid  adaptation of rules to cases which might not have been foreseen, it is preferable to proceed on the basis laid down here, and to give the Minister power to prescribe the rules which will bind the deciding officers and permit them to decide on all the cases as they come before them, with uniformity as between one officer and another, and to draw the Minister's attention to cases where the existing rules do not seem to be adequate.
Mr. Hayes: Surely, the purpose of this section is to decide, as between one person and another, where two or three children might be residing with their parents or other relatives, as to what would be regarded as “normal residence” for the purpose of getting the children's allowance.
Mr. Lemass: Yes, that is right.
Mr. Hayes: Surely, it should be quite easy to decide or define what is normal residence. I take it that that means where the children are normally residing, whether with their parents or with other people. According to the Minister, you are going to give allowances for two or three children to people with whom they do not normally reside at all. Now, I am not trying to be clever or funny here at all, but surely “normally residing” is capable of a general definition, where there might be a certain allowance for some elasticity under the rules. Otherwise, it would appear that the Minister makes rules for every case. Of course, I can conceive of a case where the Minister might have to make a special rule for a special case, and that seems to me to be an indication of the whole scheme by which people will get allowances for the children. That should be a matter for the Oireachtas, but, instead of allowing the Oireachtas to decide what is meant by “normal residence”—by laying the rules and regulations on the Table of the House and so on—you are going to leave it to the deciding officer to decide what “normal residence” means.
In other words, the words “normally residing” in this Bill may be interpreted in a manner which no reasonable person would adopt in regard to  the matter of “normally residing”. I am not accusing the Minister of wanting to do anything wrong—I know that he does not want to do anything wrong. He wants to give children's allowances to the maximum number of people, but he wants to keep the power within himself to decide whether a particular person is to get the allowance, and I think that that is quite wrong. I think it should be possible to determine, on a stated principle, what persons should get the allowance. If there is no stated principle—and there is none here in the Bill, so far as I can see—then the whole thing becomes arbitrary.
Mr. Baxter: That is the impression the people get.
Mr. Hayes: Not alone do the people get that impression, but it seems to me that this leaves the thing purely arbitrary, and that is what is wrong with the whole idea. I admit that the Minister is quite right in his interpretation of what Senator Sweetman wants. He wants to take out this paragraph, so that the Minister would be compelled to define what is meant by “normally residing”, and I think that that is quite capable of being done. The Minister, of course, may say that, in regard to many enactments, various difficulties, which had not been foreseen, arose afterwards. I quite agree, but it should be possible, between the Attorney-General, the parliamentary draftsman, and the Minister himself, to find some way of defining what “normally residing” means, and surely the principle could be embodied in this section, and the power to make rules and regulations could remain with the Minister. This is not a matter of questioning the bona fides of the Minister, but the Minister's approach is that he is so anxious to get the thing done that he wants to decide in an arbitrary manner that such-and-such a person should get the children's allowance and, of course, that also means that he can decide in an arbitrary manner that another person should not get it.
Mr. Lemass: I think the Senator misunderstands the whole position. In the Principal Act, we tried to define  what “normal residence” meant, but experience has shown that that definition gave rise to difficulties in the case of conflicting claims, and we want to avoid such conflicting claims.
Mr. Baxter: For instance?
Mr. Lemass: I gave these examples in this House before. Senator Baxter, if he had been here on the Second Reading, would have been aware of the type of cases I have mentioned. I gave, for instance, the case of a family where, for one reason or another, the children were residing with the grandparents, and the parents were making no contribution towards the maintenance of the children residing with the grandparents. In the original Act, “normal residence” was interpreted in relation to maintenance, and the fact that persons were maintaining a child who was residing with them was prima facie evidence that the child was normally residing with them.
Mr. Sweetman: Oh, no. Surely, it is the other way about. Surely, the interpretation of Section 3 was that “normal residence” meant that the child should be residing there, and there was no question about maintenance at all.
Mr. Lemass: That is true; the essential thing there was maintenance, and maintenance was assumed to be where the child normally resided.
Mr. Sweetman: But the Minister stated that “normally residing” was defined, but I cannot find it.
Mr. Lemass: Maintenance was mentioned there, but, as I have stated, experience has shown that there were conflicting claims. The parents claimed children's allowances on behalf of their children who were residing with the grandparents, and then the grandparents also claimed for the children's allowances on the ground that the children were being maintained by them.
Now, we had so many difficulties in applying the provisions of the original Act that we decided to cut clear of them altogether, and to put in one condition which must be complied with by the claimants. When the original Bill was introduced, a number of other  qualifications were contained in it, but were eliminated by amendments. It is proposed now that claimants have to conform to only one condition in order to secure children's allowances. That condition is that qualified children in the requisite number are normally resident with them.
The question arises as to what is “normally resident”. In the particular case I mention, the children were temporarily absent from home on the qualifying date, and were residing with their grandparents or other relatives, even though the children were normally resident with their parents.
Senator Hayes says that if we can make rules in the Department, we can also put a section in the Bill to cover them. That is true. We can make rules on our present experience, but I am not going to say that we have succeeded in solving all the difficulties which have confronted us in the administration of this measure.
We made an attempt to solve these difficulties in 1944. The relevant section in the 1944 Act was amended more than once, and, even when it was finally passed by the Oireachtas, it proved to be unsatisfactory in practice. We can devise rules, but I feel certain that these rules will be also insufficient to cover every set of circumstances in which a deciding officer may be called on to settle. Therefore, I think, it is desirable that we should not proceed on that basis in the present Bill. I feel that we should not put these rules into the Bill, because our experience may show that amendments to suit varying circumstances will be necessary. For that reason, it is proposed that the Oireachtas should adopt this principle that the Minister should have power to make rules.
The Minister has no right to decide in particular cases. Particular cases will be decided by the deciding officer applying the rules made by the Minister. Necessarily, these rules will have to be of a general character. They cannot be particular rules for particular cases. They will have to be general rules to be applied by the deciding officer in the particular cases. The argument against putting them in the Bill is that it will make the position  much too rigid. Even though our experience of the administration of the measure is fairly long, it is not long enough to enable us to say definitely that we can prescribe the final form of the rules which the deciding officers will apply. At some stage, it will be possible, perhaps, to take the rules as modified by experience and to say that after our experience we can now make rules covering every particular type of case which may arise. But, at present, that cannot be done. Whatever theoretical objection Senators may advance, I feel that it is unwise to attempt to put the rules into definite form now. It would impair the smooth working of the measure.
Mr. Ryan: This is a new effort in legislation. The Legislature has enacted that any person with whom three or more children normally reside shall be entitled to a family allowance. The Minister now makes a claim to impose an interpretation of the expression “normally resides”. Whether a child normally resides here or there is a question of fact in every particular case, and I think it would be beyond the power of the Minister to make rules which would cover every particular claimant.
This Bill seeks to amend the Children's Allowances Act of 1944. Section 8 sub-section (1) of that Act enacts:—
“Subject to the provisions of this Act and in accordance with regulations made thereunder, every claim for or in respect of a children's allowance shall be made to the Minister, and every question arising thereon or in relation thereto shall be determined by the deciding officer.”
Sub-section (2) of the same section provides that if any claimant is dissatisfied with an award or decision of a deciding officer in respect of any children's allowance, the question shall, on application being made within the prescribed time, be referred to one or more referees selected by the Minister in the panel of referees.
Now, in the Income Tax Acts, the Revenue Commissioners do not make rules for the purpose of determining where a person resides; that is a question  of fact to be determined by the Special Commissioners. Here, we appoint deciding officers to decide questions of fact with an appeal to a referee. I think the deciding officer is the person who rules whether a particular child resides with a particular claimant, and I cannot understand why there has been any difficulty up to the present time. It is purely a question of fact, and it is a matter for the deciding officer to make up his mind on facts. If the deciding officer is not capable of doing it, then the referee ought to be capable of doing it.
I cannot see why rules should be made for the purposes of determining questions of fact, and I think that no rule can be made which would be applicable to every particular case. Each claim must stand on its own two legs. There may be different facts, there may be thousands of different cases and I cannot see how it would be possible for a Minister to make rules to cope with all of them. In my opinion, the making of rules by the Minister tends to give an artificial meaning to the words “normally residing”. It is not what the Legislature intended in the words “normally residing”, but what the Minister thinks the Legislature meant. I say that the words “normally residing” should be defined in the Bill, and that if any question of law arises, it should be decided by the courts.
Mr. Lemass: But, of course, that matter would not be decided by the deciding officer. The Senator is wrong in thinking that every single case should be decided simply by the deciding officer. The Bill says that if the child is a qualified child on a qualifying date, then the claimant is entitled to a children's allowance, if there is residing with him the requisite number of qualifying children. It is not practicable to cover in the Bill all cases which may arise. But, nevertheless, the Bill provides for the payment of allowances in respect of children who are normally resident with their parents on the qualifying date. An effort must be made also to provide for cases where there has been some interruption in the  residence of the child in the parental home.
Many such cases have been mentioned in the course of these debates— a very considerable number has been mentioned in the debates on the principal Bill. Power must be given somewhere to make rules which will ensure that the deciding officer will not rigidly apply those qualifying provisions so as to prevent people from getting the allowance who might not, because of accidental circumstances, be able to sustain their claim.
In the principal Act, we had very elaborate provisions to deal with particular cases of persons who were entitled to sustain claims in respect of children they were maintaining. Elaborate as these provisions were, we found they were insufficient to cover every type of case or to eliminate the possibility of conflicting claims in respect of the same children. We decided, therefore, to try to secure a simpler definition and to take power to modify the rules, as experience had shown to be necessary, until we had a clear and workable system. I do not see any objection whatever to giving the person responsible for the administration of this measure power to make general rules applicable to general circumstances. It is a very far-fetched, theoretical objection to say that if we cannot work this scheme on a rigid basis, in which everything is prescribed in advance, we should not work it at all. I see no objection whatever, in democratic theory, to the Legislature adopting a scheme which requires to be operated by way of giving the administrator power to make general rules applicable to general circumstances.
Mr. Ryan: I should have no objection if the section were phrased differently. If the section provided for residence “for the purposes of this Act” and if the Minister were given power to determine with whom the qualified child should reside “for the purposes of the Act,” I should not object, but the use of the term “normally resides” creates a new situation. If there is to be a residence qualification for the purposes of the Act, I cannot understand why the Minister should get  power to make rules determining with whom a qualified child “normally resides”. “Normally” applies only to the circumstances of the particular case. If the Minister thought it necessary for the working of the Act that the child should reside with a person “for the purposes of the Act,” then he could make rules accordingly. What I object to is the making of rules for determining a fact. You could make rules to determine whether a person was over 21 or under 21. I do not understand why it is necessary to make rules to determine this particular matter. If a residence qualification was necessary, then a residence qualification might be prescribed by rule but I cannot understand why the Minister should require power to make rules to determine where a child “normally resides”. A qualified child may reside with two different persons. It is a question of fact then with which person the child “normally” resides. I have no particular objection to the principle but it is rather inapt to make rules for the purpose set out in the section.
Mr. Lemass: I do not think that there would be much difference between the section as it stands and as it would be if the phrasing suggested by the Senator were adopted. Under the Principal Act, we put the emphasis on “maintenance”. When we were devising this scheme originally, it seemed that it was the natural thing to say that the amount of money intended to assist in the maintenance of the child should go to the person who was, in fact, maintaining the child. We endeavoured to prescribe in that Act rules for determining what constituted “maintenance”, and “maintenance” was as much a question of fact in that case as “normally resides” will be in the future. Those rules were quite elaborate. If a child were residing with its father, we provided that the father should be deemed to be maintaining the child, even though a rich uncle was contributing to the cost of the child's education or sustenance. And so on with regard to the different types of case we could then visualise.
Experience has shown that those rules were too rigid, that there were  many cases of families temporarily split up on the qualifying date in which an allowance could not be paid because all the children were not in the same home on the same date. If they had been together on the qualifying date, the allowance would have been paid to somebody, but because two were with a parent, two with a grandparent and two with an uncle, none of the homes was allowed to receive an allowance. We are taking the emphasis off “maintenance” and placing it on normal residence in that particular type of case and we are taking power to make rules whereby all the six children will be deemed to be normally resident in the parent's home, even though, on the qualifying date, they may be actually resident somewhere else and be maintained by someone else. In such circumstances the children's allowances would be payable to the parent in respect of the six children.
Apart from the difficulty that the system envisaged in the 1944 Act did operate to deprive many claimants of the allowance, there was also the possibility, to which I referred earlier, of conflicting claims. A claim might be made from, say, the uncle's home, where two of the children had gone to reside, the uncle having two children of his own. There would have been four children in the house on the qualifying date, and there was the possibility of a claim from that house, even though two of the children were, in a sense, only temporarily resident there and were normally resident in their own home. The uncle could take advantage of the addition to his family to sustain a claim, and the parent, not having the requisite number of children in the house on the qualifying date, could not sustain a claim. The balance of argument seems to be in favour of removing the term “maintenance” from the Bill and making normal residence the basis of the scheme. In that way, we could, by framing rules designed to ensure that children would be related to their parents in all circumstances unless it was quite clear that the link between parent and child had been finally and permanently broken, make the parent eligible to receive the children's allowance and simplify the administration  of the Bill by bringing it into closer accord with what the public regard as the natural arrangement.
The question that arises on this amendment is, if normal residence is to be the deciding qualification, and if there are to be rules to interpret “normal residence” for the guidance of the deciding officers in the particular cases to come before them, can we not define those rules now? We could do so. I have no doubt that we could frame rules for the guidance of the deciding officers and put them in the Bill but I am afraid that rules framed now, in the light of our present experience, would also prove to be inapplicable in certain circumstances—would prove to be so rigidly framed as to create new difficulties and be inadequate to cover all the types of case likely to arise. I think it is desirable that, instead of trying to frame in final form and to embody in the Bill rules which cannot be changed except by subsequent legislation, we should adopt the device of giving the Minister power to make rules and to amend those rules if experience shows amendment to be necessary. At some future stage, when the administration of the children's allowances scheme has behind it the body of experience which is behind, say, the unemployment insurance scheme at present, then rules could be prepared which we could be reasonably certain would be complete and applicable to all cases that would arise. May I say, however, that, even in the case of the unemployment insurance scheme, the governing Act of which was passed in 1911, there are still coming for determination by the Minister, in accordance with the provisions of that Act, specific cases for which there are no precedents. We have sent forward to the courts recently for determination by them cases which the Minister did not feel competent to decide on his own account, although we have had 30 years' experience of the administration of that Act. In the case of this Bill, we have had only a couple of years' experience and I think that it is far too soon to decide in final form the rules which are to guide the deciding officers.
Mr. Baxter: They need not be in final form.
Mr. Ryan: Between now and the Report Stage, perhaps the Minister would consider the phraseology of that paragraph so as to include power to prescribe rules for determining with whom a qualified child shall be deemed normally to reside. Whereas a child may, in fact, normally reside with his parents or with a certain person, if there is to be certainty, and if the Minister has to determine something which he may find difficulty in determining by rule beforehand, it would be no harm to suggest that these rules should prescribe that a child should be deemed to be resident normally with a certain person in certain circumstances. I am just making that suggestion because, as it stands, he is taking power to determine a fact.
Mr. Lemass: I think the Senator's point is that instead of the form of words “child who normally resides”, which is a question of fact, the Bill should give power to deem the child to be normally residing with the person on a qualifying date, although in fact he is not.
Mr. Ryan: No
Mr. Lemass: That is what we are proposing to do, to deem them to be normally residing. They may not be actually residing on that day, but on the ground that they are normally resident, they should be deemed, in fact, to be there. I will have the drafting of the section looked into.
Mr. Sweetman: The Minister's point in making his case was that he has had two different people claiming for the same children's allowance in respect of the same children.
Mr. Lemass: That was one of them.
Mr. Sweetman: That was one of his cases; the difficulty was that, in one, the child is supposed to be normally resident, but in the other case it was based on a question of maintenance. This whole Bill cuts out the maintenance claim. Therefore, so far as that particular example is concerned, it is no example at all in support of the Minister's case. The original Act said that it had to be considered with whom the child normally resides and, as I  take it the situation is that the Minister is taking power under this section to say that “normally resides” does not mean “normally reside”.
Mr. Lemass: He does normally reside.
Mr. Sweetman: The Minister is taking power whether he had intended to take power or not—I am not going to argue on that—to say that normally resides does not mean normally reside.
Mr. Lemass: There is no mention of actual residence on the qualifying date.
Mr. Sweetman: In anticipation of the fact that this House is going to sit until 10 o'clock to-night, I am going to stay in Dublin, but if to-day were a qualifying date for the purpose of children's allowances, I am certain I would be normally resident, to-night, in my home in Kildare. Therefore, the question of where a person is on one particular day does not enter into it at all but it is a question of where the person normally resides. If the Minister wants to say that though I normally reside in Kildare, I am to be deemed as normally residing in Dublin, because I am here in Dublin for one night, then I cannot understand. That is my difficulty.
Mr. Lemass: That is a simple case.
Mr. Sweetman: It seems to me that the real basis behind the Minister's claim is that his argument is that it is purely experimental. My objection on these lines is quite simple. If you give enough room for experiment by administrators you get administrators defining policy.
Mr. Lemass: No.
Mr. Sweetman: The Minister does not agree with me; we will have to agree to differ.
Mr. Lemass: In 90 per cent. of the cases there will be no difficulty. The children will normally reside with the parents in their parents' homes. In the large majority of the remaining cases there will not be much difficulty in  coming a decision as to where the child normally resides, or to the qualification of the claimant, but there will be all sorts of cases where mothers, as Senators may imagine, never thought about their children or much less attempted to maintain them until there was a possibility of 2/6 a week under this Bill.
Mr. Sweetman: If the child is with her and she is hearing the child every day she must think about it.
Mr. Lemass: If the child is residing with her she would be entitled to it but when the child might not be residing with her....
Mr. Sweetman: You are not suggesting that you are going to give her the allowance if the child is not residing at home with her?
Mr. Lemass: Yes, unless it is shown that there has been an abandonment of the child by the mother or that there is, in fact, no normal and natural link between them.
Mr. Sweetman: Was the point made by the Minister that where a mother did not think at all about her child that he is going to make that mother entitled to children's allowances? Have I misunderstood?
Mr. Lemass: The point I am making is that the rules which will have to be prescribed would not be as simple as was suggested by the Senator's illustration. They would have to be more complicated rules than that to deal with the types of cases that would arise.
Mr. Sweetman: The rule would be to decide on evidence what normal residence means. The Minister is taking power to provide that normal residence does not mean normal residence. That is why I object to it.
Mr. Baxter: And complicated the position by so doing.
Mr. Hayes: I understand some of the difficulties that have arisen. I have been in touch with a number of cases, similar to the one the Minister mentioned, where some members of a large family reside in the country with a  grandmother or an aunt, sometimes with people in poor circumstances, and the child is still maintained by the parent. The Minister wants to protect that. He is under a misconception if he thinks I object to his making rules. I do not object to his making rules to deal with complicated circumstances which arise in legislation of this nature. Rules must be made, but they must be made, only in certain circumstances, and with certain limitations. My objection to this particular paragraph is that the Minister is proposing to do a very wide thing in the Bill, as it stands, and is making no provision that the Oireachtas shall have any control over what he is doing. If, for example, he were to put into this section a definition of normal residence and then take power to make rules and submit them as my amendment No. 4 suggests, then I would not have any objection. My objection at present is not a theoretical one. The Minister used the word theoretical over and over again.
There is no more dangerous word than the word “practical”. If a man takes my watch from me he does a very practical thing and he may regard my claim to the ownership of the watch as pure theory. No word is more bandied about here than the word “theory”. People who object to this kind of legislation are people who believe in law. If you like, law is theory. The thing that brings us here to make laws is theory, but it has a very practical side to it. There is no use in saying that the people who object to certain modern tendencies are simply theorists and take no account of practical life. That is not so. I understand the Minister's difficulty. There is a real difficulty in determining whether a particular parent is entitled to children's allowance on the head of his child, because the child is not resident with him. What the Minister is doing here is giving power to himself to decide that the child is normally resident, where no ordinary person would deem the child to be so normally resident. He may be doing that for a very practical purpose, like the man who took my watch, but he should take some steps to remedy the situation  without handing his right to make regulations over to outside officers. I think if we could combine the two things that, possibly, on further consideration we could get over it—the question of normal residence combined with the power to make rules. If that should prove workable it would avoid the necessity for an amending Bill later. He is taking an extraordinary power at present, a power which in the end means that he will make a rule which defines that the young Murphys are normally resident with their father and the young Kellys are not, in particular cases.
Professor Fearon: I should like to know from the Minister what happens all these rules. There are bound to be a great many collected during the time the Act is in operation. Will they merely accumulate as the years pass and be filed for reference by the staff? The Minister referred to the possibility of freezing these rules at this stage. I should like to know what is going to happen when they thaw? If these rules are not approved of by some future Minister will they be revised? Is it not possible also that the present Minister may change his mind and find it necessary to change the rules?
That is a question which has been running through my mind. I presume the underlying intention is that from the cases which present problems, various principles will be collected which will form a basis of reference for future administrators. The difficulty that I see with this enormous collection of rules is that a particular Minister at a particular time may make a rule that completely alters a previous set of rules. Unless we can devise some method of getting first principles from these accumulated rules, we shall have an extremely bewildering and largely irrelevant mass of opinion on the subject. I wonder would it be possible for somebody to make a decision when doubt arises as to where a child is normally resident?
Mr. Lemass: I did not contemplate, and do not now contemplate, rules as detailed as has been suggested. I think it will be possible to get ordinary  simple rules which will lay down clear principles such as those that were attempted under the relevant section of the Principal Act, subject only to modification as the need for modification arises from the reports of the deciding officers. I do not think that these rules will be so numerous as Senators appear to think, or that their number will be continuously added to. The change will take the form of an amendment of the rules rather than an addition to their number.
Mr. P.J. O'Reilly: I am afraid that there is a certain amount of doubt as to the intention of the Minister in putting forward this new proposal. I should like the Minister to say whether he is going to ensure in future that only the person with whom the child normally resides will get the allowance of 2/6.
Mr. Lemass: The person with whom the child normally resides.
Mr. P.J. O'Reilly: So that the centre of gravity is, as it were, being transferred from the person, who maintains, under the Principal Act, to the person with whom the child resides, under this new amendment?
Mr. Lemass: I certainly contemplate that the rules will provide that the child will be deemed to be normally resident with his parents where the parents are living and are the legal custodians.
Mr. P.J. O'Reilly: One reply of the Minister seemed to indicate a rather extraordinary position. A child may be resident with a grandparent or some relative, but yet it may be deemed to be resident with the parents. That parent may be a rather careless or indifferent parent, but still he will get the allowance.
Mr. Lemass: The Senator may not be aware that there is another provision in the Principal Act which is being retained which gives the Minister certain discretion. Where he has reason to believe that a person is not a suitable guardian, that person will not get the allowance.
Mr. P.J. O'Reilly: Provided there is some such provision I am satisfied, but what has been stated here seems to reveal a curious position, that a very indifferent parent might get the allowance while a grandparent or some relative might be really supporting the child. I should imagine there must be thousands of cases of that kind where the parent does not discharge his responsibilities in regard to the support of the child and still gets the allowance. What provision is being made for that particular situation? It might be that the parent was spending the money in an improper way, and why should the State pass over money to people who will spend it in an improper way?
The Seanad divided: Tá, 18; Níl, 19.
|Baxter, Patrick F.
Counihan, John J.
Duffy, Luke J.
Fearon, William R.
Keane, Sir John.
McGee, James T.
Madden, David J.
Moore, T.C. Kingsmill.
O'Reilly, Patrick John.
Ruane, Seán T.
|Clarkin, Andrew S.
Farnan, Robert P.
Keane, John Thomas.
O Buachalla, Liam.
O'Dea, Louis E.
O Siochfhradha, Pádraig.
Nic Phiarais, Maighréad M.
Ryan, Michael J.
Tellers:—Tá: Senators Crosbie and Sweetman; Níl: Senators Clarkin and S. O'Donovan.
 Amendment negatived.
Section 5 agreed to.
Mr. M. Hayes: I move amendment No. 4:—
Before Section 6 to insert a new section as follows:—
Every Order made under Section 2 and every rule made under Section 5 of this Act and every regulation made under Section 20 of the Act of 1944 shall be laid before each House of the Oireachtas as soon as may be after it is made or after the date of the passing of this Act whichever shall be the later and if a resolution is passed by either House of the Oireachtas within the next subsequent twenty-one days on which that House has sat after the Order, rule or regulation is laid before it annulling the Order, rule or regulation the Order, rule or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done under the Order, rule or regulation.
This amendment is a very familiar one, and I do not propose to take up much time in discussing it. The Minister is taking power in Section 2 to fix certain dates. He is also taking power, in other sections, particularly in Section 5, to make certain rules and regulations. My amendment is directed towards providing that these regulations shall be laid on the Table of each House, and shall be capable of being annulled by a Resolution of either House. The Minister, in this particular instance, would not, I think, lose anything by agreeing to the amendment, because a section in the form of the proposed new section has been inserted in a number of Bills which have gone through the Oireachtas. I think it has been the experience, since 1922, that there has been no abuse of the power granted to each House under a section of this particular kind. It is only in a rare case that use is made of it. Its purpose is to keep the Oireachtas informed of what is happening. It does allow discussion to take place in either House, to have an explanation by a  Minister on the matter at issue, and, if necessary, a decision on it by either House. I think the Minister would be well advised to agree to the amendment. My objection is not to the giving of power to a Minister to make regulations, but I think that in this Bill very considerable power is being taken by the Minister, power of a very wide scope. While flexibility is necessary in matters of this kind, there ought to be some limits to it as well as the power to check. I am therefore proposing that the rules made should be laid on the Table of the House, and, that these should be capable of annulment.
Mr. Lemass: I do not wish to start a discussion on a subject which is near to the hearts of many Senators: the practice of including a provision in Bills empowering Ministers to complete the details of legislative schemes by Ministerial Orders which will have the force of law. I think it is desirable, however, that we should make some attempt to determine the principles and the considerations which would apply to proposals of this kind, now put forward by Senator Hayes: proposals that Orders, made by a Minister under statutory power, should be subject to annulment by motion in the Dáil or Seanad. I think it is true to say that the device of empowering Ministers to complete the details of administrative schemes by Order became necessary because of the ineffectiveness of the Legislature in dealing with these matters of administrative detail. That ineffectiveness is not due to any fault in the Parliamentary system, or any fault in the representatives who are the members of the legislating bodies. It is due to the fact that a system of majority decision is not suited to the determination of administrative detail, and that a particular scheme of administration—a particular method of putting into effect the principles of which the Legislature has approved—must be accepted and put into force as a unit.
Senator Sweetman, in the course of his discussion on the previous amendment, mentioned the possibility of this Bill being framed as a three-line measure, merely providing that children's  allowances at the rate of 2/6 a week should be paid in certain circumstances and that the Minister could make all arrangements in connection therewith. That is possible, but I do not think it is desirable. I think that where the Legislature can give definite directions which are necessary in order to delimit the character or scope of proposals, such direction should be given in the legislation. May I remind the Senator, however, that in that regard our practice is more conservative than the practice in other countries. For instance, in the case of the National Insurance Bill, introduced recently in the British House of Commons, it is proposed to give the Chancellor of the Exchequer and other Ministers power, by order, even to vary the benefits payable or the contributions collectible. In that connection, I am sorry to say that I notice that Senator Kyle and other members of the Labour Party seem to be getting so far out of line with their colleagues in England as to be moving in the other direction.
Mr. Baxter: They are different people.
Mr. Hayes: The Minister's heart bleeds for the Labour Party.
Mr. Lemass: At any rate, I am very sorry to see them departing so far from the complete line of orthodoxy. I suppose, however, that these Senators will make their explanation to the central authority of the brotherhood at some stage, and I hope that some of those visiting people will be able to give them a line on what is happening. However, I want to lay down this principle here, that where Parliament can define the limits within which the Administration should act, that should be done, and we have always attempted to do so.
The problem, however, is different where the Legislature is unable to determine the facts, either present or future, which the administrator must take into account, or where it is not agreed on the facts, and where it is necessary to allow a degree of discretion to the person responsible for the administration of the measure. In such circumstances, if necessary or desirable legislation is not to be unduly delayed or abandoned altogether, the device of  authorising the administrator—the person responsible for the administration of the measure—to carry through the scheme by the making of Orders which would have the force of law is, in my view, desirable and is also fully in accordance with sound, democratic principles.
In almost every case, however, where in a measure of this kind it is proposed to give the Minister power to determine by Order the manner in which the administration of the measure concerned is to be carried out, we get proposals of the kind which Senator Hayes is now moving: a proposal that the power should be given to the administrator, with strings attached to it, so that, no matter what he determines, it may be annulled, not only in its entirety, but in a piece-meal kind of way. Now, I do not think that power to annul such an Order should be given to the Oireachtas, nor do I think it should be asked for by the Oireachtas, except where it can be shown that the power to make Orders can be exercised in a manner which would involve discrimination as between individuals. There are many different kinds of cases where power to make such Orders is given.
In the majority of cases, the idea behind the giving of such powers is to enable the Minister concerned to complete the scheme and carry it through and to give effect to the intentions of the Legislature, recognising the limitations on the ability of the Legislature in that regard. There are other cases where it is necessary to give the person administering the scheme a certain amount of discretion, where a certain power of discrimination must be allowed. I shall be dealing with a similar case in the next Bill that will come before us. I have put into that Bill sub-sections providing for possible annulment in relation to sections where the Minister was being given power, at his discretion, to remove members of a harbour authority and substitute commissioners for them in cases where, in his opinion, having received a report from competent authorities, the harbour authority were not doing their duty. In such cases, where the element of discretion comes in strongly, and where the Minister might be influenced by personal prejudices,  I think the power to annul should be given, but where the question is one of making general rules applicable to general situations, I think the power to make Orders should be given absolutely. So long as it is a matter of general circumstances and general considerations and the Orders apply equally to all the people concerned, there is nothing contradictory to democratic principles or the Rule of Law in adopting such a device, and it operates to preserve the authority of the Minister in that sphere where it is important that his authority should not be in doubt.
Now, we find that Senator Hayes wants to give power to annul the Minister's Orders in three different cases. The first case is in regard to the dates to be laid down by the Minister on which certain provisions should come into operation. I do not think that should be done, nor do I think that it should be asked for by the Oireachtas. It is quite clear that the Minister cannot use that power to give effect to personal prejudices or predilections, of which the Seanad may not be aware. Whatever rules the Minister may make will apply, in general, to all circumstances and to all individuals, but if the Minister decides that a Bill should come into operation on a certain date, he must have documents printed, arrangements made, and so on, in relation to a particular date, and he cannot do that if there is a possibility that the Order may be annulled in the meantime. If that were the case, he would have to wait until the end of the prescribed period, whether the Seanad desired it or not, before he could sanction the printing and other arrangements, possibly involving heavy expenditure. The same thing applies in respect of Section 20 of the Principal Act. Again, it is a matter of whether the Minister can make general Orders which are applicable to general circumstances.
There can, in that case, be no possibility of discriminating between individuals. The only section for which the Senator can make a case is No. 5. In that instance, I have to admit the possibility that the Minister could use  his powers so as to discriminate between individuals. I have made it clear that I do not intend that separate rules should be made to cover every description and type of case.
It is intended that there should be general rules, applicable in general circumstances, to all persons. As Senators will realise, it is necessary to have the powers of the Minister stated widely. If the Minister abuses his powers, the Oireachtas has its remedy. As I have said, we are anxious to get away from rigidity in this matter. If we provide for the possible annulment of these rules the tendency will be to maintain them unchanged for a longer period than might be desirable if the Minister had power to make them without tabling them.
Where Orders of that type must be submitted to the Oireachtas the tendency is to minimise the changes. It is not desired to come to the Oireachtas frequently with proposals to alter them. If I am pressed, I could not resist the suggestion contained in the amendment in relation to Section 5 but I would regard it as undesirable, because I think it would introduce an element of rigidity which the House would not wish. But, if it is pressed, I will accept it. However, I cannot agree with the proposal in relation to Section 2 of this Bill and of Section 20 of the Principal Act.
Mr. Kingsmill Moore: I have listened with a great deal of surprise to the case made by the Minister. He began by putting his case in a very broad and arguable fashion, and in very general terms. From that he passed for a few minutes to distribute hand-grenades in the direction of the Labour Party. Then the Minister put forward an argument which makes me wonder whether I heard it aright or not. The Minister seemed to me to say that only where rules or Orders made by him or under his direction, may be used for the purpose of discriminating adversely against individuals they should be brought before the House for the purpose of approval or annulment.
At the beginning, I would be prepared to assume that discrimination of  that type was a thing that would not happen, and that the Oireachtas should not approach Orders made under the Bill on the assumption that it must scrutinise them because the Minister's officials would be likely to abuse their powers in that regard. But, the Minister went on to make a statement which I find it more difficult to follow. In effect his statement appeared to be that he claimed the right to make mistakes, and that these mistakes should not be subject to review by the Oireachtas.
He said that these proposed regulations will deal with everybody indiscriminately, and I took him to mean that therefore the House should have no right to say or examine any of his particular Orders. We can all conceive that the Minister's Department might make stupid rules, but stupid rules are the type of rules which the House should consider, and, if necessary, amend.
I am making those remarks on the Minister's statement, so that there should be no misconceptions on the subject. We all look forward to the day when the Minister and the Government will come forward with some proposition, with regard to Select Committees or otherwise, by which there can be more extensive provision for supervision of regulations that are not contained in the statutes themselves. The House should be made aware of what the Minister is doing under this Bill and of the procedure of delegated legislation. We should know that. I feel that in nine cases out of ten we will not find that there is anything wrong. Personally, I will be surprised if you find anything wrong even in the tenth. But, I feel that no Order should be valid until a resolution has been passed in both Houses approving of it. That, to my mind, would be a most desirable provision. When we get the Orders of the Day, we find usually a list of Statutory Rules and Orders which have been made by various Ministers. Some of us may not have time even to read the full list, much less to examine the Orders which have been made.
Mr. Baxter: Hear, hear.
Mr. Kingsmill Moore: Occasionally, we may find time to do it, but I would prefer that Orders of the important type to which the Minister refers should be circulated to members of the House and should not come into force until resolutions are passed declaring that they should be operative. Those resolutions might not take up ten minutes of the time of the House, but if there was not anything wrong, anything cardinally wrong, but worthy of consideration; members of the House would have an opportunity of debating it. It may be said that these remarks are not germane to the discussion——
Mr. Hayes: They are every bit as germane as the Minister's remarks.
Mr. Kingsmill Moore: In fact, he did deal in general terms. He could have dealt with it more particularly when he spoke.
Mr. Baxter: I fail completely to understand opposition to such an amendment as this. I think it contains a principle which can be accepted by every Party in the State. There are no differences of opinion with regard to the measure we are discussing now. There are differences with regard to the implementation of certain sub-sections. When the Minister suggested that the acceptance of this amendment would make for further rigidity in the administration of the principal measure, I think he was not really stating the fact. Nothing would be more exasperating to the majority in this House or the other House than to find a member coming forward, without good and sufficient reason, with a proposal to annul an Order which the Minister had made. I do not think that a member of either House would have the hardihood to come before it with such a proposition without good reason. The patience of the House would not stand such a proceeding for five minutes.
Professor Magennis: It is a very patient House.
Mr. Baxter: Sometimes. Assuming that the Minister accepted this amendment and that an Order was laid on the Table for 21 days, how far would that throw the working of the Act out of gear? I do not think that there is any substance in the Minister's argument on  that point. The atmosphere the Minister creates in a matter such as this is that Senators, like Senator Hayes and Senator Sweetman, who argue from a particular angle with the aim of trying to get the Act passed in such form as will enable the Minister to do what the Oireachtas requires, while preserving the rights of the Oireachtas, cannot be honest or well meaning. I think that that is the wrong approach.
Ministers would get far more cooperation from every side of both Houses if they were prepared to recognise that members do not want to be contentious and that they will not move to annul Ministerial Orders unless there is good and sufficient reason for so doing. The Minister would create a much better atmosphere by accepting a reasonable proposition such as this which would not prevent the flexible administration of the Act.
Mr. Ryan: There ought not to be any difficulty in adjusting the position as between Senator Hayes and the Minister. I am sure the Minister does not claim to be entitled to make Orders, rules and regulations under the Act without reference to the Oireachtas. I am sure he does not claim to be entitled to get from the Oireachtas a blank cheque in respect of the making of rules and regulations. On the other hand, he is quite entitled to say that the restrictions imposed by this amendment may make the Bill unworkable in certain respects. I think that the Minister does not claim to be entitled to legislate. Therefore, he will not, I take it, object to this form of section in a case in which it is reasonably applicable. The Minister has pointed out that the Orders under Section 2 deal with the coming into operation of the Act. He has made the case that that is a matter more for himself than for the Oireachtas. The Oireachtas is not, I take it, directly concerned as to the date on which the Act comes into operation but it empowers the Minister, by Order, to fix a day for its coming into operation. Why does it do that? Because an Act cannot come into force without certain preliminaries and a certain amount of preparation. The Minister is the  person best able to judge the date on which it should come into operation.
Mr. Hayes: There is a mistake in the amendment—my mistake. It should read “every Order made under Section 3”. I did not intend the amendment to apply to Section 2.
Mr. Ryan: Even if it did, the same argument would apply. The Minister would be in the best position to decide the appropriate qualifying dates. The amendment also provides that regulations made under Section 20 of the Act of 1944 should be laid before the Oireachtas. I am sure those regulations have been made already. To have them laid before the Oireachtas now would serve no useful purpose. It is possible that, in future, the Minister may make regulations under Section 20 of the 1944 Act but those regulations would relate, more or less, to procedure and not to principle. Therefore, I think that Senator Hayes should accept the offer of the Minister and limit his amendment to the rules made under Section 5 of the Bill. At this stage, I think that no Minister would seriously contend that he should have a free hand in the making of the rules.
A short time ago, there was a debate in this House on a motion by Senator Duffy in connection with the operation of the Henry VIII clause in certain Bills—the usual clause which gives a Minister power to modify the provisions of an Act. It is called the Henry VIII clause because the Tudor Parliament passed an Act empowering Henry VIII to legislate by proclamation. I am sure that no Minister would like to be the successor in title to King Henry VIII as legislator by proclamation. On that occasion, the Taoiseach said that it was a matter for the Oireachtas to see that its control was preserved so far as possible. Therefore, the question is: what control the Oireachtas should endeavour to retain. In this case, I think the necessary control would be in respect of regulations made under Section 5. I suggest that Senator Hayes should withdraw his amendment on an undertaking from the Minister that he will accept this amendment in respect of Section 5.
Mr. Duffy: It is desirable that we should make clear exactly what we are seeking. Senator Ryan has just referred to a debate some months ago on a Motion which I tabled asking for certain returns as to the acts of certain Ministers under enabling sections of various statutes—not for the purpose of having them only, but for the purpose of seeing them, so that the House and the public might know what was being done under these statutes. It seems to me the only purpose of the clause that is suggested here in this amendment is to ensure that if the Minister makes an Order affecting the conditions of life of a section of the community that there should be power, first to review it, and secondly, to annul it if the House thought fit. There does not seem to me to be much force in making the proposal that an Order should be tabled, with power of annulment, with which everybody in the House will agree when it is made, because under Section 2 of this Bill what is enacted is that the Act should come into operation, on such a day or date, as may be fixed therefor, by an Order or Orders of the Minister. The purpose of making these Orders is to simplify the regulations in relation to the payment of children's allowances and if the Minister makes an Order, to-morrow, for the purpose of making it easier for the ordinary applicant to secure the allowances to which he is entitled under the Principal Act, nobody in this House will move to have it annulled. What is the purpose in asking the Minister to table an Order, with power of annulment in 21 days, if we all know in advance that none of us is going to move for the annulment?
I think what the Minister has said himself in regard to Section 5 should be taken into account, because there is something with which the House might disagree, and I think it is reasonable that Orders or regulations made under Section 5 should be tabled, so that if members of the House desire, the matter might be raised on a formal motion for annulment and might, if necessary, be pressed to a division so that the annulment might be secured. Generally, on this question, the view I have taken is that we ought to seek the power of  annulment only where principles are concerned and we ought not to seek the power of annulment merely where an Order is being made for the purpose of clarifying something or of implementing something within the scope of the Bill itself. We had a discussion on this, it will be recalled, during the Transport Bill. I, personally, felt that certain regulations which the Minister is empowered to make might be the subject of a review, but on having the matter discussed here, I came to the conclusion the Minister was right and that there was no point whatever in having these Orders tabled for the purpose of annulment. Similarly in regard to the Harbours Bill. If I might now digress for a moment, there is power taken by the Minister to make an Order for the purpose of adapting certain Acts of Parliament, certain statutory instruments and what I will endeavour to do is to put down an amendment to that section asking that the Order be tabled without power of annulment, because I do not think it would be reasonable or desirable that we should have the power of annulment, but we should certainly see what is being done under the Bill and the local authorities and harbour authorities should know, too, what is being done in relation to the Bill. I do not want to go into the matter further, at this stage, because the Minister is now in a rather entangled position between the glorious and impious, of immortal memory, King Henry VIII, and the Fabian Socialist with whom he got entangled recently. I do not want to make the entanglement any greater, other than to say this, that if the British Socialists are making a mistake in giving too much power to the Ministers, taking them away from the authority of Parliament, I hope we will not follow the example, even led by the Socialist Minister for Industry and Commerce.
Mr. Lemass: I just want, perhaps, to clear up some misunderstandings that may have been created by what I said. When the Seanad is passing legislation and it is necessary to provide for matters of administration, as well as for principles, in order to give effect  to a particular scheme it can do one of four things. It can insist that these administrative details are contained in the Bill itself. That used to be the practice in the past. In more leisurely days we had schedules to Bills, even prescribing the form in which application had to be made for various concessions and matters of that kind; or, as Senator Kingsmill Moore suggests, it can give power to prescribe these things by Order, subject to the positive assent of the Oireachtas. It can give power to do these things by Order, with power of annulment by the Oireachtas, or it can give power to do these things by Order. I think very few would suggest in these more hectic days that we have got the time to discuss in detail and decide by majority vote all the details of an administrative scheme such as the children's allowances scheme, or put into the legislation itself provisions prescribing the type of forms that will be used in making applications, the manner in which the allowances will be paid, the procedure that must be adopted by the Post Office when a voucher is presented, and all these other matters of administration which are now dealt with by Ministerial Order. We come, therefore, to the question of giving the power to deal with these matters by Order, subject to the positive approval of the Legislature, or subject to this power of annulment. I think positive approval would impose a burden on the time of the House which we cannot afford. Legislation during the years of the emergency was not very heavy, and the Dáil and Seanad had time to discuss at leisure the various Bills that came along, but it is extremely probable that in the next few years we will get back to our pre-war experience of a very heavy legislative programme which will fully occupy the time of the Dáil and Seanad, and I do not think they can afford to divert their attention to these matters of administrative detail. I am not going so far as Senator Duffy's friend, Professor Lasky, who in a recent publication urged that Parliament should only pass what he described as “skeleton Bills”, Bills which determine principle and leave all the details to be determined by the  Executive. My suggestion is that, instead of taking power to prescribe details by Order, subject to positive confirmation by the Houses of the Oireachtas, we should have power to deal with these things by Order, subject to annulment in certain circumstances.
I think it is undesirable that we should give to the Houses of the Oireachtas the power of annulment in all circumstances. I mentioned a particular case where it would, in fact, mean holding up the implementation of a measure for some time—and may I point out to Senator Baxter that the period within which a motion can be tabled is not 21 days but within 21 sitting days, which may mean a much longer period. Where should we give power to make an Order subject to the possibility of annulment? I suggested here—I think Senator Kingsmill Moore misunderstood me—that the power of annulment should be retained where the Minister can use the Order to discriminate between individuals. In various sections of the Bill we prescribe matters in respect to which the Minister may make Orders. Where these Orders are necessarily of a general character and of general application, the Oireachtas must rely on the Minister doing that job fully. I admit, as Senator Kingsmill Moore suggested, that the Minister may make foolish Orders, but you cannot guard against that by any legislative device.
Mr. Duffy: On the question of generality, I should like to ask the Minister would he agree that the power of annuulment should lie, in the case of an Order like the Employment Period Order?
Mr. Lemass: I am not going to bring in the question of emergency legislation.
Mr. Duffy: The Employment Period Order was not emergency legislation. It was an Order which deprived certain people of unemployment assistance at certain seasons.
Mr. Lemass: That may be arguable, although, I think, in every case, the House having agreed on the principles of having such an administrative  device, should leave the application of it to the Executive. So long as the Government acts intelligently and in accordance with the wishes of the majority in each House, it will of course be able to get its Orders implemented or to defeat an annulment motion if such motions are moved, but the real advantage of the power of annulment, in circumstances where the Government is a Government with sufficient power, is the possibility of drawing attention to the manner in which these powers are being used. Where the Minister has abolished a local authority, replaced a harbour board by a commissioner, or altered a general scheme of administration to the detriment of individuals, even though he may be fully justified in doing so, I think there should be in the Houses of the Oireachtas power to draw specific attention to that matter by an annulment Order.
I am not going to admit, as Senator Kingsmill Moore thought I was admitting, that these powers may be abused, but it is because, where the Orders can be used against individuals, the possibility of abuse arises that I think the power of annulment should be retained. Where there is no such possibility of discrimination, where it is a matter of giving effect to the intention of the Oireachtas as contained in specific legislation, the power of annulment should not be there. Let me be quite clear that it may be necessary to give the Minister power to discriminate because it is not possible in the Dáil or the Seanad to foresee the circumstances that will arise in every case. Unless we delay matters until we know all the facts, it may not be possible. We must lay down general principles that will apply, and give to some individual the task of determining the circumstances in which these principles will be operated or suspended in their operation because of circumstances that may arise. Where that element of discrimination is possible I think there should be power of annulment. Where the intention is merely to facilitate administration, to avoid imposing upon the Oireachtas the obligation of dealing with details of administration or to permit of a scheme being amended or altered without the  necessity of introducing fresh legislation, then I think that the power of the Minister to make these regulations should be absolute and free from doubt.
I am putting forward that argument because I would like the House to understand the principles on which I have, in framing measures, inserted a provision similar to this or failed to insert it. In the Harbours Bill there are some sections which contain a provision of this kind and some which do not, but that is the basis on which the matter is decided. As regards Section 3, the Senator said it referred——
Mr. Hayes: To categories rather than to dates.
Mr. Lemass: I merely want to say that I hope the first qualifying day under this Bill will be the 1st of October and that every subsequent qualifying date will be at intervals of two months. The only question is whether we can bring the scheme into operation on the 1st of October but I think the date will be the 1st of October.
Mr. Hayes: In spite of the grenades we are nearly in agreement. I like listening to the Minister. He is an extremely good debater. We are discussing rules, and the reason the Minister is a good debater is that he observes no rules and he observes no principles. He called me on a former occasion an octogenarian, a judge, a theorist, and a Victorian. He has stated to-night that the Labour Party are supporting the Conservatives. I do not know whether anybody noticed that when he talked about the British Government he said Labour Government but when he was “walloping” Senator Duffy, he talked about a visiting “Socialist.” The Minister is an expert at labels.
Mr. Kyle: They are synonymous terms.
Mr. Hayes: They are not synonymous terms. The word “Socialist” is a much more objectionable word in Dublin than the word “Labour”. Senator Kyle does not know his stuff as well as the Minister and myself. There was a story here long ago about a very silent member of Dáil Eireann who was speaking to the famous W.B. Yeats who was then a member of the  Seanad. After Yeats had delivered himself of a long flowing period, this member said to him: “Senator, you took the words out of my mouth.” Senator Kingsmill Moore took the words out of my mouth. I have learned not to be astonished at anything, but when the Minister puts forward the theory that when he has power to discriminate against particular classes of people, he should be subject to annulment but that when he has general power he should not, he simply staggers me. If he took power in an Act to discriminate against professors in University College, Dublin, he appears to argue that the House should be able to annul regulations made under such a provision.
If, however, he had power under an Act to shoot all professors he thinks no one should be able to interfere with him because he was exercising powers of a general character. But let us come down to the actual facts. I rather agree with the Minister that a positive approval of regulations would be extremely hampering and should be resorted to very rarely. I agree also that the rules made under Section 2 of the Bill should not be subject to annulment. I was thinking of Section 3 under which the Minister can change a regional classification into a vocational classification. That is a very important change. The powers he takes under Section 5 are very sweeping and I understand from him that in consideration of that fact he will bring in an amendment to provide that regulations made under Section 5 shall be tabled and be subject to annulment. I agree with that, if the House agrees, and I ask leave to withdraw this amendment.
Amendment, by leave, withdrawn.
Sitting suspended at 6.10 p.m. and resumed at 7.15 p.m.
Mr. Duffy: I move amendment No. 5:—
In sub-section (1), page 3, to delete lines 30 to 33 inclusive and substitute instead the following words: “as seems proper having regard to the provisions of Section 5 of this Act”.
 Amendments Nos. 5, 6, 7 and 8, which appear on the Order Paper in my name to Section 6, can, I submit, be taken together. Anything that I have to say on them I propose to say now on amendment No. 5.
An Cathaoirleach: Very well, Senator.
Mr. Duffy: It will be observed that in a number of sections and paragraphs to Section 6, the Minister is taking power to decide certain matters as he thinks fit, according to his discretion, and so forth. I think that, in general, that is an undesirable provision to insert in a Bill, particularly in relation to matters of this kind where it is pretty obvious the Minister, personally, cannot decide all these issues. I am accepting the view that the Minister will accept responsibility for the decisions taken in a case as to whether a particular child was living with a particular person or not; but I want to suggest that it would be a physical impossibility for the Minister to have all the cases which may arise examined individually by himself, having regard to his other responsibilities, and to the number of other Acts which he is required to administer, while at the same time devoting the requisite amount of time to reading the speeches and works of Professor Harold Laski. It seems to me that what must inevitably happen is that some person in the Minister's Department will reach the decision. I do not think that is a desirable thing.
The Minister himself, speaking on an earlier amendment, referred to certain things that were done under the Unemployment Insurance Act. That reminds me that, under that Act, you have a deciding body, outside the Department altogether, in regard to certain matters. That body is independent of the Minister. I refer to the Court of Referees, which has an independent chairman and two other members: one representing employers' interests, and the other the workers' interests. The Court of Referees determines, as between the Minister's officials and the claimant, whether or not a claim made shall be allowed. Under the Health Insurance Acts you have a somewhat similar principle  in operation, whereby an insured person who is dissatisfied with the decision of an approved society has the right to go to arbitration. The arbitrator is an independent person. Indeed, there may be three persons, one of whom would be selected by the insured person. In the event of the insured person being dissatisfied with the verdict of the arbitrator or arbitrators, he has the right of appeal to the Minister, although when the Act was originally drafted the appeal was to the Insurance Commissioners.
This Bill, as well as some other Acts passed recently, takes a different line. We find in this Bill the same idea as that which is to be found in the Widows' and Orphans' Pensions Act— the Minister deciding according to his discretion what shall happen in regard to claims to benefit. I think that is wrong. I am not suggesting that my amendments provide a satisfactory alternative to what is in the Bill. They were not put down for that purpose but rather with the idea of drawing attention to what I conceive to be a bad principle, and in the hope that the Minister himself would consider whether it is not possible to find an alternative method of deciding the issues which arise in Section 6 of this Bill.
The matter raised here has been discussed more or less on previous amendments. The same idea was present to the mind of Senator Hayes and Senator Sweetman when they proposed their amendments. I do not propose to go over that ground again, beyond saying that I think, notwithstanding what the Minister has said, that it is an undesirable development to write into our legislation provisions of the kind that we find in Section 6: provisions entitling the Minister, in his discretion, to decide to whom payment under a statutory enactment shall be made. I would urge very strongly that some deciding authority, independent of the Government Department immediately concerned, should be set up to decide matters of this kind. I do not intend to pursue the matter further at this stage, but I again urge strongly that the point which arises in these four  amendments should be seriously considered by the House.
Mr. Lemass: The purpose of these amendments, in so far as I understand them, is to ensure that the decisions taken in the types of cases contemplated in the section will be given by some person other than the Minister. I noticed, however, that, in the beginning of his remarks, Senator Duffy said that he assumed that the Minister would continue to have responsibility; but, quite clearly, the purpose of his amendments is to deprive the Minister of his responsibility and to ensure that the decisions taken will be taken by the deciding officers.
Mr. Duffy: No.
Mr. Lemass: That is the effect of the amendments.
Mr. Duffy: I said that the amendments had not been drawn to achieve the purpose that I had in view, but I did express the view that the decision should be arrived at by somebody outside the Department administering the Act.
Mr. Lemass: That would be the deciding officer. I think that the Senator is still adhering to his original intention which appeared in his amendments, namely, to give the responsibility of making the decision to the deciding officer. There is a case to be made for that, but it must be clear that, if that course is adopted, the Minister will not be responsible, and that if some Deputy in the Dáil asks why was a particular decision taken, the Minister can only reply: “That was the decision of the deciding officer”, and he can give no further explanation concerning it. The reason why the Bill was framed in a particular manner was to give the Minister responsibility, and to make him accountable for the decisions taken.
I do not think it altogether correct to say that the Minister for Industry and Commerce would have so many other concerns that he would not give personal attention to matters of this kind. At the beginning of the administration of the Act he would require to do so. In the course of time, a number of decisions would have been taken  which would guide further cases, and that has been the procedure in connection with the Unemployment Insurance Acts to which Senator Duffy refers. The reference I made to those Acts earlier related to provisions other than those in which the Court of Referees appears. Under those Acts the Minister decides on the question of insurability: whether a particular type of occupation is, in fact, insurable under the Act, and the point I was making in that connection was that cases of that kind are still arising; although, of course, arising much less frequently now than when the Act was beginning to operate, because, over all these years, decisions have been given which, in fact, govern all such cases, and that, as a matter of fact, is what will happen in this case also. The Minister will have to give a decision; he will have to decide as to whether the course suggested by the deciding officers is the correct one and one which he can defend.
Now, let us examine the cases covered here. The first relates to the case where a child may be qualified in respect of two claims—circumstances may arise in which the same child may be used to support a claim from two different persons. In such a case, the Minister is to be given power to decide on each claim. There can be only one successful claim, and I think that in such a case it is the Minister, and not the deciding officer, who should give the decision, since the Minister may be questioned in the Oireachtas on the matter and will have to defend his decision.
The other cases are similar. One is the case of a qualified person who, before applying for the allowance, dies. In that case, the Minister, at his discretion, may accept the application of some other person in his stead, but before accepting the application the Minister will have to take all relevant circumstances into account. It is quite clear that in cases of that kind it is impossible to lay down hard and fast rules in advance, but again it is a matter for the Minister rather than for the deciding officer. Another case is where a person is qualified and  applies for an allowance, but dies before he is paid the allowance, and, again, the Minister must decide to whom the allowance will be paid. In that case also there must be an element of discretion, and it should be a matter for the Minister rather than for the deciding officer to give a decision. In the final case, the power proposed here is precisely the same as in the original Act, with this difference: that in the original Act, where a person who had been awarded an allowance dies, the Minister could decide to what other person the allowance should be paid, but, in practice it was found that that was too restrictive; and accordingly power is now being given to the Minister to distribute the allowance amongst more than one person. I might give as an example a case that was mentioned in the Dáil when this Bill was going through. That was the case of a family of six children in Drogheda. Both parents had died, and the children were placed in the homes of relatives, two in each of three homes. As the Act stood, I could decide that the children's allowances then current could be paid to only one of the three householders to whom the children had been sent. According to the original Act, that is what I could decide, but the proposal here is that in these circumstances I can give the allowance to one householder or divide it between each of the three households, and that is the only change that is proposed there.
Now, these cases will arise occasionally, but while, no doubt, in the course of time, evidence of similarity in cases will become obvious, at the beginning they will have to be decided on their individual merits, and because of that I think it is the Minister who should have that responsibility. Whether, in fact, he goes into each case personally and arrives at a decision which he personally regards as the most just decision, or whether he relies on the advice of the officers administering the Acts, he will have eventually to defend his decisions in the Oireachtas. If we adopt Senator Duffy's amendment it means that we will leave the decision to some person remote from the Oireachtas who cannot  be questioned. If it were possible to devise some code of rules in advance to deal with such cases, I should be glad to do so, but I doubt whether any such code of rules would be practicable, and therefore, I think that the device suggested in the Bill is better than that suggested by Senator Duffy.
Amendments Nos. 5, 6, 7 and 8, by leave, withdrawn.
Sections 6, 7 and 8 agreed to.
Mr. Duffy: I move amendment No. 9:—
In page 4, line 47, to delete the word “six” and substitute the word “three”.
Section 9 deals with the time limit for prosecutions under Section 12 of the Act of 1944, and provides that notwithstanding anything contained in the Petty Sessions (Ireland) Act, a prosecution may be brought within six months after the date when evidence to sustain the prosecution came to the notice of the Minister. Now, I understand, that the section of the Petty Sessions Act referred to—that is, Section 10—provides that the prosecution must be brought, if it is to succeed, within six months of the date on which the offence is committed. There is, however, a wide departure in this section from the provisions of the Petty Sessions Act, because it enables a prosecution to be brought, not within six months of the date on which the offence was committed, but at any time within six months after the date in which evidence to sustain the prosecution came into the Minister's possession. It seems to me that that is an unreasonable delay. I do not think it is reasonable that the Minister's Department should have six months to deal with the matter after the evidence necessary to sustain the prosecution comes into the Minister's possession. I should say that three months, if it is regarded as a maximum, is not unreasonable, and having regard to the fact that months might elapse between the time the offence is committed and the time when evidence to sustain the prosecution might reach the Department, I think that three months should be sufficient  in which to bring forward the evidence, if it should be brought.
Mr. Ryan: I support Senator Duffy's amendment. I think that when the Minister considers what I have to say he will regard the amendment as reasonable. This section proposes that prosecutions may be brought within six months, notwithstanding the Petty Sessions (Ireland) Act, 1851, when evidence to sustain the prosecution comes to the notice of the Minister. Now, Section 12 of the 1944 Act is based on Section 8 of the Widows' and Orphans' Pensions Act, 1935. In fact, the wording of Section 12 of the Children's Allowances Act of 1944 is practically identical with the wording of the corresponding section of the 1935 Act. By the Widows' and Orphans' Pensions Act of 1937, which amends the 1935 Act, it is provided in Section 24:—
“A prosecution for an offence under Section 58 of the Principal Act may be brought at any time whichever of the following periods latest expires, that is to say:—
(a) three months from the date on which evidence sufficient in the opinion of the Minister to justify a prosecution for the offence comes to his knowledge, or
(b) twelve months after the commission of the offence,
and, for the purposes of paragraph (a) of this section, a certificate purporting to be signed by the Minister as to the date on which such evidence comes to his knowledge shall be conclusive evidence thereof.”
Now, that is a provision which ought to have been followed in this Bill. I cannot see why the three months' provision in the Widows' and Orphans' Pensions Acts should have been changed into six months in this measure. Surely, if evidence comes to the knowledge of the Minister, it does not take him six months to issue a summons against a person liable to be charged.
I hold that three months is quite sufficient for the Minister to make up his mind. Under Section 10 of the Petty Sessions (Ireland) Act, 1851, summonses under the summary jurisdiction  clauses must be brought within six months of the commission of the act complained of. This section enables the Minister to bring prosecutions at any time within six months of the time that knowledge sufficient to sustain the prosecution reaches him.
This evidence may not come in for two years but still the Minister has six months to bring his prosecution. He is empowered by this Bill to issue a certificate under his seal as to the evidence, and for the purpose of Section 12 this certificate shall be conclusive. I do not see why it should take six months for him to decide whether he has sufficient evidence to sustain a prosecution, especially when there was a precedent in the Widows' and Orphans' Pensions Act which ought to be pari passu. I think it is very reasonable.
Mr. O'Dea: I think we ought to be careful about changing words. As the amendment stands, I do not think it can be accepted. Section 10 of the Petty Sessions (Ireland) Act, 1851, provides that a prosecution can be brought within six months of the commission of an offence complained of. But suppose that the Minister discovers an offence the day after it was committed. If you put in three months, he is tied down to three months, or to six months, as the case may be, under the wording of the 1937 Act.
Mr. Lemass: Senator Ryan has mentioned corresponding provisions of the Widows' and Orphans' Pensions Act. That Act has been amended.
Mr. Ryan: That clause was never amended. The time limit for bringing prosecutions as proposed by the 1937 Act remains the same in the 1944 Act.
Mr. Lemass: That may be. As Minister for Industry and Commerce, I am responsible for the Unemployment Insurance Act and the Unemployment Assistance Acts, and there are similar provisions in these Acts which have not been amended. But, let us leave that for the moment. What is a reasonable provision? Most Senators, I think, will agree that attempts may be made to obtain family allowances  by fraud and that it may frequently be a long time before such fraud can be discovered. The practice under the Unemployment Insurance Acts and the Unemployment Assistance Acts is to enable a prosecution to be taken when the evidence to sustain it becomes available. The Minister signs a certificate and the prosecution must be taken within six months. I do not think that is an unreasonable period. It is often difficult to secure all the evidence required for a prosecution and the processes of law do not frequently move with the expedition with which other functions are carried out. I do not think there is any reason for loading the dice in favour of the person committing the fraud.
Assuming that some person has knowingly and deliberately obtained children's allowances to which he was not entitled and has done it so cleverly and skilfully that it is not easy to procure a conviction—when it comes to light—surely six months is not an unreasonably long period in which to prove fraud. The knowledge that some people may have successfully defrauded the Exchequer should convince Senators that it is desirable where fraud is detected that provision should be made to enable a successful prosecution to be taken. I do not think it is altogether unreasonable to allow six months to prepare the case for submission to the court.
The objection to the amendment expressed by Senator O'Dea is an important one and, if it were considered desirable to amend this Bill, the amendment would have to take the form of the section now contained in the Widows' and Orphans' Pensions Act, to which Senator Ryan referred. Having had experience of the administration of the Unemployment Insurance and Unemployment Assistance Acts over a number of years, I know of no case in which it could be said that injustice was done by reason of the corresponding provision in those Acts. I think I can say that the practice is that, as soon as the Minister signs the certificate, the process of the law begins and the case goes to court in the normal time. There is, certainly, no attempt to delay the submission  of the case to the court until the six months' period is nearly up. It is merely to ensure that no person will escape penalty for such a fraud, by reason of the fact that there is delay in bringing the case to court, that the six months' provision is inserted.
Mr. Ryan: In this case, the section provides that the prosecution must be brought within six months after the date when evidence to sustain the prosecution comes to the notice of the Minister. The section then provides that the Minister shall give a certificate as to the date on which evidence to sustain the prosecution came to his notice. He may give that certificate three or four months after the date on which evidence came to his notice. That certificate is merely for the purpose of securing that Section 10 of the Petty Sessions Act, 1851, shall not be raised as a defence in the prosecution. My amendment does not help anybody to defraud the State. The Minister can take a year to collect his evidence. He may then reach a point when he can say: “I have sufficient evidence to sustain a prosecution and am ready to start.”
He does not want six months from the time he has collected all his evidence in which to bring the person to court. Therefore, I say that three months from the date on which he has all the evidence before him should be sufficient to enable him to bring the case to court. In the Widows' and Orphans' Pensions Act, 1937, a different word from the word “sustain” is used. The Act refers to three months from the date on which evidence “sufficient, in the opinion of the Minister, to justify a prosecution” for the offence comes to his knowledge. There, the Minister expresses an opinion. He says that he is of opinion that there is sufficient evidence to “justify” a prosecution. In the case of the certificate, his opinion does not count at all. He gives a certificate that, on such a date, evidence to sustain a prosecution came to his knowledge. I do not know that the word “sustain” is properly used at all, because the court may hold that the evidence is insufficient. I suggest that the Minister should substitute that word by the word “justify” on Report.  The Minister cannot decide beforehand that his evidence is sufficient to “sustain” a prosecution. His case may break down. He may have only a prima facie case. There may be a good defence and the evidence may not be such as to sustain the prosecution.
Mr. Duffy: The Minister seemed to suggest that I was endeavouring to put something into the Bill which would allow a criminal to escape. That is not so. The Minister spoke of bringing people to justice who had been getting benefits improperly and defrauding the State. I do not want to defend or shield those people. I simply want to ensure that the person who is to be charged with an offence will be charged as soon as possible after the offence has been committed, so that his memory will be clear as to what happened. Senator Ryan referred to a possible interval of a couple of years between the commission of the offence and the time at which evidence to sustain a prosecution would come to the notice of the Minister. A further six months is then allowed in which to bring the prosecution. Conceivably, somebody may be charged with an offence two and a half years after it has been committed.
In the main, people charged with offences of this type are not the brightest or most competent people in the world. Oftentimes, they are people who cannot make a good defence. Whatever chance they may have of making a defence, that chance would be greater if the prosecution were brought when the matter was fresh in their memory. I do not think that the Minister is very strong about this particular period, save that he is following the precedent in the Unemployment Insurance and Unemployment Assistance Acts. Seeing that his colleague, the Minister for Local Government, inserted a different provision in the Widows' and Orphans' Pension Act, the matter might be reviewed with a view to seeing whether the section read by Senator Ryan would not be more satisfactory than the section in the Bill. Senator O'Dea made the point that, if evidence were to come to the notice of the Minister 24 hours after the commission of the offence, the six  months permitted by the Petty Sessions Act, need not necessarily run. Senator O'Dea overlooked the very important fact that the period in this section runs from the date on which the Minister gives the certificate—not from the date on which the offence is committed and not from the date on which evidence is given to the Minister.
Mr. O'Dea: Yes, but the Minister must give the certificate on the day on which he discovers the evidence. He must sign the certificate on that date.
Mr. Duffy: That is not in the Bill.
Mr. O'Dea: It would not do for the Minister to give a certificate three months after he discovered that there was sufficient evidence to sustain a prosecution. If he did that, it would be a fraud.
Mr. Duffy: Let us assume that somebody in Donegal or Mayo is alleged to have received a children's allowance to which he was not entitled. That matter is reported to the Minister by an official or by a good neighbour. The Minister cannot regard that as evidence. He must have the allegation investigated and it may take him two or three months to have an investigation carried out to satisfy him that there is prima facie evidence on which to proceed.
Mr. Lemass: I seriously think that the period of three months may be too short——
Mr. Duffy: After the signing of the certificate.
Mr. Lemass: Yes. There is a danger that people will not be prosecuted even though it is obvious that they have committed a fraud under the scheme. Perhaps, I should tell the Seanad how the matter works. In the course of the administration of the Act, officials of the Department of Industry and Commerce find that a fraud has been committed. They collect the evidence of that fraud and, in due course, the file containing that evidence comes to me. Having satisfied myself that there is evidence to sustain a prosecution, I sign the certificate. Now, the certificate  with all these papers are then sent from the Department of Industry and Commerce to the Chief State Solicitor's Office. The Chief State Solicitor's Office has always been in my experience understaffed and overworked. In the course of time, however, that file comes up for attention. It is examined there, and there may be a query as to some of the documents in the file, a request for further information on the documents and certain information as to the officers who will be available in court when the case comes up for hearing. After a time the file is sent from the Chief State Solicitor's Office to the local State Solicitor's Office and he also may be understaffed and overworked, or there may be a delay in getting the case to the court or for some other reason there may not be expedition in the bringing of the case to trial. Now, I know the three months would be a tight fit in many cases. Under the emergency powers legislation it has been my ambition to try to get prosecutions for price offences and similar offences brought quickly, because the propagandist value of a conviction was worth more than all the exhortation or Press advertisements I could pet my Department to turn out, but always, there is a considerable delay in getting the cases brought to court after a detection had been made. Knowing the efforts made by the Chief State Solicitor's Office—made at my request and in response to the pressure I put on them to get these cases heard quickly—I have a feeling that in the piping times of peace cases of this kind will not be brought forward as rapidly as might be desirable. I would be prepared to reduce the period to the minimum.
Perhaps, if the amendment is left over, I will have an inquiry made from the Chief State Solicitor. I will inquire on this basis: that if we reduce the period from six months to three months is there any risk that cases of fraud would not be prosecuted because of the lapse of time? If I felt that there was risk that frauds might successfully escape the penalty, then I would urge that the period of six months be retained. But if the Chief  State Solicitor's Office tells me that no reasonable risk would emerge I am prepared to consider bringing in an amendment.
Mr. Duffy: That is all right. I will withdraw the amendment.
Amendment No. 9, by leave, withdrawn.
Sections 9 to 14, inclusive, agreed to.
Schedule and Title agreed to.
Bill reported without amendment.
Report Stage fixed for Wednesday next.
Sections 1 to 3, inclusive, agreed to.
Mr. Hayes: With regard to amendments Nos. 1 and 2 I think we can leave them over until the next stage, because we had to-day a discussion which was really relevant to this matter, and when we have gone through the Committee Stage and have seen what type of regulation it is proposed to make, we will be in a better position to discuss this amendment, if it is put down.
Amendments Nos. 1 and 2 not moved.
Sections 4 to 6, inclusive, agreed to.
Mr. Counihan: I move amendment No. 3:—
In sub-section (1), paragraph (c), after the word “appointed” in line 9, page 11, to insert the words “by the National Executive of the Irish Live-Stock Trade”; and in that paragraph to delete sub-paragraphs (i) and (ii), lines 10 to 18 inclusive.
The Minister stated that the reason he had for not mentioning the National Executive of the Live-stock Trade in the Bill, as a nominating body, was that at one time the National Executive of the Live-stock Trade broke down, and that as this Bill was to be a permanent one, he could not take the risk of such a thing happening at a future date, which would leave the live-stock trade without a representative on the harbour  boards. I now want to state very definitely that there is not the smallest particle of truth in that fairy tale. The national executive was formed about 18 or 20 years ago and since-that time it has carried on without a break. It has functioned every time; it has functioned continuously since, and, furthermore, none of the six organisations of the live-stock trade which was in existence then broke down. Each of these six organisations which was affiliated with the national executive functioned during that time and are still functioning. As a matter of fact, the national executive cannot be allowed to fail. The work it is doing is of such national importance that if it broke down the Government or the Minister for Agriculture would have to appoint a manager or a commissioner to carry on the work which, they are doing. The national executive through its boards is functioning and administering two Acts of Parliament which are vested in them by the Oireachtas. The Minister stated also that the Minister for Agriculture does not consider it desirable to give statutory powers to one cattle trade organisation. The Minister for Agriculture and his predecessor have given statutory powers already under two Acts of Parliament to the National Executive of the Live-stock Trade. The National Executive is responsible for the safe transport and the protection from slaughter by foot-and-mouth or hold-ups through foot-and-mouth. They are responsible for every beast purchased in the Twenty-Six Counties and exported through any port in the Thirty-Two Counties.
We are responsible for every exporter who purchases his cattle in the Twenty-Six Counties no matter what his nationality is. Every exporter has to pay his levy and he is fully protected during the whole time the cattle are in transit and for some time afterwards until they are sold. Last year the board functioning under one of those Acts— the Livestock Exporters' Insurance Act —collected in levies, £59,477 and they paid out in compensation for injured cattle £133,819. I see Senator Baxter saying how could they pay——
Mr. Baxter: I did not say anything of the kind.
Mr. Counihan: Well, you are thinking of it. I shall tell the House.
Mr. Baxter: Tell the House where you got it.
Mr. Counihan: Every class of damage occurring either in transit or while waiting in the market or due to any hold-up from foot-and-mouth disease is paid for. The agents appointed by the national executive take over every beast that is injured in transit. They have these cattle slaughtered and pay the full amount to the owner or exporter of the cattle. The salvage account last year amounted to £81,059 and that left a credit balance of £6,770 to pay expenses and build up a fund.
I want to ask the Minister is there any other voluntary organisation in the State that is doing such useful work for its members. I do not think the Minister can say there is. Our principal reason for trying to get the National Executive named as the body to nominate representatives to the harbour board is that we are very anxious to improve transit facilities at the port and also to improve marketing facilities. That is our sole and only reason. We are not out for the honour and glory of having power to nominate representatives to the harbour board. We are out to protect our own interests and to do work which the Minister should appreciate. On that point, when our representative gave evidence before the Vocational Commission, we were very highly complimented and held up as an example to other organisations, who were told that they should follow on the same lines. In spite of that the Minister cannot see anything in the live-stock trade.
I tell the Minister that to become a successful cattleman, one requires to have more brains, intelligence and foresight than——
Professor Magennis: Than the Minister.
Mr. Counihan: ——to be a successful manufacturer under the protection which the Minister has given them, to  become a prominent member of a chamber of commerce or even to become a Minister in a Fianna Fáil Government.
Professor Magennis: I knew that was coming.
Mr. Counihan: In 1938 our total exports were about £24,000,000. Of that amount £20,000,000 represented live stock and live-stock products; the other £4,000,000 was made up of beer, biscuits and a few other things. The cattle portion was the main item in our returns for exports. The Minister when he goes out to public functions, public luncheons and public dinners is always stressing the fact that it is up to every section of the country to increase production and export more but he is not paying very much attention to the live-stock trade which is doing all the exporting. He has told the people that unless we export we cannot import. The Minister told us on Second Reading that we should be satisfied when he put us on the same level as the representatives of the dock labourers. I do not want to say anything disparaging about dock labourers but I say we are better entitled to be on the first list than the manufacturers or Chamber of Commerce. He seems to think that we should be quite satisfied that we, the cattle punchers, are put on the same standard as the dock labourers' representatives. The Minister, I suppose, is going to hold to his point and say that it is still good enough for us but I ask the Minister to reconsider his decision and to put us on the level to which we are entitled and which we got from two previous Ministers of two previous Governments. We were nominated in two Bills as the people responsible for collecting an enormous sum—though I will not say it is an enormous sum from the point of view of the cattle trade. They made no exception in these nominations. We are responsible for the trade. I say the present generation in the live-stock trade have helped to build up the greatest trade in live stock of any country in the world and I think the Minister or any other member of the House should appreciate that.
Mr. Lemass: I do not think I have ever been so seriously misquoted in my life. May I remind Senator Counihan that I have no objection to the cattle trade and certainly no objection to the national executive of the Irish live-stock trade. So far as I am concerned, I am sure every member of the trade possesses all the qualities that are required to make a good cattle trader but that is not the point. Senator Counihan's remarks were largely irrelevant to the point raised in his amendment. The question raised in his amendment is whether we should provide that the nomination of members of harbour boards should be done by the national executive of the live-stock trade or by an organisation nominated by the Minister for Agriculture to exercise that function. I have no doubt whatever that the national executive of the cattle trade will be able to persuade the Minister for Agriculture that they are in fact the most representative organisation, certainly so far as Dublin is concerned, and that he should exercise the power given to him under the sub-section, to ensure for them the right of direct nomination to the Dublin Harbour Board. The question that arises is whether we should give that right automatically to that organisation in respect to the four main harbours of the country, and rule out for all time the possibility of giving direct representation on these boards to other organisations of live-stock traders.
Mr. Counihan: There is no other organisation.
Mr. Lemass: All that I know is that the Cork Harbour Commissioners, for example, propose, in relation to this Bill, that the membership of the Cork Harbour Commissioners should include two members nominated by the Cork Cattle Trade Association.
Mr. Counihan: There are representatives of the Cork Cattle Trade Association on the national executive.
Mr. Lemass: That is all right then. I am quite certain that if that is so the Minister for Agriculture will exercise this right in respect of the Cork Harbour Board in favour of the  national executive representatives of the Irish live-stock trade, but circumstances may arise at Dublin, Cork, Limerick or Waterford where some other organisation, representing some other branch of the live-stock trade, such as pig exporters or sheep exporters, may be entitled to representation because of the importance of the trade they are doing through one of these ports. I do not want to rule out the possibility, however, of such an organisation being given representation if that circumstance should arise. Senator Counihan tells me now that he is entitled to speak with authority, and that this organisation, on whose behalf he is making his representations, will be accepted by all traders in live stock as the most representative on all of these ports. If that is so, they will get the representation. Having regard to the fact, however, that this is a Bill which we hope will remain unchanged for a long number of years, I think it is wiser to make provision for the representation of live-stock interests on these harbour boards in the manner proposed in the Bill: that is that the Minister for Agriculture can say which organisation or organisations is or are the most representative, and can give to these representative organisations the power of direct nomination. As Senator Counihan has very little difficulty in assuming that the Minister for Agriculture will nominate those selected by the executive of the live-stock trade, he has no particular worry on the subject: and it seems to me that that organisation will get the representation. I want to make it clear, however, that that only relates to the power of direct representation, and that in so far as cattle traders can get nomination through other bodies, and through that nomination membership of harbour boards, there is nothing to prevent them doing so.
Professor Johnston: Does the Minister think that circumstances are likely to arise in our time which would make the cattle trade anything but the most important of all our exports?
Mr. Lemass: That is not the point at all. Cattle may represent a most important part of our exports, but we  are not dealing at the moment with the importance of our exports. We are dealing with the trade through a number of ports in this country through which no cattle are exported.
Mr. Patrick O'Reilly: Suppose you had the position in which co-operative societies acted as direct exporters of the cattle produced by their members, how would these societies stand in the matter of representation? I think Senator Baxter was right when he said that he did not regard the group that Senator Counihan was speaking for as directly representing in any way the producers. After all, these cattle traders are just business men. They buy cattle and they export them. That is how they make their living, in the same way that a shopkeeper makes his living by carrying on a trade with his farmer—customers. I do not think that these arrangements for representation should be so watertight as to make it impossible for other groups of farmers to get representation on these harbour boards.
Professor Johnston: As regards the constitution of the harbour authorities in the four major ports, it will hardly be denied that Dublin is the only one through which a very big proportion of our total number of cattle are exported. Therefore, the importance of giving adequate representation to the principal organisation representing the cattle trade arises, especially in connection with that port. The Minister, no doubt, realises the central importance of cattle in our whole economy. He is probably quite well aware of the relation between the healthy condition of the cattle trade and of our agricultural exports generally and the possibility of industrial development in which he is primarily interested. I wonder whether he realises adequately how very important the cattle trade is, and what a big proportion of our total export trade is represented by cattle? Cattle may be said to be the one agricultural product that we have of which normally about 80 per cent. are exported. Therefore, the cattle trade interest is more concerned with cheap transport and with the efficiency of  harbour facilities than any other single aspect of our agricultural production. If we look back over our history we find that there was always the tendency to export a surplus of our cattle. Without going back too far, Senators will remember that we had a rather rough time during the economic war. Even during those times, the Irish farmer got from the sale of his cattle —most of them were sold in the export market—far more money than he got from any other single one of his total economic activities. Something between one-third and one-half of the total receipts of Irish farmers came direct——
Mr. Quirke: Will the Senator give us the figures for each year during the economic war?
Mr. Baxter: We do not want to go over that again.
An Cathaoirleach: That is not the question before the House. The amendment deals simply with the nomination of live-stock members by a particular body.
Professor Johnston: I am trying to emphasise the vitality of the cattle trade and its importance in our total economy. I want to remind the House that, in the recent war as well as in every other war, every one of our agricultural exports disappeared except the export of cattle and eggs. Consequently, the cattle trade is more vitally interested in the matter of the efficiency of our harbour facilities than any other of our agricultural activities. Some Senator said that the cattle trader is a middle man, and that anything he gets does not necessarily go back to the pocket of the producer. I would remind the House that there is competition between cattle dealers to get cattle and that the final price that the producer, big or small, gets for his cattle is affected directly or indirectly by the cost of the transport of those cattle from Ireland to Britain. Therefore, every economy that can be made in the cost of that transport is going to mean a bigger price for the farmer, whether he is a large farmer selling finished cattle, or a small farmer engaged in producing stores.
An Cathaoirleach: There is no necessity for the Senator to elaborate that point to such an extent. He is now very wide of the immediate question before the House.
Professor Johnston: Surely it is relevant to emphasise the importance of the cattle industry.
An Cathaoirleach: Is not the Senator elaborating the point unduly?
Professor Johnston: If it is thought that I am pushing an open door, then I shall be only too happy to sit down.
Mr. Lemass: I would remind the Senator that during the economic war, and during the world war in which the vitality of the cattle trade was so evident to him, the cattle traders had no representation whatever on the Dublin Port and Docks Board.
Mr. McGee: I would ask the Minister to consider sympathetically the representations that have been made to him on behalf of the Cattle Traders' Association. I have been associated with farmers' organisations during the many years that I have been in public life. The exporters of cattle are a very intelligent body of men, just as are manufacturers and the owners of factories on whom the Minister looks so sympathetically. The producers of cattle and the exporters of cattle have survived all the onslaughts made on them during all the wars. I suppose that if we try to look into a future world we may feel convinced that we will have more wars. I think that the members of the cattle trade should be encouraged at all times. Listening to speeches made from time to time, one would almost think that the cattle trade was an immoral trade—that it was something wrong to produce cattle. I hope that the Minister will give the cattle traders the representation that they are entitled to on these harbour authorities. It is a natural force in Ireland, and I do think that if any individual organisation, associated with any trade or occupation in Ireland, is to be given representation in this matter, then the cattle traders should be given first consideration. In  my own district we have two ports. I do not know how long one of them will survive. Through the generosity of the Minister and his assistants, when we came to him in the warm days of the summer, I think we were given a grant which enabled us to carry on, but I do not think that what Senator Counihan proposes will stop this thing, so far as we are concerned. At any rate, I have no very great hope that it will be stopped, but I think the Minister should give special consideration to the cattle traders.
Mr. Lemass: I do not want to intervene at the moment, but it is quite obvious that Senator McGee does not understand the question at all. The only question here is, not that of giving representation to the live-stock trade, but of how to give the Cattle Traders' Association direct representation. Senator Counihan says that we should name directly in the Bill the National Executive of the Live-stock Trade. The Bill says that representation should be given to exporters and importers.
Mr. Counihan: The live-stock traders are responsible also for the administration of two other Acts.
Mr. Lemass: Under the Bill, the interests of these people will be safeguarded.
Mr. Sweetman: With all respect to the Minister, I do not think they will. The Minister, I gather, takes the view that under sub-section (3) the Minister for Agriculture will nominate the national executive of the live-stock trade.
Mr. Lemass: He told them that he will.
Mr. Sweetman: Well, yes, under sub-section (3). Now, the national executive of the live-stock trade is not an organisation. It is an amalgamation of, I think, six or seven organisations, and if the Minister will look at the top of page 12 he will see that the Minister for Agriculture may, in respect of the first column of Part I of the First Schedule of this Act, declare that a specified organisation, or two specified organisations, of live-stock traders  shall be appointed. Now, the national executive of the live-stock trade is not a specified organisation, nor could it be declared to be two specified organisations—I do not think it could be described as a national organisation. The national executive of the live-stock traders, as I understand it, is the chairman and vice-chairman of six or seven organisations, and, therefore, under that sub-section, the Minister, I think, would not have the power to do what he apparently wants to do and what the Minister for Industry and Commerce apparently wants him to do. Accordingly, I would say that, regardless of whether we deal with the particular wording of Senator Counihan's amendment or not, the phraseology of sub-section (3) does require amendment because, as the Bill stands at present, the national executive of the live-stock traders could not be appointed.
Mr. Lemass: I shall agree with Senator Counihan that the national executive of the live-stock traders is a national organisation. Senator Counihan and I will not fall out on that.
Mr. McCabe: According to Senator Counihan's remarks, one would imagine that the cattle trade is the only branch of agriculture in this country. Now, if they were to get special representation on the harbour authority it would mean that other branches, and the most important branches, of agriculture would get no representation. Senator Counihan says that the national executive of live-stock traders is a national organisation. They are not. They are people who merely buy cattle and sell them again for profit.
To my mind, the real agriculturists and the real producers in this country are the people who produce, not alone cattle, but butter, eggs, poultry, bacon, beet and other products of the land, and I think that these are the people who should get first preference in this matter. They are the real producers in this country, and I think that the Minister, if he has the power, should give preferential treatment to such  people and allow them to have a nominee on that board.
Mr. Counihan: Senator McCabe says that producers, such as beet growers, are quite as important, from the point of view of representation on this board, as those engaged in the live-stock trade. If the Senator had been listening to the Minister's opening statement, he would have noticed that the Minister said that the only people he would allow on the board were people who were interested in the import or export of commodities; so that wipes out Senator McCabe's statement. Now, the live-stock trade in this country, and particularly the cattle trade, is the only large exporting body in the whole of the country. Last year, our exports amounted to about £14,000,000 worth. If you take into consideration what the export of Guinness's, Jameson's and Jacob's would amount to, you have practically the total exports of the country, and, outside of these few industries, the live-stock trade takes up practically the whole amount of our exports.
Mr. Quirke: What about greyhounds?
Mr. Counihan: Greyhounds are live stock.
Mr. Hayes: Senator Counihan knows all the answers.
Mr. Counihan: But the greyhounds represent something less than £700,000 of the exports of live stock, and that is a very small proportion of the £14,000,000 of live stock exported, which would mostly consist of cattle. Recently, we have not been exporting any sheep or pigs, so it is only cattle, horses and greyhounds that make up our live-stock exports, and cattle would form the biggest proportion of these exports. Now, as I have said, we are responsible for the administration of two Acts already: the Slaughter of Animals Act and the Live-Stock Insurance (Exporters) Act, and I pointed out the amount that we get there. The Minister for Agriculture has already named the National Executive of Live-Stock Traders as the people who should be chiefly responsible for administering those Acts, but the  present Minister for Industry and Commerce, whatever knife he has in the cattle trade, will not have them on the board or give them proper facilities for export.
Mr. Lemass: On the contrary, I said that we will have them there.
Mr. Counihan: Well, then, why not have us named in the Bill, the same as the Minister has named his pets, the industrialists, and the chambers of commerce? I hold that agriculture is more important than the industrialists and the chambers of commerce, so far as this country is concerned, and yet, according to the Minister, the industrialists and the chambers of commerce are the only people who will be named in the Bill, and the only people who will not be named in the Bill are the representatives of the cattle trade or the representatives of the dockers. I said some time ago that the Minister, on the Second Reading, seemed to be out to discredit the live-stock trade when he did not put them on the same footing as the others. I have no objection to the inclusion of dockers' representatives, but they do not contribute anything.
Mr. Baxter: They are very useful people.
Mr. Counihan: They are out to fight their own corner, and good luck to them. They fight it well, and create an occasional strike, but there is no other body of manufacturers or exporters with such good rights as the live-stock trade, and with such a claim to meeting the requirements of the Bill. When we interviewed the Minister for Agriculture he gave us authority for saying that he was in favour of giving us direct representation and having us named in the Bill. The Minister for Industry and Commerce may have some animosity against the live-stock trade. Why he should have, we do not know. If this animosity is personally against me, I will suggest that I will personally withdraw from the chairmanship and I will guarantee him that I will not become a member of any of the boards. That ought to satisfy him.
Mr. Lemass: May I say that I would  like to assure the Senator that I have no animosity whatever against him, and I think he would be a worthy representative of the trade to have on any board?
Mr. O'Dea: That is a compliment.
An Leas-Chathaoirleach: Is the amendment being withdrawn?
Mr. M. Hayes: What about putting Senator Counihan's name in the Bill?
Mr. Counihan: If the Minister will undertake to consider my point, I will withdraw it. If he wants to interview members of the trade to verify the point of view I have expressed here, it would be a very natural thing. I think my proposition is a reasonable one, but I am prepared to withdraw it, as I have said.
Mr. Lemass: I think the Senator need not have the least apprehension that certain organisations could be designated as possessing the sole right of nomination, but I think, from the point of view of permanent legislation I would prefer to keep the Bill in its present form to agreeing to adopt the Senator's amendment.
Mr. Counihan: I will withdraw the amendment if the Minister will agree to consult the Minister for Agriculture.
Mr. Lemass: Yes, I can undertake to do that.
Mr. Baxter: Under the Bill, as it is, you have no choice.
Mr. Lemass: None.
Mr. Baxter: That is in the Bill.
Mr. Sweetman: Could the Minister explain one point? It is about the representation of the Federation of Irish Manufacturers. Why, if the system adopted in paragraph (c) is the better system, is it not adopted in paragraph (d)?
Mr. Lemass: Because there are more branches than one of the live-stock industry. We are giving representation to the Federation of Irish Manufacturers because they can speak for the manufacturing industry generally. There are rather special branches of  the live-stock trade. Take the case of Waterford. There, you may have an export trade in pigs and sheep and no cattle. You may well have complaints that the cattle exporters are offered facilities without sufficient regard being paid to the interests of the exporters of the pigs and sheep. The Bill provides that if the Minister for Agriculture considers that these interests should get special representation he can give them. I gather that the Minister for Agriculture does not consider that any future organisation should have the sole right of nomination. I am providing against the contingency when, for instance, trade in sheep and pigs may be revived in ports now dealing exclusively in cattle.
An Leas-Chathaoirleach: Is amendment No. 3 being withdrawn?
Mr. Counihan: On the Minister promising to consider it I am agreeable to withdrawing it.
Mr. Lemass: I will consider it with the Minister for Agriculture.
Amendment, by leave, withdrawn.
Mr. Duffy: I move amendment No. 4:—
In sub-section (1), page 11, to delete lines 23, 24 and 25 and substitute instead the following words:—
(i) in case one organisation is specified in the order for the time being in force under sub-section (4) of this section, by the organisation so specified;
(ii) in case two organisations are specified in the order for the time being in force under sub-section (4) of this section, as to one of such members by the first organisation so specified and as to the other of such members by the second organisation so specified.”
This amendment presents little difficulty, because the Minister has made an excellent case for leaving himself free to consider the circumstances at the different ports when it comes to the appointment of people representing particular interests. In the Bill, as it stands, he has taken power to select  in respect of four harbours, two persons who are representative of labour interests for the harbour authority. As the Bill stands, he will himself nominate a particular organisation to make the nominations in respect of labour interests.
What I am doing here—although I am afraid it may not be welcome at this stage to Senator Counihan—is to copy precisely the proposal of the Minister in regard to the live-stock interests, and to incorporate them in the Bill in relation to labour interests. In other words, the Minister should leave himself open to nominate one, or more than one, organisation if it is necessary to do so. I take it that what is sought is the appointment to a harbour authority of persons who are competent to assist in the administration of the authority in the national interest who are at the same time representative of different groups of the community associated with the use of the harbour.
It seems to me, therefore, that it may occur—and frankly it can occur now—that you will find in particular instances, two organisations claiming to represent labour interests and as the Bill stands, the Minister has to come down on one side or the other and to say which organisation shall be the body to appoint the persons to a harbour authority who will represent labour interests.
I am merely asking that he will leave himself free to select one of two organisations if the circumstances arise when it appears to him to be necessary to do that, as in the case of the live-stock trade, which has been dealt with. The position is at his discretion in the case of the live-stock interests and that discretion is exercised in consultation with the Minister for Agriculture. In this case it is proposed that the discretion shall lie with the Minister for Industry and Commerce and that he shall designate one, or more than one, organisation, as the case may be, for the purpose of securing the representation of Labour interests.
Mr. Lemass: Everybody knows what the difficulty is in this regard. I have considered this matter very carefully.  At present, the trade union movement is split, and there is in Dublin and, probably, also in Cork—I am not sure about the harbours—a situation in which two organisations will claim, with some show of evidence, to be most representative of the workers in those cities. I hope that that situation will end. If it should end, I think that Senator Duffy would be the first to agree that it would be undesirable that the Bill should be framed in the manner which he now suggests.
Mr. Duffy: No.
Mr. Lemass: I think it would, because it could be urged, in circumstances in which only one council in Dublin and one in Cork could claim to be representative of labour interests in those cities, that the Minister for Industry and Commerce should have power to appoint some other Labour organisations to exercise the same right of nomination as that council would have. In a situation in which we have two such councils, and assuming that that situation continues, is it desirable we should proceed on the basis of giving one representative to each? I am not sure that it is.
It may be that the two representatives nominated by the two organisations would act in harmony and speak with the same voice in matters in which labour might have a particular viewpoint in harbour administration, but, speaking generally, I think it would be more desirable, and better in the interests of labour, that they should be nominees of the same organisation, acting in harmony, one supporting the other in the carrying out of any policy which they considered best for labour interests or for the interests of the harbour. Outside Dublin, there might not be much difficulty in determining the one organisation in those harbour towns most representative of the type of labour employed around the harbours. In Dublin at present, the situation may be more obscure but, in so far as the preservation of this section as originally framed would tend to put pressure upon those concerned to remedy the situation, I should prefer to leave it as it is. This is a matter in which I hesitate to take the step  which has been suggested. I fear that that step might be taken as an indication of some desire on my part to perpetuate the situation in which there are two labour organisations. I felt that it was safer for me to proceed on this basis and make it clear that I wished to have only one organisation which would be representative. If there were but one organisation, I should not, in those circumstances, have power to give a nomination to anybody else.
Mr. Duffy: I can see a set of circumstances, in which had there been no differences, it might be desirable for the Minister to consider whether he should not have a right to select two bodies to make nominations. The situation which has been described does not exist in Limerick. Let us assume that the Minister desires to get an organisation in Limerick which will make nominations to the port authority. There is one obvious organisation in Limerick to which he would have recourse, but that organisation might, for certain reasons, appoint two persons who, in the Minister's judgment, were not the right types of person to appoint to the harbour authority. He might consider that, at the next election, a second body should be given the right to make nomination. That has nothing to do with rivalry or disputes of any kind. I had experience of this years ago when there was no such rivalry. I remember an occasion on which the late Tomás MacCurtain, then Lord Mayor of Cork, made representations to me personally in regard to the appointment of persons on a certain committee.
He told me that one of the difficulties he had was that, if he approached a certain body, he knew in advance whom they would appoint and he expressed the view that he did not just want the persons concerned to be appointed. He discussed with me the manner in which he could get a different type of representative. I suggest this to the Minister in the belief that, if this provision is inserted in the Bill, the Minister will not do anything which will perpetuate rivalry or disunity but, having this power, will be free to say: “I will nominate one  body and give that body the right to appoint two persons”, or, if that body is not acting with a due sense of responsibility, he can say: “I will consider whether it is not better I should have two bodies to make those nominations.” I say that without any reference to the present position in Dublin because what happens in Dublin happens nowhere else. The situation will not arise from that angle in the other ports concerned but another situation may arise. Four ports are concerned and it may be necessary for the Minister to have freedom to select more than one organisation for this purpose.
Mr. Foran: I do hope that the Minister is not going to be influenced by the case made by the last Senator. He is on the wrong side entirely. He proposes to take away rights from the representative body of labour not only in Dublin but in the four principal ports and to leave it to the discretion of the Minister to get the type of representative he requires—not the type that labour people require. I want to tell the Minister and the last Senator that they need have no fear whatever that the right type of representative will not be selected in Limerick. The Senator was unfortunate in his choice. The right type of labour representative will be selected there. The Minister or some members of the Government may not like the selection but the Limerick workers will choose the most suitable people to represent them. I, certainly, believe that the Bill as it stands is very much better than it would be if the amendment proposed by the last Senator were inserted in it. I think that it would ruin the whole scheme. The future life of the Minister would be a very worried one. People would be going around the country abusing him for making this and that choice if the choice were reserved to him. I myself should be the first to complain because I think that the people who represent organised labour are the people who should make the choice and send their recommendation to the Minister. I hope that the amendment will not be accepted.
Mr. Lemass: I was going to say that Senator Duffy's amendment was attributable to the present situation in the trade union movement. If it is not, there is no case whatever for it. I should, certainly, not contemplate the Minister having the obligation of taking cognisance of the type of person nominated. I am quite sure that a number of persons will be nominated by the chambers of commerce and the local councils of whom the Minister would not approve, either, but I do not propose to do anything about that. We are designating certain nominating bodies and we are assuming that, in the exercise of their responsibility, they will put on those boards persons who will be concerned with their proper administration. If they do not, that will be their lookout and there will be no obligation on the Minister to rectify it, save in the very exceptional circumstance where he might have to exercise his power temporarily to replace the board by a commissioner. If Senator Duffy's amendment is not intended to deal with the circumstances—temporary circumstances, I hope—now existing in the trade union movement, then there is no case for it whatsoever. I should be opposed to the amendment on the ground on which the Senator put it forward—that, apart altogether from that temporary situation, the Minister should have power to nominate two organisations.
Mr. Duffy: The amendment clearly arose out of the situation in Dublin. I am not suggesting that if this amendment is retained in the Bill the Minister is going to go out and select two organisations where there should be only one. The amendment does not impose that obligation upon him. It gives him freedom. That situation will confront him in Dublin, assuming the election to the new harbour authority in Dublin is to take place next October. The Minister must commence, very shortly after this Bill becomes law, to prepare the ground, to get the nominating bodies, to get the register of voters in other industries and so on. He is faced there with the position that there are two organisations in the City of Dublin both of whom will claim  to represent dock workers, although of course there is no reference whatever to dock workers in the Bill. I take it labour interests are not necessarily dockers' interests; that they are labour, in the broad sense, as an element in the community. He is confronted, therefore, with the problem of selecting one organisation and he has to make a choice whether he likes it or not, as the Bill stands, as to the organisation he is going to select. I want him to avoid that. It is probably not the best plan, but it will at least absolve the Minister from having to make a choice where he probably does not wish to make a choice.
Mr. Lemass: The alternative means inevitably one from each; that the Minister must choose one from each.
Mr. Duffy: That would be the alternative. The amendment does not impose the obligation of selecting two. It leaves him free still to select one or two.
Mr. Lemass: I feel like sticking to the Bill and I say one reason for doing so is that this particular amendment was accepted in the Dáil without query from any of the labour interests represented there On that ground it seems all right and I am sticking to it.
Mr. Duffy: May I explain that, because it is unfortunate if the Minister is under a misapprehension. The Minister will recall that in the Dáil in the first instance there were amendments put forward to place the responsibility for making these selections on trades councils. It was to extend to the smaller harbours, as well as the larger harbours. The Minister said at that time that he was prepared to consider an alternative proposal, and on the Report Stage he brought in a proposal to cover the larger harbours, omitting the smaller harbours, because he is taking power to ensure that one of his nominees on the smaller harbours will be representative of labour interests. Deputy Martin O'Sullivan was handling these amendments, and he misunderstood, until he saw the print of the Bill, what the position was. He understood that the same thing was being done in relation to the  labour interests as to the cattle traders, and, actually, it is at Deputy O'Sullivan's request that this amendment is submitted on the Committee Stage to the Seanad.
An Cathaoirleach: Is the amendment being pressed?
Mr. Duffy: I will ask the Minister to consider the matter afresh before the Report Stage. I am prepared to withdraw the amendment.
Mr. Lemass: I am anxious in this matter merely to ensure that we will get proper representation for labour interests without any friction and I hope—it may be wishful thinking—that this problem will not arise. But if it should arise, that there is cause even in these circumstances for deciding which of the existing organisations could be fairly described as most representative of the type of labour it was intended to give representation to here—only both—because it would, I think, not make for the proper working of the harbour authorities and the proper representation of labour interests that there should be two individual representatives who would regard themselves as representing an antagonistic point of view.
Mr. Duffy: That argument has not been used in relation to the cattle traders.
Mr. Lemass: That is a false analogy. The circumstances in which two cattle traders' organisations might be nominated would not be similar to that existing in the Labour movement. It would be where there was a special type of trade development—not disagreement with the other types of trade—but of having a special interest through its own representative.
Mr. Duffy: I will withdraw the amendment but I would like the Minister to reflect on this.
Amendment, by leave, withdrawn.
Mr. Kingsmill Moore: I move amendment No. 5:—
In sub-section (1), page 11, to delete paragraph (g), lines 28-29.
 Amendments Nos. 5, 8, and 11 may clearly be taken together because they are put down in order to call attention to a practice, which seems to me, from the point of view of political theory, to be indefensible and which has had somewhat unfortunate results in practice. The Minister might very reasonably complain that a broad matter, such as this, was more suitable for discussion on the Second Reading than on the Committee Stage. I have, however, a genuine excuse on that, which I think the Minister will probably accept. I had intended so to do, I was ready so to do, but I heard the Minister was anxious to get away early in order to meet a deputation. Therefore, I postponed raising the matter on the Second Reading. Accordingly, I raise it now. This proposed practice of allowing the Minister, in addition to the very wide powers which he has in other portions of the Bill, to which I shall advert in a minute, to appoint a quarter of the harbour authorities as his nominees is no doubt one of the practices of local government which have been taken over in the recommendation to the commission. Indeed the commission did make a special recommendation in respect of the appointment of Ministerial nominees.
While it is a chief recommendation that it has been a practice followed by Local Government I, for one, could have thought of stronger recommendations. No doubt, to some members of the House, there could not be a worse recommendation, because, although I do not anticipate that the Minister would operate these provisions in the same manner in which they have been operated in Local Government, yet there would always be a suspicion of the possibility of such operation. Earlier, to-day, the Minister said that what he was anxious about was not so much abuses, but the possibility of abuses, and the state of uneasiness which would be produced by the existence of such fear. Now, what is the position? The Minister in regard to the harbour board is in a position “only this side of God.” If anybody is entrusted with  making an appointment and fails to do so, the Minister can supply that deficiency. He can direct what is to be the procedure of the harbour authorities. He can and, no doubt, will demand to see the minutes of the harbour authorities. He can issue general orders and directions, and if the harbour authority should prove to be recalcitrant, he can dismiss that harbour authority and put a commissioner in its place.
If those enormous powers of control and interference are given to the Minister, it is most important that he should be put in a position of complete impartiality. It is important that he should hear what is going on at the harbour board only officially through the minutes and that he should speak to the harbour board only officially through his directions. But if he is allowed to nominate a quarter of that harbour board, he has an unofficial mouth, unofficial eyes and ears on the board. What his unofficial mouth says, his official mouth may deny. What his official ear hears, his unofficial ear may be deaf to. That is a condition of affairs which is not likely to promote harmony amongst the members of the board even if, as I will assume to be the case, the Minister appoints his nominees with care and a grave sense of the duty that is imposed on him. There will always be a feeling of suspicion—the phrase occurs to me—“There will be doubt, hesitation, and twilight, never glad confident morning again.”
Assuming the most perfect operation of this power, you have still cast into the harbour board a possible apple of discord. Although I am willing to make every assumption in favour of the Minister and his appointees I have to point out that, in the hands of another person, his power might be abused and the Minister's nominees might occupy the position of agents provocateurs, of spies and talebearers. We have had the example of a board having to pass a resolution against the nominees of a Minister going hot foot from the board to tell to the Department the private communications which had taken place —an accusation which was not denied by these nominees. We had a case in  which very grave suspicions have been aroused that nominees were urged to act as agents provocateurs. I have heard it alleged as late as yesterday that because a Minister's nominee refused to obey the exact dictates of the Minister, because it was against his conscience, he found himself removed by sealed order.
I do not care whether these things are true or not. They are said and, if they are said, it shows the state of suspicion and uneasiness that exists when the person who is supposed to be absolutely impartial in control and to hold the strings evenly, has nominees of his own on the board, especially if, as has so often been the case in the past, these nominees are not marked out by any breadth of vision, special knowledge or business acumen but are remarkable only for aggressiveness and narrowness of party political opinion. I have not got this charge to make against the Minister. The Minister has these powers in a lesser degree already and I have no reason to suppose that the Minister has ever abused them but that is not the question. Are you going to put in a Bill and insist on stereotyping for the future a provision which is almost impossible to justify in theory? It may lead to the most serious abuse. It always creates a position of potential friction, a suspicion that is always lurking in the background, and a kind of fog over the common trust that should exist between the members of the board.
Mr. O'Dea: I could not follow Senator Kingsmill Moore's argument at all. He suggests that because the Minister would have four representatives on the board he would be more likely to abolish that board. I think the contrary is the fact.
Mr. Kingsmill Moore: I never suggested that.
Mr. O'Dea: That is what I gathered. I imagine that the fact that the Minister appoints four representatives on the board would give the Minister every confidence in it. Senator Kingsmill Moore also suggests that because  these members are nominated by the Minister for the time being, every other member of the harbour board would look upon them with such terrible suspicion that discord would be created amongst the members to an extent that it would interfere with the proper working of the board. For the life of me, I cannot see the force of that argument. I know that in our town of Galway, the Minister appointed some representatives under the Galway Harbour Act of 1935, and the exact opposite is the case. The very moment that a vacancy for the chairmanship of the board arose, owing to the death of the late lamented Mr. Corbett, the person appointed chairman of the board was one of the Minister's representatives.
Mr. Kingsmill Moore: Very politic.
Mr. O'Dea: I would say without disparaging any member of the board that the Minister, in appointing that man, appointed the one man in the town of Galway who had the greatest knowledge of harbour business, the greatest knowledge of the law dealing with harbours and who was the most efficient man who could be appointed to the board.
Mr. Kingsmill Moore: Equally politic on the part of the Minister.
Mr. O'Dea: He did not do it for politics. It was for practical reasons.
Mr. Kingsmill Moore: I did not say “politics”. I said “politic”.
Mr. O'Dea: Perfectly right. All the other members of the board appreciated the abilities of that member and showed their appreciation by electing him chairman. Before that they had elected him to the position of vice-chairman. As far as I can see, every member of the board nominated by the Minister has the confidence of the other members of the board. I would say that the vast majority of the other members are not at all in agreement with the Minister's politics, and yet they have appreciated the worth of these nominees, certainly the worth of one of them, because he was the very best man that could be appointed. Unfortunately  that man has been left off when he should have been appointed by other bodies.
The advantage of this section is that it enables the Minister, who is responsible for the working of the harbours, to see that the very best men are selected to run them, and that, if a good man is left off the board he will get representation through nomination by the Minister. I do not think there is anything in the suggestion of Senator Kingsmill Moore that the other members will despise those members who are nominated by the Minister: that they will look upon them with suspicion, and imagine that they are going behind their backs and telling the Minister something that he ought not to be told. In the first place, I do not see what there could be to tell. A harbour board is a public authority. Its proceedings are open to the Press, so that, apart from what is written down in the minutes, the reporters are there to hear and report everything that is said. Any resolutions passed are passed in an open way, and there is no room for secrets. If there are secrets, or if something is done that does not come out in the light of day, well, that is not in the interests of the board. I do not know how many members of a board would lend themselves to a secret organisation of that nature—on behalf of some interest which must be against the interests of the board. A thing would not be kept secret if it were in the interests of the board.
I say, again, that I think Senator Kingsmill Moore's suspicions are entirely unfounded. The other members of the harbour board will not share in those suspicions. I think it is a very good thing that the Minister should have this power to nominate. I do not know if four are too many. The number does not matter very much. The line taken by Senator Kingsmill Moore was that if the Minister has this power to nominate it will cause discord on the board to such an extent that the business will not be properly carried on because of those suspicions. I think the provision is a good one, and will ensure that some members of a locality will be  appointed to a particular harbour board.
Mr. Foran: Like Senator Kingsmill Moore, I have some misgivings on this question of nominated members. I am a victim of the new policy of requiring an assurance and guarantees from a nominated member. Senator Kingsmill Moore is, I am sure, suffering from the effects of that thing in connection with the Cork Street Hospital. I have no objection whatever—in fact I would support the idea—to the Minister making nominations, but what I strongly object to, and will go on objecting to is that, having made these nominations, the Minister should require an assurance from those nominated that they will be good little boys and only do as they are told. I think that, with the present Minister, that is not likely to happen, but I can see the danger of giving that power to any Minister. We see what is happening in other Departments and, consequently, we are suspicious. I see no way of getting over it.
I must say that, so far as the present Minister is concerned, I am very well satisfied that he will make the best possible selection, and will give to these boards, in accordance with the terms of this Bill, the utmost power and authority to transact their business in an independent way. I could hardly imagine the Minister for Industry and Commerce taking a person who had given nine years' faithful service, and at the end of the term asking him to give an assurance about his good conduct in the future. I say that that attitude causes grave suspicion. I sincerely hope that the independent minds and the independent actions of nominated members will be set at rest. I think credit is due to Senator Kingsmill Moore for calling attention to this matter, even though he has been personally hurt through it. I am taking advantage of it to exploit the injury which I suffered.
The fact remains that this power can be abused and is being abused in another Department of Government. I said before, and I repeat now, that I  have no fears so far as the present Minister is concerned. He is too big a man and too able a man to shut out from public representation an independent and free-minded person. If this attitude that I speak of is persisted in in other Departments, then men and women with independent minds, free men and free women, will not give their services and their abilities to the administrative work attached to public boards in this country. Having said that, I want to add that I am not going to support Senator Kingsmill Moore's amendment. I think that the Senator has done a service in the Seanad by calling attention to this. I have no fear that the thing will be abused while the Minister for Industry and Commerce is there, and, consequently, I am not going to vote for the amendment.
Mr. Patrick O'Reilly: I agree to a great extent with what Senator O'Dea has said, because I could not understand how people appointed as members of a harbour board or on any local authority would ever mortgage their minds to any Minister. They would not be worthy of being appointed to any responsible position if they had so little respect for themselves as to mortgage their minds to a Minister or to a Department. The fact, however, that such a suggestion can be made shows that there is uneasiness in the public mind. If such a thing is happening, then some steps should be taken to prevent it. Speaking for myself, I really cannot believe that it is a fact, and for that reason I agree with Senator O'Dea that people appointed by the Minister to act as members of the Galway Harbour Board would conscientiously discharge their responsibilities by co-operating with the other members of the board.
What I feel bound to draw attention to is this: that I would like to know how Ministers make up their minds. Senators may laugh, but a thing that has often annoyed me is this—it does not concern the Minister for Industry and Commerce—how, for example, the Minister for Justice makes up his mind before he interns a person. Is his mind made up for him by a policeman down the country? Let us assume that the person interned has been living in  Leitrim, or in Cavan, or in some other county. Since the Minister for Industry and Commerce has not the police to advise him in these matters, he must have some other way of making up his mind as to whether he shall appoint this or that person on a board. I am prepared to agree that the Minister, through the various channels at his disposal for getting information, would make all reasonable inquiries in his anxiety to get the best possible people appointed on these boards. Still, since there is some uneasiness on this matter, I think some attempt should be made to get around it in another way. I agree with Senator O'Dea that one could not believe that people appointed by the Minister to act on these boards would mortgage their minds to him.
Mr. Lemass: The tribunal recommended that the harbour boards should contain a number of members nominated by the Minister, and they set out very clearly the reasons why they made that recommendation. They said:—
“There are, we believe, in every area men of experience—public, professional, commercial—who would be ready at the request of the Government to place their services at the public disposal as members of bodies such as harbour authorities, but who will not allow their names to go forward at a contested election, or to be the subjects of canvass and criticism by corporations, chambers of commerce or similar bodies. The Minister's nominees might, we suggest, be chosen with great advantage from men of this type, and, in addition, from amongst selected representatives of any interest, commerce, labour, shipping, agriculture, or the like, which, in his opinion, should be, but was not already adequately represented on the board.”
I am sure that most Senators will be able, each in his own district, to name people to whom that description would apply: people who would make worthy members of a business body or business board such as a harbour board must be, but who would not ordinarily be prepared to push themselves forward for that position and take the  chance of defeat in an election or the chance of adverse criticism in debate which might arise when election to a chamber of commerce or similar body would be involved. Similarly, we must bear in mind the way in which the election would take place. It is proposed to give to various bodies the right of nomination, and I am sure that it is quite obvious that there is a risk in that case of a person not securing nomination at all, and the more obvious the nomination, the greater the risk. The harbour authority will say that such-and-such a person is obvious for nomination and they will leave it to the chamber of commerce to nominate him, and will say: “We will nominate another person,” whereas the chamber of commerce might say that the other person was so obvious for nomination that they would leave it to the harbour authority to nominate him and nominate another candidate for themselves. In fact, that has happened, and it has been largely a question of putting the obvious person on the harbour authority. There have been cases where chambers of commerce did not put on a harbour board the only shipping company using that harbour. There have been cases where the only persons using the facilities of the harbour were not put on the board. It may be that these people said: “Well, if we do not do it, the Minister will have to do it,” but in such cases the reasons for which the Minister put people on the board were always clearly indicated.
I want to make it clear that the nominees of the Minister will not be in any relation to the other people. If the Minister wants to have information from spies, informers, and so on, I am quite sure that he will not require to have his own nominees on such a body. I cannot see the circumstances arising in relation to these harbour authorities where that will be necessary, and I certainly do not propose to proceed in that way. It is necessary, in that regard, to keep in mind the fundamental difference between a harbour authority and any other local authority that may be discussed.
I mentioned that before. The board  of governors of a hospital, or the members of any other type of body, local government or otherwise, must stay in business. If a local government body is extravagant, then, of course, the rates will rise and the ratepayers will have to pay for the increase, but that body cannot go out of business, and the ratepayers will have to suffer the effects of bad administration as well as of good administration. A harbour authority, however, can go out of business. It is engaged in intensive and highly skilled competition with other bodies, and if trade is bad in one place, these people will go to other ports on the coast. That has happened in the past. Harbours which formerly had no trade have been built up into harbours with a very good trade. These people know that they are a business concern and that if they can get trade into their harbour they must provide proper facilities and service, and it is always that mentality that they bring to bear on the problems that arise. Sometimes, however, a harbour authority gives up the ghost, because its trade is going down, business is going down, and then the members cease to attend. In such a case it is obviously the business of someone to make them do their duty and, in many cases, the only people to get the members of the harbour authorities to do their duty are those appointed by the Minister. In some cases they will have to give the authority of the harbour board over to the county council, or if it is merely a case of temporary maladministration of its affairs, they may put in an administrator to put things right; but in ordinary cases, where you have a harbour with a growing trade, there is not much difficulty in keeping the members of the harbour board attending to their duty, because most of them are representatives of commercial interests and are therefore vitally interested in the maintenance of the harbour and in the use of the facilities available to them.
I do not think, therefore, that there need be any apprehension of the powers of nomination given to the Minister here being abused. The power that is taken here is taken expressly in order to give representation to people who  should be given representation on such bodies, as they have a particular interest in harbour boards, but who might not get it. In the case of some harbours, they may also need to give representation to districts adjacent to the harbour town, which might not get representation to districts adjacent to the harbour town, which might not get representation through the local nominating bodies. In the case of Dublin, for instance, there are districts in or near the city to which it might be advisable to give representation, and the same applies in the case of Cork, the harbour for which is Cobh. We have made provision for the case of Cobh, but there may be business interests which are geographically removed from Dublin or Cork and which are not likely to get representation on the harbour board from the Dublin Chamber of Commerce or other nominating body, and it is for that reason that the Minister is given this power of nomination. I think it would be a mistake not to give him that power. The proposal of the tribunal which we are adopting is that the Minister should wait until all the other bodies have completed their nominations, should note the composition of the board as emerging from these activities, and then complete it as a proper body and enable it to proceed with the proper administration of the harbour.
Mr. Sweetman: I have really been drawn into this by two remarks which have already been made. First of all, so far as Senator O'Dea and Senator O'Reilly are concerned, I really think that their outlook, as they expressed it, is a little naïve. Anyone who has read—I presume they have not read it —the full minute of the proceedings of the Cork Street Inquiry would know the reason why the amendment was put down. Senator Kingsmill Moore knows it, but I do not propose to go into that at once, beyond saying that that inquiry was dealing with an infectious and contagious hospital and I hope that the contagion of that disease does not spread itself over to the headquarters of the Department of Industry and Commerce.
I leave that, in passing, however. I am really drawn into the debate by the  quotation which the Minister has taken from the report of the Harbours Tribunal that one of the aims of this power of nomination is to ensure that people will be put on a harbour authority who will not stand the test of election. I think it is one of the greatest mistakes that exists in our public life at the present time, that that type of attitude is pandered to and supported in any shape or form.
I think that public authorities, whether they are county councils, urban councils or town commissioners, or the Dáil or the Seanad, will only be thoroughly representative of Irish life when we get away from the idea that there is something disgraceful or reprehensible in standing for public election at any time. If we do not get down to bedrock and accept it that the man who stands his election and gets through is a much better man than the man who has not to stand for election, then we will make very little progress. We should have no room for the man who is afraid to fight.
Mr. Kingsmill Moore: When the Minister was reading out his picture of the immaculate recluse, too proud or too timid to stand for election, to face his fellow-men, a voice seemed to come down to me through the arches of the years:
“I cannot praise a fugitive and cloistered virtue, unexercised and unbreathed, that never sallies out and seeks her adversary but slinks out of the race where that immortal garland is to be run for not without dust and heat.”
The men we want are the men who will openly state their opinions and who will openly put themselves before their fellow-men.
One of the suggestions which we heard made came from Senator Louis O'Dea. It was that one of the things almost completely forgotten was that the proceedings of harbour boards are quite frequently attended by the Press. In so far as harbour boards are concerned, I agree that that does take away a good deal of the force of the argument I have put forward, but it does not altogether take away the feeling which undoubtedly does exist  of a slight suspicion. I am not going to labour that point. I am quite confident that the Minister is not going to abuse his powers under the Bill. I am impressed by the Minister's arguments in support of his suggestion that there may be one person or another who has been left out of a harbour board and who should be on it. I think the Minister has made a case for the appointment of one or two such people but we have had some experience in a recent inquiry.
Professor Magennis: What does that mean? Fever, again?
Mr. Sweetman: If you ask the Minister, the Minister will be able to explain.
Mr. Kingsmill Moore: There are a lot of instances I could quote, but I am not going to do it to-night. What I urge is that when the Minister nominates his representative, his representative should be permitted to exercise his judgment without any interference. I think that a case has been made out for a limited amount of nomination, provided there are safeguards. The Minister knows that there should be safeguards. My amendment is designed to secure that there will be safeguards, and perhaps the Minister will consider these provisions. As I have said, I do not anticipate any abuses but, having asked the Minister to consider my amendment, I propose with the leave of the House to withdraw it.
Amendment, by leave, withdrawn.
Mr. Baxter: I move amendment No. 6:—
In sub-section (1), after the word “members” in paragraph (g), line 28, page 11, to insert the words “one of whom shall be deemed to be representative of co-operative trading societies”.
On the Second Reading I raised this question in relation to the power of the Minister to make nominations. Now that the House has agreed to leave him  the power, I hope he will consent to use it in a particular way in relation to one of his nominees. My amendment seeks to insert that one of the Minister's nominees shall be deemed to be representative of co-operative or trading societies. The Minister has advanced one or two reasons why one such person should not be numbered among his nominees. He has indicated that the harbours commission has recommended that this power should be given because it was possible that certain interests might not be adequately represented on the board, and he went further to indicate that there might, in certain circumstances, be business interests geographically removed from the harbour, but possessing strong interests in the trade of the harbour, who should have representation.
That is exactly the situation anticipated in my amendment, the situation for which I am asking the Minister to make provision. The Minister in dealing with this matter said that he was concerned with getting people who were competent and efficient from the point of view of administration to help with the business of the harbour board. Naturally, I do not want to hinder him in that respect, but I hope that the Minister is not going to suggest that it is not possible to get people eminently efficient from co-operative trading interests. I am sure that his Department has had considerable experience of the capacity of these gentlemen and that he can be quite satisfied that he will find among them persons who are very efficient indeed.
In this country, the turnover of our co-operative societies is something in the region of £9,000,000 or £10,000,000. I agree that a great deal of it is internal, but a considerable proportion is represented by export and import trade. Some years ago, the exports were considerably greater than they are to-day, but, very probably, when the emergency passes, we will see normal trading conditions restored and a number of co-operative organisations have built themselves up to conditions when, probably, their foreign trade and purchases will assume proportions which they did not reach in the past.
 The Minister is well aware that certain trading interests in some of our cities and the co-operative efforts of our farmers are very divergent. We have definite evidence of antipathy on the part of some members of the trading community to the trading efforts of the co-operative societies. Let us suppose that a number of co-operative societies get together and determine to take in a couple of shiploads of artificial manures from the Continent, or agricultural machinery from Canada. If they banded themselves together to distribute those goods over the southern counties, I wonder what the attitude of some of the business interests on the Cork Harbour Board would be to a request for such facilities as might be required by those people for their legitimate trade. Suppose, on the other hand, they wanted accommodation on the quayside for goods to be shipped out of the country, goods which traders felt should pass through their hands, what would be the response? Senator Counihan has left. Suppose two or three big co-operative societies decided to open up a trade in the export of store cattle and got farmers to send on their store cattle to the creamery farm; suppose Mitchelstown or Dungarvan Co-operative Society, who are doing real business, made arrangements with the carrying companies to transport the cattle by special train or boat, I wonder what sort of facilities would be provided for them by trading interests on whose corns they were going to tread by entering a field which those traders regarded as legitimately their own. A series of considerations such as those must arise and, if our producer-trading organisations are to be shut out, as they are in the Bill as constructed, from all active participation in the business of a harbour board, then the Minister will handicap the efforts of producers in a way which is hardly fair. I think that I am entitled to ask the Minister to make that concession in the interests of producers. While I use the word “concession”, I regard it as a right. The Minister has indicated that one of these nominees is to be a representative of labour. Already there are two representatives of labour.  That is a very strange condition of things——
Mr. Lemass: That is not in the Bill.
Mr. Baxter: Did the Minister say that he was going to do it?
Mr. Lemass: No.
Mr. Baxter: I thought he said that.
Mr. Lemass: Not in relation to the major ports.
Mr. Baxter: I am sorry. It seems strange that, in a country so predominantly agricultural, we cannot say that there is a single representative on one of the harbour authorities who can really speak for the producers. That is not a situation which we can regard as satisfactory. It cannot be argued that they have not an interest. Neither can it be argued that nobody can be found amongst the co-operative trading societies suitable for selection. The Minister knows that there are efficient people connected with those societies. In the big cheese-making creameries and in the Waterford dead-meat undertaking there is ample material on which to draw. I urge the House to accept this amendment.
Mr. Foran: I have no objection whatever to having a representative of the co-operative interests on the board, but I advise the Minister, if he proposes to have representation of that interest, to arrange for certain safeguards. Senator Baxter reminded me of this matter when he spoke about live-stock exporters as a trading community. The live-stock exporters came into conflict with a foreign, cross-Channel carrying company and established an undertaking of their own. When that company offered them directorships and liberal compensation they accepted the offer and sold out. If the Minister had a representative of that trading community, he would be only adding another to the representation of cross-channel interests. If the Minister gives representation to co-operative enterprise, it will not be all plain sailing. He must have definite safeguards and it must not be a repetition of what happened in the case of the live-stock exporters.
Mr. Baxter: I was not speaking of the cattle trade.
Mr. Foran: The Senator referred to the live-stock exporters, and I merely wanted to point out that the Minister will have a tough job if he provides representation for co-operative interests. He will require to have safeguards.
Mr. P.J. O'Reilly: I agree entirely with the principle of Senator Baxter's amendment. As I said on an amendment by Senator Counihan on the same lines, the cattle traders' association are really traders and could not be regarded as representing producers. If any organisation represents the producer, it is the co-operative society. If that society is not representative of the producers, then the fault lies with the members. Senator Foran suggested that there was danger of co-operative societies selling out their interest in some way. He cited an example but I am not very clear as to the example he cited. If that did happen in one instance,  it would be as easy for it to happen in any other organisation as in a co-operative society. I do not see why there should be a barrier to, or a check on, the representation of the producer by means of the co-operative society if there is no such check on any other organisation. Since the Minister for Agriculture will determine the issue so far as the live-stock traders are concerned and since Senator Counihan has withdrawn his amendment, I think that Senator Baxter should withdraw this amendment. However, I thoroughly agree with the principle of Senator Baxter's amendment.
Professor Johnston: I should like to go on record as supporting Senator Baxter's amendment, although no time is available to speak to it.
Progress reported; Committee to sit again to-morrow.
The Seanad adjourned at 10 p.m. until 3 p.m. on Thursday, 14th March, 1946.