Wednesday, 4 January 1961
Seanad Eireann Debate
Professor Quinlan: I should like to make a general observation. There are many references back to the Dairy Produce Act, 1924. Would it be possible, when pending legislation is circulated, to circulate with it copies of the relevant Acts to which references back are made? That would make it much easier to examine pending legislation to see how it modifies or amends earlier legislation. I am not specifically referring to this Bill; I am making a general point.
Seán Ó Donnabháin: In the definition of milk, I was wondering would it be advisable to include frozen milk? Could we also include ice cream because ice cream is produced from powdered milk? Frozen milk and ice cream are milk products.
I had better deal with the overall consideration first. It is one which has agitated the minds of many of us recently. I refer to the question of control by State and semi-State bodies and their answerability to Parliament. We have protested many times against  the type of legislation which leads to government by order or government by regulation as circumventing Parliament and being intrinsically bad. However, it has to be resorted to in many cases, and we have the ultimate safeguard that either orders or regulations must be laid on the Table of both Houses. Consequently, a motion must be moved for their annulment and thereby a debate can be initiated on the contents of the order. Now we meet here another type of legislation, that is, legislating by writing or in writing. This is completely outside Parliamentary control.
We read in the report of the Committee Stage debate in the Dáil the concern there about the answerability of the Minister for this new Board to the Houses of the Oireachtas. I must say the whole debate was exceedingly unsatisfactory. It wound up with the statement that unless the Minister could be made answerable under Section 63, which lays down that each order and regulation must be laid before each House of the Oireachtas, the Minister can tell the questioner he has no function in the matter, that the whole thing is in accordance with the Act as passed by us here. Consequently, we are in the unhappy position in which we find ourselves today in connection with the Transport Bill and how it has been enacted.
I propose here in the amendments listed that the specification in writing should be replaced by regulations, thereby bringing the regulation or direction concerned to the notice of both Houses and enabling questions to be asked on this matter. The first amendment deals with Section 5, subsection (1) (a) which says that the Minister shall instruct the Board in writing as to the exportation of milk products and, if he wishes, he may designate the countries to which these exports have to be consigned. I cannot see what is so secretive about that operation that it cannot lie on the Table of the House. In fact, the Minister can make regulations under this saying that henceforward all chocolate crumb must be exported through the Board. He has indicated his intention of making a direction in writing under this that  butter, milk powder and whole cream shall be subject to this.
I know there is very great concern among Irish Cream Exporters Limited about the fact that they are being superseded and that the Minister has indicated in his Second Reading speech here that he will, in writing, order the new Board to take over the export of cream. That illustrates the case in point. If that is to be done, I can see no reason why an opportunity cannot be provided for the House to discuss that action. In the same way, if the Minister discontinued this in a year's time and handed back this function to the cream exporters, I do not see why that action should be secretive and why it should not be tabled in the House. That deals with amendment No. 1 and as amendment No. 2 is to the same section, I need not worry about it.
The next amendment deals with subsection (2) which provides that the Board may engage in the business of wholesale and retail dealing in milk and milk products within the State, simply with the consent, in writing, of the Minister, or until such time as the consent is withdrawn by the Minister. That marks a radical departure from accepted practice. We are setting up a semi-State Board here and now, apparently, they can engage in retail trade within the State.
Professor Quinlan: I was proceeding to discuss amendment No. 4, and got on to amendment No. 3 by mistake. Again, it seems that this is a new departure because any efforts by the new Board to engage in retail dealing in milk and milk products should be the subject of very careful scrutiny, and should be subject to the approval of  the House, or at least to the modified type of safeguard that would be provided by having the direction made by regulation. In the case of many other State bodies—I might cite the E.S.B. as one—there is great dissatisfaction and we all know the difficulty of raising problems in relation to them in the House. I want to know, particularly in this case, will the Minister be answerable to the Dáil for any consent he may give in writing to Bord Bainne to engage in this business under Section 5, subsection (2) (b)?
I now move on to amendments Nos. 41 and 42 to Sections 37 and 38. Section 37 deals with butter levies and provides that the Minister may direct the Board, in writing, to make a levy and that direction may include a direction specifying the rate or rates of the levy. The question arises as to whether such action comes within the control of Parliament. In other words, the Minister gives a direction in writing and the Board makes an order consequent on that direction. It was not clear from reading the Dáil Debates whether orders made by the Board come under Section 63 of the Bill. I should be inclined to believe that this type of provision, which is included in many Acts setting up semi-State bodies, relates specifically only to orders and regulations made by the Government. I doubt if it could be stretched to include orders made by the Board concerned, as envisaged in Section 37.
Section 38 has the same type of provision except that it deals with butter stocks levies. Again the Minister gives his instructions in writing, based upon which the Board make an order. I do not wish to take up the time of the House unduly; I am trying to be as brief as I can in presenting this general case. Perhaps the Minister will be able to clarify the points raised.
Mr. Donegan: My view of Senator Quinlan's amendments is that his anxiety is very proper, and his principle a very proper one. The only feeling I have about them is that perhaps in the ordinary day-to-day mechanics of running these matters, these amendments,  in fact, might create intolerable conditions. If our agricultural industry is to receive the attention it should receive from the Minister for Agriculture and the Board, I could visualise constant communications between them. In such a situation, it might be quite intolerable that everything that passed between them, as is asked for in these amendments, should be tabled. Such an overflow of information would be tabled that it might be quite difficult to glean therefrom any real and relevant information.
There are two types of information. One is the main type of information such as how much is the levy. My view about that point would be that just as the levy on wheat is published the levy on milk would be published and the butter levy would be published and would be a matter for discussion and the keenest interest among agriculturists, creamery managers, and so on.
The smaller items of interest are really those about which politicians become exceedingly hot under the collar. I am one of those politicians who does, too. It is most irritating when the Minister in the Dáil tells a Deputy that unfortunately the information requested relates to a State-sponsored or public company and therefore he will not give the information.
Having looked through these amendments in a very close and detailed way it appears to me as if the main items of information required will be available and if this Bill goes through and this Board is set up, whether or not in all its facets, it would be intolerable to ask that all small items of information be tabled.
I have every sympathy with the feeling behind these amendments but they just are not entirely practicable. It might perhaps have been better if we had discussed them individually. As a general body of amendments, they would embrace a wide scope and leave the Minister with a constant flow of information, some of which would not be of great value, to be tabled. As we go through them, we can look at them individually but I  am not in general agreement with them all.
Mr. Smith: I have listened to contributions in the Dáil more or less along the lines of those of the Senators who have spoken. I think I have made this statement before on this Bill. There is an attitude behind these amendments which I find it very difficult to understand. Either we do or do not want to set up a board to look after certain business. When we make the decision to do this, we must have in our mind the fact that they should have reasonable freedom—freedom even from intervention by a Minister.
Reference has been made to the activities of other semi-State bodies and boards to prove the case that they should not be given the powers that most people apparently agree are necessary if a board is to function properly. You always hear the case cited of the particular board that has perhaps the most difficult task on its hands. You never hear of Bord na Móna, for example. You never hear of many other boards that have been set up here by different Governments. Here is a list—the E.S.B.; An Foras Talúntas; An Bord Iascaigh Mhara; Fógra Fáilte; Bord na Móna; An Bord Gráin; Bord na gCon; Córas Tráchtála; the Agricultural Wages Board; C.I.E.; the Cork and Dublin Milk Boards; Radio Éireann.
In all this discussion I noticed that it was the Board of C.I.E. that came under most fire. The most obvious explanation for that, I am sure, is that the task given to that Board at this particular time is a tremendously difficult one. We never hear a word about the boards that have been set up to deal with all these other matters and that have been successful. Yet they were set up on exactly the same basis.
I know some of the things that these boards can do and say. I know some of the ways in which they can act. They can irritate all of us from time to time. If we are setting up a board we must give it reasonable powers to carry out the business assigned to it. I said somewhere else that, in taking this action, we cannot as it were have our cake and eat it. I do not see what  purpose these amendments, if accepted, would serve—Nos. 1, 2, 3, 4 and 5.
Mr. Smith: Nos. 1, 2, 4 and 5. In order to give a Minister some control over the over-all activities of a body like this, I am supposed to write to the Board to give them authority to explore in certain fields. The Senator who tabled these amendments suggests I should do that by regulation. He must also suggest that if I am to do that by regulation then, if I am limiting that field and taking that liberty from them, I must also do that by regulation.
The Senator who has tabled these amendments realises I am sure that the making, drafting and preparation of regulations can be very cumbersome. It can be a very slow process. He is asking the Minister to adopt this cumbersome, slow process in relation to matters that should be handled as quickly at times as possible. I see no merit in that. If the intention of the Senator is that I am to do that in order to give the Houses of the Oireachtas an opportunity of discussing these tabled documents then we can think with pleasure of all the discussion you like but we can lose the fruits in the effort. I am not inclined to sacrifice the fruits for the satisfaction of a discussion on matters that should be dealt with and I hope will be dealt with promptly.
As regards amendments Nos. 34, 41 and 42, after I have written to the Board, the Board will be required to make orders. Although the Senator claims that I did not make the point clear in the other House—I am speaking now only from recollection—I think I said there that these orders, when made as a result of my corresponding with the Board, will be tabled in the ordinary way. If you look at what these amendments are designed to secure, I think the House will have to agree that they are not really required in many cases, even the last cases I cited, to serve the purpose the Senator has in mind. In the case of the other amendments, as Senator Donegan stated, they would serve only to  clutter up the machine and, in fact, make it impossible to carry out the functions of this Board in the way we hope these functions will be performed.
Professor Quinlan: In regard to amendments Nos. 41 and 42, the Minister has made it quite clear that orders made by the new Board will lie on the Table of the House and consequently are covered by Section 63 of the Bill. I cannot see that the items mentioned are in any way day-to-day items because we note in Section 2 that the Minister has to make a regulation to state that a substance is a milk product. If new products come in and new regulations have to be made declaring these to be milk products within the meaning of the Act, that will happen very infrequently. Telling the Board, as envisaged in Section 5, that henceforward they shall be the sole exporters of full cream or henceforward they shall be the sole exporters of chocolate crumb to the British market is an event that will occur just as rarely as declaring a new product to be a milk product within the meaning of the Act. If the Minister can make an order under Section 5 in writing he can assign the Board to export a certain commodity. In the same way, I take it, he can withdraw that directive. These are not day-to-day activities. They seem to me to be major policy decisions. Surely these are every bit as important as making what is in effect a regulation saying that henceforward flavoured milk shall be construed as a milk product which requires a regulation?
There is one other point. The question is rather doubtful in this Bill about the position of retail trading in milk and milk products. That is something that any of us here does not want the Board to engage in — competition with existing retailers. First of all, permission is given under Section 32, with which we shall deal later, in regard to the Board buying buildings and equipment for this business. The Minister stated in the Dáil that it was only just the way the section was drafted. In effect, it was not intended that the Board should engage in those activities. Yet under subsection (2) of Section 5 it seems that the Board can engage in retail dealing in milk and  milk products within the State merely by the consent of the Minister. The first time that happens——
Professor Quinlan: I shall confine myself strictly to amendment No. 1. Would the Minister, first of all, agree that any direction given under this would be of relatively infrequent occurrence? In other words, this section will have to be used to assign to the Board, say, the export of full cream. It would also have to be  used if it were decided that henceforward chocolate crumb should be exported to Britain through the Board. These are, to my mind anyway, events equal in importance to making a regulation that such a product is a milk product within the meaning of the Act. That is what is called for under Section 2 of the Bill. I cannot see any real difference.
Mr. Donegan: In regard to the statement that the Board should operate free of interference, even from the Minister, I want to refer to Section 22, subsections (2) and (3) where the Minister takes absolute power to interfere in every way he thinks fit with the Board.
Mr. Murphy: I quite agree with the Minister that, when we set up a semi-State organisation, we should give it a certain amount of freedom and that it would be quite intolerable that a Minister should be subject to questions about the day-to-day operations of a semi-State organisation. The Houses of the Oireachtas, as I see it, always had the opportunity of debating the general policy of any semi-State organisations when the matter is tabled in the Houses.
I think there is some difference here. When we are generally setting up semi-State organisations, we set out their general duties and responsibilities. Through the Bill we have provisions for the Minister giving directions to this semi-State organisation in writing. I think at that stage the Minister is performing a function as a Minister of State. If he is doing that, I think that in those circumstances he would be subject to a question in the Dáil for example. He would be accountable for any directions he might make in writing.
Am I correct in assuming that that would be the situation, that the Minister, when he takes power here to direct Bord Bainne to do or not to do certain things in writing, will have to account for these directions to the Dáil? If not, it is in a rather different position from that of the other semi-State organisations to which he referred. They are undertakings we set up with their general duties and responsibilities laid down by an Act of the Oireachtas and  they carry out their duties and responsibilities, but in none of those Acts will you find provision for directions in writing by the appropriate Minister. If there are such provisions, I think they are very rare indeed, but all through this Act, there is this provision, that the Minister may direct the Board to do or not to do certain things, as long as he does so in writing. It seems to me that if the Minister is asking for that power, he will be answerable to the Dáil for the exercise of these functions. I do not know whether that is correct or not.
Mr. Smith: The problems with which this Board will have to deal are entirely different from the problems facing some other semi-State authority. For example, I have in my speeches on this measure indicated the milk products, the export of which the Board will look after. I have indicated, as well, the products for which they will not have any export responsibility. Now, as Minister, I have policy reasons for that. When this Board is set up, naturally I must write to them and say: “As far as chocolate crumb is concerned you will have no responsibility for the British and Northern Ireland markets, but you will have responsibility for the world outside.”
Take the matter of cheese. I have mentioned that the export of cheese would be the concern of this Board, with one exception which I had in mind. To-morrow or the next day, I might have another one in mind. The one I had in mind was the concern that is about to establish itself here and which has a world organisation which will be much more competent than any board we could set up. Take some other similar concern such as Bordens. They have a world organisation and I am taking powers here to enable the Minister to direct, when he is satisfied, that such an organisation or such organisations should be permitted to do their own business. You can go on down the line. Some new  product might appear and if some big organisation were to come along, they might well say: “Well, we would be anxious to engage in this particular line of business but we would like to be free to look after the product when it is prepared for marketing.” Surely as a matter of policy, the Minister would want to have the power to give directions such as these?
I could, as a I say, go on citing a number of cases to show that a Minister will say in writing to the Board: “Here is the position in relation to such and such a matter. Here is the field in which you will engage; here are the limitations.” Perhaps something would happen and some time the Board might say: “We think this direction which we had from the Minister should be withdrawn.” Of course they can approach a Minister if such a situation should develop and just as he gave the direction limiting them, so too, can he withdraw it.
I do not at all compare that with the case cited by Senator Quinlan when he talked about some new product. That might happen once in a blue moon. In the other case, naturally, I cannot say how often it might happen, but you can see that this is a field in which there might be a necessity to change suddenly and after you had given a direction that such and such a field was to be explored by the Board you might decide that the instruction should be withdrawn. The Senator asked me would I not be responsible. Of course, I will be responsible. That is our policy because——
Mr. Smith: That is a different proposition altogether. Take the case of this firm Eidelweiss which is to manufacture cheese. Suppose I were to refuse them permission to do this and were to write to the Board and say: “You are to take over this business,” or suppose a proposal were made to set up Bordens under that condition and I said: “You will not get away with that. You will just park in with the rest of the Board and look after your business.” They would walk to the rack, take their hats and coats and  say “Good evening.” Do you think that I would not have to answer for that? Of course I would. Why should the Minister not have the liberty that is here? These are policy matters but when I talk about giving the Board freedom, I mean freedom to operate in the field that we will determine for them and the framework of which we will determine for them when this measure passes through the Seanad.
Mr. Donegan: I feel that Senator Murphy did not appreciate the situation which, as I see it, is that the Minister holds complete responsibility for the dairy industry. The Minister is entirely responsible for it and politically one of the main criticisms is that the Minister may be in a position to foist the bad news off on the Board and take unto himself the good news. It is quite obvious, from Section 32 particularly, that the Minister is entirely responsible for the price of dairy milk and for all the other main price fixings and facets of dairy industry, while, at the same time, leaving the Board to do their best to sell the goods abroad.
Mr. O'Reilly: I do not want to appear harsh towards Senator Donegan but I am inclined to argue that it is that mentality on all sides of the House and on all sides of the Dáil that has bedevilled this problem of agricultural marketing for a very long time, that we are inclined to mix it with politics.
Mr. O'Reilly: The fact is that we want a job done by the Board in the marketing of dairy produce because there is no other machinery for doing it in our opinion. I am sure the Minister and Senator Donegan will readily agree that it would have been much better if there had been a  federation or co-operation between the co-operative societies to do this job of work. It would not then have been necessary to introduce legislation such as this. It is regrettable that that has not happened. It is further regrettable, as I said on Second Reading, that instead of having that federation or co-operation to achieve this purpose, in the late 1930's there was the very opposite of co-operation between the co-operative societies.
Professor Quinlan: The Minister in his reply has gone a long way to allay our fears but our fears were not in relation to interference with the day-to-day affairs of this company. We do not wish to interfere with the day-to-day affairs of the company. We were concerned with Ministerial control of this company which is provided by those clauses and we want to know whether that Ministerial control is subject to Parliamentary control.
Professor Quinlan: The Minister can completely clarify the situation for us if he can answer this question. If the Minister gives a direction in writing under this Bill in the morning, for instance, suppose he says that whole cream shall henceforward be exported by the company and then, in a year's time, he issues a direction in writing to the company to cease exporting whole cream and to let the cream exporters  do it, when will the Houses of the Oireachtas be aware of that and when will the Minister be answerable to Parliament? If a question is put down in the Dáil to ask whether the Minister will state his reasons for terminating the export of full cream through this company and transferring it to this other company, will the Minister answer such a question in the Dáil?
Mr. Burke: I should like to give the Minister as wide powers as possible under this Bill. The thing that surprises me is that there are so many restrictive clauses in the Bill. Years ago butter was sold here by proprietary creameries and co-operative creameries and the co-operative creameries were often able to get a better price than the proprietary creameries. In Denmark and Holland they do not suppress or make a monopoly out of the co-operative movement, in the same way as is done here. I have the authority of some of the leading people in the co-operative movement in Holland and Denmark for that statement. I do not want to restrict the Minister. The Minister is claiming in this House that he does not want to be restricted, that he wants to have as wide powers as possible to intervene if necessary in the interests of the whole industry. It is the Minister's responsibility and I feel that we ought not to restrict the Minister if he finds that it is in the interests of the industry to allow greater freedom and greater variety. The more ways we have of selling milk and milk products the better, and I would hate to think that we would approach this Bill in a doctrinaire way and restrict the Minister in his functions and responsibilities.
Mr. Smith: One of the things that I object to, either in this Assembly or outside it, is, in a general way, to being pinned down to give an answer “yes” or “no” as to whether I would be responsible for this, that or the other thing. If I could be sure that I could list all the matters that could arise I would have no hesitation in indicating those for which I would be answerable and those for which I would not be responsible, in the sense of giving information that might be sought at any time.
What I have said in a general way is that, with the authority and agreement of the Government, the Minister for Agriculture is responsible for the price of butter; he is responsible for the retail price of butter; the price fixed by the Government will determine the price of the milk.
The accusation has been made that this Board was being set us so as to relieve me or my successor of the onus and the problems that concern Ministers who have to defend Government policy. The facts are as I have stated, that we are still responsible for those matters which I have cited, which are very vital to the producers, and this Board is being set up to cater more effectively and more efficiently for whatever surplus we have for export.
I am taking here certain powers to give certain directions as to the limitations that from time to time will be imposed, the markets, the fields they will cover, when they will start to operate in a particular place, when they will cease to operate in such a place. These are policy matters and for these I willingly accept full responsibility. I do not mind if I am challenged on these matters at every corner. But, when you give an assurance of that kind, if something arises that is not closely associated with policy problems, you will be accused, as other Ministers have been, of giving assurances that you have not honoured, perhaps for the purpose of getting a convenient passage for a Bill or section of a Bill. I shall not do that but I am saying what I have said repeatedly, that in regard to these wider policy matters, it is not a question of my saying here that I will take responsibility; I must take responsibility.
Mr. Donegan: Taking responsibility is one thing but I can understand the anxiety of the Seanad. You must remember the example of the Milk Costings Commission. Nobody could get any information as to the costings of milk for a period of years.
Mr. Donegan: The Minister did, but at what stage? He must remember this anxiety. While I do believe that the wide variety of amendments, taking in regulations, would not be practicable, at the same time it is necessary to have some safeguard with regard to the availability of information.
Professor Quinlan: In scrutinising this Bill we are first of all scrutinising the provisions before us, by which the day-to-day activities of this new Board will be governed. Having passed those provisions, we are then subject to being given the usual reply to questions that the Board has acted in conformity with the sections contained in the Act. In addition, we must scrutinise the powers that the Minister is retaining for himself. We are as much concerned with Ministerial control over this new Board as we are with avoiding undue interference in its day-to-day activities. We must balance the two and that is our function here as a legislative assembly. I am not yet fully satisfied that the Minister has answered what was a simple question. The Minister says he will be responsible when the price review comes round. That is about once a year but maybe the tracks will be torn up before the Minister gives an answer to the question.
Supposing—I return to this again— having decided this time that whole cream was to be exported through An Bord Bainne the Minister decided in 12 months' time, one week after the Estimates had gone through the House, that henceforward some other new organisation should be responsible for the export of whole cream. If a question were tabled in the House would the Minister give  his reasons for handing over the export of whole cream to this new body or would the questioner have to wait 12 months until the Estimates came round again?
Mr. O'Quigley: I am not making any hypothesis at all. I am examining the legislation that is before us. Senator Lenihan has already unburdened himself on this matter to the grave dissatisfaction of Senator Sheridan who regarded him as a Fianna Fáil legal luminary and I take it that is the lowest category of person to which any person can fall. A very simple question was posed and the Minister has not been specific on this point. In relation to the instructions or directions which the Minister may specify in writing from time to time to An Bord Bainne, Senator Quinlan asks in his amendment would the Minister answer a Parliamentary Question put down in relation to these instructions. The Minister has not said: “Yes, certainly I will.”
Mr. O'Quigley: I have a clear recollection of some Bill which was before us in connection with which Senator Lenihan acted as the kind of object known in this space age whereby certain sounds bounce off outer space and come back. Senator Lenihan on this occasion acted as this kind of outer object that bounced back the proper reply, because the Minister for Industry and Commerce said Senator Lenihan spoke the mind of the Government upon this subject. Senator Lenihan was given that exalted position and when Senator Quinlan was asking a question Senator Lenihan said: “Of course the Minister will reply.” I am not particularly satisfied and do not think that is a sufficient  answer to the question put by Senator Quinlan.
I should like to refer to the Long Title of the Bill which includes among other matters “the establishment of a Board to be called An Bord Bainne and to define its functions.” In Section 5 the functions of the Board are defined and among the functions that are being defined is that the Board shall, in relation to the export of certain products, comply with the directions which will be issued to them from time to time in writing by the Minister. That is the purpose of this amendment and that is the purpose of paragraph (a) of subsection (1) of Section 5. The specific question which the Minister has not yet answered is: Will the Minister answer in Dáil Éireann—the only place where he is answerable under the Constitution—and give particulars of the directions which he has given in writing under subsection (1), paragraph (a) of Section 5? Will he further give the reason why he has given these directions? The Minister has not yet said: “I shall answer this” or “I shall not answer this.”
Mr. O'Quigley: We are handing over specific powers to a new Board which we are constituting and we are authorising the Minister for Agriculture to give directions in writing to this new Board. We are entitled to ask whether the Board will be solely responsible or whether the Minister will be responsible. We want to know whether the Minister will accept responsibility for answering specifically the questions which will be addressed to him in relation to his activities under subsection (1) (a) of Section 5 of this Bill. It is no use to talk about policy matters or anything of that kind. That question admits of an answer, “yes” or “no”.
Mr. O'Quigley: The Spanish Inquisition is past history. If we want to deal with past history we can do so but I do not think we ought to go into history prior to 1960, when this Bill was introduced. However, if anyone wants to get into history prior to that——
Mr. O'Quigley: I should like to, if people would not try to divert me from the amendments. Here is a situation in which we are being asked to establish a particular kind of board. The Minister will have certain authority in relation to this Board. We are asking whether in relation to the exercise of his powers in regard to that Board he will be answerable to Dáil Éireann under subsection (1) (a) of Section 5 of this Bill. That is unambiguous. It is a matter which admits of the answer “yes” or “no”.
Mr. Ryan: The question which has been put to the Minister has nothing to do with this Bill or this problem. There are rules, conventions, laid down as to the type of question which the Minister must answer and the type of question which he need not answer. If Senators on the other side knew their business they would know whether or not the Minister need answer a question of this type if he is asked.
Mr. Carter: I merely wish to support Senator Ryan. I do not think the Minister is called on to answer this question here. Dáil Eireann has its Standing Orders and I presume that Senators must have had a long conversation with Deputy Ryan this evening and they probably considered that this point was missed in the Dáil and decided to raise it here. As Senator Ryan pointed out, it is time enough to deal with the query when a question is put down in the House.
Seán Ó Donnabháin: I do not mind Senator Quinlan putting down these amendments he has suggested but we should not delay the House by discussing them at this stage. I draw the attention of the House to the fact that when an important measure, the Agricultural Institute Bill, went through the House, it contained a clause by which the Minister could direct the Institute to take up and investigate a matter which he required to have investigated. Nobody protested against that. If these amendments were to be passed tonight and if the Minister, with the responsibility of government, could not ask— I say “ask” instead of “direct”— that one thing or another be done it would destroy the effect of the Bill. I  ask Senator Quinlan to withdraw these amendments.
Professor Quinlan: We have many amendments before us and I do not wish to delay the House any more than anybody else but we must be clear on what we are doing. I am concerned with the sections and subsections of this Bill which it is our bounden duty to analyse. We must see what powers we shall give this new body. There is also this hidden power in the background, this ministerial control, and we are within our rights in seeking to know precisely what this ministerial control is and what are its limitations and to whom the body will be answerable.
I posed a very simple question and I shall repeat it: if the Minister in two months' time directs in writing that whole cream is to be exported by An Bord Bainne and then, in twelve months' time, one week after his Estimate is passed through the House—
Professor Quinlan: If the Minister makes a direction in writing, handing over control of exports of full cream milk and this becomes known to Deputies, and if a question is put down asking why the Minister did so, what influenced his decision——
Professor Hayes: Perhaps I could assist the Minister. There is no doubt the Minister is reponsible and answerable  to the Dáil for any powers he gets under this Bill when it becomes an Act, or under any other Act. A question may be asked of the Minister in the Dáil about anything for which he is responsible and the tradition is that the question as a rule is answered but, if the Minister refuses to answer, the Chair has no power to compel him to answer. The only answer to that is that the Dáil should censure the Minister.
It seems to me that an endeavour is being made to get the Minister to say what type of question he will answer. I should like to say to my friends that if I were the Minister, I would not answer “yes” or “no” to that question. I hope I am not regarded as letting down the side but there is no use in saying to the Minister: “If you are asked a question on a particular thing, will you answer it?” The Minister is responsible and can be put in a hole in the Dáil if the Opposition is expert enough to do it, but there are two separate questions here. Is he responsible? The answer to that is: “Most certainly he is responsible.” The second question is: “Will he answer certain questions?” Sin ceist eile.
Mr. O'Quigley: I said that undoubtedly Senator Hayes would have something to say about this. I said that when Senator Carter said that this matter was determined by Standing Orders in the Dáil. It is not. Standing Orders have nothing whatever to do with it——
Mr. O'Quigley: Wait a minute, a Chathaoirligh; there is no opportunity under the Constitution and no provision in Standing Orders to compel the Minister to answer any question addressed to him. What we want to find out is the answer to the other question Senator Hayes puts to the Minister—whether he accepts that he has responsibility to the Dáil in relation to the directions he issues in writing under this section. Does the Minister  accept that he has responsibility to the Dáil for these directions? If the Minister says “yes”, that is the end of the matter——
An Cathaoirleach: Amendments Nos. 3, 36 and 37 go together. They  deal with the right of the Board to engage in wholesale and retail business. If the Senator agrees, we can discuss these three amendments together.
I do not want An Bord Bainne to enter the wholesale or retail business on its own account in the State. I have strong views on that sort of thing in relation to the activities of other State bodies. It is quite wrong that a body such as we are constituting tonight should in fact indulge in competition with co-operatives or with ordinary business people. My main worry is that the definition of the work in which An Bord Bainne may engage is quite clear, and I should like to draw the attention of the House to subsection (3) of Section 4 which clearly states that the general duty of the Board is the marketing of milk products outside the State.
With regard to subsection (2) (b) of Section 5, which I want deleted and other words substituted, there was a discussion on this in the Dáil. I quote from column 1305, Volume 185 of the Official Report:
Mr. Russell: Section 5 (2) (b) provides that one of the functions of the Board will be to engage in the business of wholesale and retail dealing in milk and milk products. Then the second part of the section says the consent in writing of the Minister must be obtained for trading “in the State”. Does the Minister visualise that this board will go into competition with the existing commercial interests in milk products in this country?
There is a long exchange between Deputy Dillon, Deputy Russell, Deputy Wycherley and the Minister— an exchange which gets us nowhere. As far as the cold storage of butter is concerned, subsection (2) (a) of Section 5 looks after that. The subsection says:
That covers adequately the cold storage of butter. The Board can buy and sell butter in the normal way as a board generally serving the whole country. I cannot see the reason for subsection (2) (b) where, with the consent in writing of the Minister, they can indulge in ordinary retail and wholesale dealing in the State.
My anxiety in that regard is not allayed at all by Section 33 to which I have tabled further amendments. In Section 33, there is provision for the purchase or acquisition of shops by the Board. I feel I have debunked the Minister's answer in regard to that. Without the provision in subsection (2) (b) of Section 5, the Board has a right to cold store butter and to handle it in any way it desires. In Section 33, there is provision for the Board are acquire shops. If the Board to allowed to acquire shops under one section and under another section, with the consent of the Minister in writing, allowed to indulge in wholesale and retail dealing in milk and milk products within the State, there is grave danger that existing interests may find their field invaded.
It may be argued that if a new and distinctive cheese is produced—we have the lowest cheese consumption in  Europe—the Board might wish to set up shops in the principal cities and towns for advertisement purposes. I have some knowledge of wholesale and retail trading and I know quite well that such a step would not be necessary. Any incursion into that field by the Board would be unwarranted. We are giving power to this Board analogous to powers given to other State bodies. The Minister should not empower this Board to indulge in wholesale and retail dealing on its own account within the State. Neither should he empower the Board to set up shops.
Mr. Brady: I should like to make a small contribution to this debate. The purpose of this Bill is to improve the sale of dairy products and the dairying industry as a whole. The demand for such a measure is patent all over the country. The Minister is being asked here to explain every little detail. There have been criticisms of certain State bodies. May I say I do not subscribe to them?
Mr. Brady: I did not interrupt the Senator. I will not be diverted from what I have to say by Senator O'Quigley or anybody else. The Senator is not the absolute judge in this House of what a speaker should or should not say.
Mr. Brady: I am not so foolish as not to know that we have Córas Iompair Éireann in Clare. We have some State bodies in Clare and I should like to take this opportunity of congratulating them on what they have done for the people of Clare.
Mr. Brady: I have been associated with the creamery movement since 1926. I was chairman of one of the biggest co-operative stores in Clare, the East Clare Co-operative. We decided to establish one of the first branches of the co-operative movement in the dairying industry. We established a central creamery and four auxiliaries.
Mr. Brady: We established them with very little reserves. We went through lean years. I should like to thank the Minister for Agriculture of the day. I think it was about 1934, when the world market price of butter was 66/- per cwt., the Government gave a subsidy of £2 per cwt. in addition to paying the freight. The position of the dairy industry became so bad at that time that the farmers who had pledged themselves to cooperate deserted their own institutions. Gentlemen in adjacent towns who failed originally to prevent our establishing the creamery were paying 2d. per pound more for butter than it was worth on the market. We had to do the same and the result was that that co-operative creamery was forced into liquidation. I founded that institution with the help of Dr. Henry Kennedy, Mr. Langford and all those in Plunkett House. I came to the Minister at the time but he told me: “You have a creamery and you are supposed to have the milk. Why do you not send it there?” The position became so grave that the Dairy Disposal Board took over that creamery. At that time they had no creamery in County Clare.
What would be the position of the farmers in Clare but for the dairy industry? People may say that the creamery is not paying, but the people going to the creamery can rear their calves and provide good stores which they can sell when they want to. I should like to thank the Dairy Disposal Board for all they have done for us. They brought about the artificial insemination scheme. They promoted the anti-T.B. drive, and we are hoping to be a T.B. free area soon.  I am speaking as one who sprang from the land, as did everybody belonging to me, and as one who has earned his living from it. Since I was 17 or 18 years of age I took an interest in it, and when I was only 26 I became chairman of the East Clare co-operative.
Mr. Brady: I have heard semi-State bodies condemned, and I have no hesitation in paying a tribute to them. Senator O'Quigley is what is called an arm-chair farmer. His knowledge of the farming industry is very limited.
Mr. O'Dwyer: I think the section should stand as it is. It would be very undesirable to limit the powers of the proposed new body. It is very unlikely that they will have to deal in the retail business, but nobody can foretell what the future will bring. Therefore, it is well that they should have the power to do so if necessary.
Mr. Smith: I wonder does the Senator who put down amendment No. 3 realise what would be the result if it were accepted. He should realise that at present the Butter Marketing Committee is obliged to buy all the butter offered by the creameries at a fixed price determined by the Government. That responsibility is now being transferred to the Board. What would the little creameries in Cavan and Leitrim or the merchants all over the country do if there was nobody to sell them butter?
Mr. Smith: I shall deal with this matter in my own way subject to the Rules of Order in this House. I am trying to bring home to the Senator who has put down this amendment what the effect of it would be. We want to see that the new Board will deal with the question of the butter price in the same way as the Butter Marketing Committee deal with it at present and that they will be free to wholesale butter back to the small creameries and business concerns all over the country as has been done by the Butter Marketing Committee.
In regard to the other point made, in all such measures as this, powers are given to boards to acquire premises and erect offices and these powers can only be exercised with the approval of the Minister. Mention was made, both here and in the Dáil, of the undesirability of this Board interfering with ordinary private enterprise. It is the last thing that is contemplated. But surely if the Board can satisfy the Minister that, as a result of their activities, they require certain premises, he will give them the necessary authority? Mention was also made in the Dáil and here as to the undesirability  of engaging in the retail business. There is no such intention.
Mr. Smith: Let us take a place like Shannon. Suppose the Board decided to have a display centre for milk products there and suppose sales were made there to people travelling, they would be retail sales. Suppose when we get an airport in Cork, the Board were to decide to have a showroom at Cork airport, and certain people passing through decided to make purchases, would not they be retail sales? Yet who would say that in drafting a measure like this we should not give power to the Board to engage in such activities?
There might be a limited number— I would say a very, very limited number—because, who in his sane senses would ever think in terms of giving the Board power to engage in the ordinary retail business of the country? It could not be done without the Minister's permission and surely to goodness no one thinks that could ever happen, but it is necessary and desirable that we should give powers in this measure in order that those activities I have cited could be engaged in by the Board without let or hindrance.
That covers all the eventualities suggested by the Minister and it certainly covers the re-sale of butter by Bord Bainne to a small creamery in Leitrim, as suggested by the Minister, or to any other creamery that might want it during the winter. It certainly covers, without any shadow of doubt,  such a thing as a display centre at Shannon Airport, an exhibition or any sort of food fair, such as—mo náire thú—we have not had in the past. They are entirely covered by that subsection.
Subsection (2) (b) for which I wish to substitute a subsection which will enable the Board to engage in wholesale and retail dealing in milk and milk products outside the State provides that the Board may:
My reaction to that is that it is specifically put in to see to it that if at any future time the Minister or the Board wish to enter into the wholesale and retail business of selling milk and milk products, they can do so. I hold that we should limit State boards in their activities in this regard.
If the Minister will address himself to Section 33, amendments Nos. 36 and 37, he will find that my amendments do not seek to restrict the Board from acquiring such things as land, offices, stores, warehouses and other premises, but I specifically and deliberately exclude the word “shops” because I think that is entirely related to the highly suspicious wording of Section 5, subsection 2 (b). I do not accept the Minister's explanation, and I direct his attention to the fact that he did not give me the answer he gave Deputy Russell on Committee Stage in the Dáil. His answer was: “It has to do with the cold storage of butter.”
Mr. Donegan: With respect, I shall tell the Minister that having read all the relevant section of the debate, I made a note on the margin and the note is: “My foot.” It has nothing to do with the cold storage of butter. The relevant provision with regard to the cold storage of butter is in Section  5 (2) (a) under which the Board may acquire, by purchase or otherwise, store, dispose of, by sale or otherwise, import and export milk and milk products. I should be very much obliged if the Minister would tell me the reason he told Deputy Russell in the Dáil that it had to do with the cold storage of butter.
Mr. Smith: Have I not given the reason? Have I not told the Senator that if the Board are obliged by law to purchase butter at prices fixed by the Government and cold store it, what can that mean other than that they are being obliged to cold store it and sell it back as it is required at certain times of the year? How then can the Senator justify saying: “Cold store, my foot?” How can he justify that flippant remark in relation to a brief reply I made? Of course it has to do with purchase and cold storage.
All those powers are set out in sub-section (2) (a) of Section 5 but in sub-section (2) (b) of the same section, the scope is widened to bring in what looks to me like highly suspicious wording, even if there is no intention of implementing it at this moment in 1961. The subsection sets out:
In amendments Nos. 36 and 37 to Section 33 which we are also discussing, I do not seek to interfere with the acquisition by the Board of land, offices, stores, warehouses and other premises, but I do seek to interfere with their acquisition of shops. That leads me to believe that this legislation at least permits the Board to engage— and I quote the words of the Bill—“in the business of wholesale and retail dealing in milk and milk products... with the consent in writing of the Minister and until such time (if any) as the consent is withdrawn in writing by the Minister, in the State...” It is as clear as a bell.
Mr. O'Reilly: If we are to be realistic in this matter surely the Senator as a businessman will realise that a Board of this nature, having a very hard job to do, must be given certain freedoms and certain latitude and must be given ample power. I think we all agree, and I am sure the Senator who has spoken agrees, that if the job of work could be done by any  other means, if the interests existing up to the moment could have dealt with this problem, we would not have this Bill before us. Why, then, try to hamper by regulation or amendment the powers of either the Minister or the Board? I am quite satisfied that those powers are necessary. I suggest that the Senator can envisage a situation in which subsection (2) (b) would be necessary in this Bill. It is because the Senator can envisage such a situation that he is not anxious that it should be in the Bill.
Mr. O'Quigley: We have had recent confessions by the Minister for Health and the Minister for Agriculture. The Minister for Health confessed himself in a letter to the I.M.A. as being a good-natured man. In his concluding speech on this Bill, the Minister for Agriculture confessed himself as being a just man. I accept these individual praises by the Ministers of themselves as being subjectively correct but, if the Minister wants to be regarded objectively as being a just man, he ought not to come here and try to treat the members on the opposite side of the House as being unable to read and to understand the provisions of a Bill such as this.
Mr. O'Quigley: If the Minister states that such and such is the position, when manifestly it is not the position, he does not expect us to sit by silently and accept that he is the just man he holds himself out to be. Senator Donegan has put down an amendment. Its purpose clearly is not to give An Bord Bainne authority to engage in the retail of milk and milk products within the State. The Minister gives a variety of excuses which he expects us to accept as being the provisions of the Bill.
Senator Donegan refers to Section 33, which is entirely relevant to this section. It becomes necessary to relate one section to another section when we see the way they are drafted. The Minister says that the Board may acquire offices and premises if they think they  are necessary. If they think they are necessary, they may acquire them, he says, with the approval of the Minister. Subsection (1) of Section 33 provides:
Would the Minister indicate where in that subsection the need for Ministerial approval or sanction arises? He comes along and says in effect: “This will arise only where the Minister is satisfied that the Board should acquire these premises and they can only acquire office premises and shops with his approval.” Then he says that that is a usual provision in all these Bills.
The powers and functions of An Bord Bainne, created under this Bill, will have to be given by Parliament and they can only hold, sell or dispose of land by exchange if they are given those powers under the statute which creates the Board. The Minister tries to say that this Bill differs in no way from other Bills establishing statutory bodies because other statutory bodies have to be given authority to hold and sell land. Without any consultation, approval or disapproval of the Minister, once An Bord Bainne is established under this Bill they can provide themselves with shops and can engage—I was going to say “whole-sale”—in the retail of milk and milk products within the State.
Senator Donegan is quite right in his amendment which is designed to limit the activities of An Bord Bainne in the sale of milk and milk products to outside the State. Then the Minister says this is a usual provision and, in effect, that Senator Donegan is all wet. In order to do better than that, he gives the puerile excuse, which he asks us to accept, that this power to retail milk and milk products is necessary because we have two airports in the country, one at Shannon and another one soon at Cork, and that An Bord Bainne would be unable to sell a pound of Irish creamery butter if they did not have this power of retail provided in subsection (2) (b) of Section 5.
We had amendments this afternoon  on the Derelict Sites Bill which caused us amusement. Obviously the Minister is in the same Christmas spirit. He wants to amuse us with the explanation that it is necessary to incorporate a general power of retail on the part of An Bord Bainne in this Bill so that if An Bord Bainne want to advertise their products at Shannon Airport or Cork Airport and may be able to sell a pound of Irish creamery butter to a sentimental traveller passing back to America, they can do so.
The Minister expects us to act as though we were all expecting Santa Claus. If that is what he has in mind —and here is where I come to the just man—I suggest that on the Report Stage, having accepted Senator Donegan's amendment, he might add another subsection to Section 5, sub-section (3), to say nothing in subsection (2) of this section shall prevent An Bord Bainne from selling milk and milk products for the purpose of advancing sales or as an addition to advertising milk or milk products in this country. That is all he has to do.
That is quite a usual type of provision to incorporate in Bills where you want to grant a limited power as, in the words of the Minister, is required by An Bord Bainne. If that is what he wants he can have it on the Report Stage. However, he ought not to ask us to accept that a general power of retail within the State must be given to An Bord Bainne so that they can be permitted to sell a pound of Irish creamery butter to a sentimental American when he is returning to America.
Mr. O'Reilly: Can the Senator read into the Bill that he is compelled to buy from the Board as well? It would not surprise me if he would say there is something in the Bill which compels him to buy from the Board retail.
Mr. Donegan: I should be thankful if the Minister would say why he objects to my amendment and why he gave Deputy Russell the answer that Section 5 (2) (b) had to do with the cold storage of butter, when, in fact, as has been proved conclusively in the Seanad, it did not.
Mr. Donegan: I do not flatter myself by presuming to be highly brilliant but certainly I have sufficient intelligence to be able to examine this ordinary Bill. I can assure the Minister that I know what I am talking about. Certainly, some of us on this side of the House will have to be registered as dissenting, if the Minister does not wish to accept the amendment.
Brennan, John J.
Cole, John C.
Davidson, Mary F.
|Murphy, Dominick F.
O Ciosáin, Eamon.
O Donnabháin, Seán.
O Grádaigh, Seán.
O Maoláin, Tomás.
O Síochfhradha, Pádraig.
Sheridan, John D.
Walsh, Laurence J.
|O'Keeffe, James J.
O'Quigley, John B.
Quinlan, Patrick M.
Tellers: Tá; Senators Carter and Ó Donnabháin; Níl: Senators Donegan and O'Quigley.
Question declared carried.
Amendments Nos. 4 and 5 not moved.
The Seanad adjourned at 10.5 p.m. until 10.30 a.m. on Thursday, 5th January, 1961.
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