ENFORCEMENT OF LAW (OCCASIONAL POWERS) BILL, 1923.—REPORT STAGE.

I beg to move that the Enforcement of Law (Occasional Powers) Bill be received for final consideration.

I beg to second the motion.

The following amendments appeared in the Order paper in the name of Mr. Gavan Duffy:—

(1) To add to Section 7, Sub-section 1, line 22:—

"Provided that no chattels shall be removed by, or by order of, an Under-Sheriff to any place outside Ireland without the leave of a District Justice, such leave to be obtainable upon application madeex parte by the person at whose instance the Under-Sheriff enforces execution, and upon such evidence as the District Justice shall deem sufficient.”

(2) In Sub-section 2, lines 26 and 27, to insert between the words "within or" and the word "outside" the words "subject as aforesaid."

(3) In Sub-section 4 line 55, to insert between the word "shall" and the word "be" the words "(subject as aforesaid)."

I beg to move the first amendment. The first three amendments on the Order paper stand or fall together, the second and third being consequential on the first. The object of the first amendment is to impose some check upon the liability of abuse by the Sheriff of the new power he is acquiring, of taking the goods in execution for sale beyond the seas. Upon the last reading I tried to induce the Minister to leave out of the Bill the power to remove goods to England or elsewhere. He gave his reasons for refusing, and I am free to admit that in the case of certain classes of chattels these reasons would be cogent ones under certain circumstances. That does not, however, alter the fact that by putting an indiscriminate, unchecked power into the hands of the Sheriff to remove goods out of Ireland you are liable to inflict very great hardship on the debtor, I was trying to find the simplest way of getting some sort of control or check, and the method here proposed is an attempt to put down in writing what seems to be to be the simplest way, while I am willing to agree to any other method, so long as there is a check. The object of this amendment is to prevent an execution creditor from sending goods outside of Ireland, cattle or other chattels, without first going to the local Justice and explaining to him the circumstances under which he thinks that this unusual step is necessary. The proposal is that the creditor should do this in the simplest possible way by going, without any legal formalities or notice to the other side, to the Justice, and stating his case and satisfying the Justice that he could not get a proper sale of the goods in question in Ireland. One could easily conceive the possibility of valuable goods being taken away on the ground that a better sale could be got elsewhere, and all this being done in haste and without proper consideration. I desire to see some check imposed on arbitrary power which may become a danger.

Mr. O'HIGGINS

It is not proposed to accept this amendment.

The amendment must be seconded.

I formally second it.

Mr. O'HIGGINS

I do not think that if the amendment were accepted it would appreciably improve the position. An Under-Sheriff is the officer not of the District Justice's Court, but of the Higher Court, and to say that he, with his full knowledge of the circumstances and the discretion which he must be assumed to possess, by reason of his qualifications for the office, being an officer of a Higher Court, must go before a District Justice and show cause why he should take certain action, I do not think is a good proposal. It is not in keeping with the dignity of the Higher Court to send an officer to explain or defend his action before a Lower Court.

If the Minister would pardon me, I think he misunderstands the proposal. It is not proposed that the Under-Sheriff should go before the Justice, but it is proposed that the creditor should go to the Justice or whoever is the permanent legal official there.

Mr. O'HIGGINS

I do not think that the amendment is useful or necessary. We must assume certain discretion and certain probity on the part of the officers of our Administration, for if we do not, and if we are to simply set to work to legislate on the basis that these officers must be assumed to be either rogues or tyrants, then we would find our programme of legislation very crowded indeed. Why will an Under-Sheriff attempt to take goods out of the country if he can get a reasonable sale within the country? People do not go to these rounds or to that trouble, and if the answer is that he would do it for the purposes of fraud, then why not let him be prosecuted? There is always a remedy against fraud or malicious action of this kind. This amendment is not a practical one, and I do not recommend it to the Dáil.

Amendment put and negatived.

Amendments 2 and 3 are lost consequentially.

I beg to move the fourth amendment, which is as follows:—

"To add in line 24, after the words ‘breaking in':—

"Provided always that before breaking into any dwelling house or other building the Under-Sheriff shall have made reasonable efforts to enter peaceably and without violence."

This is an amendment to which I attach considerable importance, because on the last reading this Dáil gave the Sheriff—I think very wrongly—power to break into any dwelling house, be it that of a debtor or that of a third party, and gave him a complete indemnity for doing so. I do not think that it is unreasonable to suggest that we must have in this Bill a clause insisting that before the Sheriff can break into anybody's house, be it debtor or third party, he must, like every other person, take the ordinary steps of knocking at the door and of ringing the bell. I may be told that it is unnecessary, but we are living in strange times, and I should not like to give the Under-Sheriff the extraordinary power of going to a man's house and breaking in without further ado. I press this amendment on the Dáil as being essential to prevent the risk of serious trouble in cases where you may have, not necessarily a bad Under-Sheriff, but an unsatisfactory substitute bailiff. It is not the Under-Sheriff himself, but these bailiffs, these new gentlemen who are to be the substitutes for the hitherto qualified bailiffs, who can be sent to such and such a house, and these inexperienced gentlemen in certain cases may be tempted, and certainly are liable to take the law literally as they find it and break into the house. I want to stop that.

I second that amendment. I think it is not unfair that the Sheriff's officer should be asked to demand admission.

Mr. O'HIGGINS

It will be convenient if in dealing with this amendment I can refer to the subsequent amendment standing in the name of Deputy Fitzgibbon. They both aim pretty much at the same objective, and the only fault that I have to find with Deputy Fitzgibbon's amendment is that it is so worded that it seems almost to invite actions against the Under-Sheriff. My suggestion would be to combine the object of that amendment with the object of the amendment of Deputy Gavan Duffy. I would suggest this amendment in these or in similar terms:—"To add at the end of Section 10: ‘Provided, however, that (a) in any case where the Under-Sheriff shall break and enter the premises of a person other than the person against whom he has been called upon to enforce a judgment order or decree, he shall either have found any goods, animals, or other chattels of such last mentioned person therein or thereon or shall have reasonable grounds for believing that there were some such goods, animals, or chattels therein or thereon, and also (b) in every case he shall have made reasonable efforts to enter peacefully and without violence." If both the Deputies would consent to that interpretation of their wishes and accept that amendment as sufficiently embodying what they wish to secure, possibly the Dáil would allow that to be accepted.

Would the Minister let me see that amendment in writing?

Mr. O'HIGGINS

Certainly.

These two amendments deal with wholly different matters. The amendment of Deputy Gavan Duffy, which is before the Dáil, aims at providing that the Sheriff's officer shall knock at the door of any man's house before he breaks it down. My amendment, which is not yet before the Dáil, only deals with breaking into the house of anyone who is not the judgment debtor. When I come to it, I think I can show a reason why the suggestion made by the Minister for Home Affairs would not be satisfactory.

So far as my amendment goes I think the text proposed by the Minister for Home Affairs is an acceptance of it; therefore we might vote; presumably there is no objection to it.

Deputy Gavan Duffy's amendment is withdrawn, so.

No, it is accepted.

These are very irregular proceedings.

My point is that the Minister in effect accepts my amendment. I may not be right, but I think he does.

The Minister does not accept the amendment. He rose and spoke against it, and suggested a different amendment. Before the Dáil can decide if that different amendment should be accepted, or put, we shall have to have this amendment withdrawn.

I think there is a misapprehension. The Minister spoke on two amendments, which he combined.

One of which was not moved.

At the end of the new amendment he dealt with mine in a form of words, which are a reproduction of mine. That form of words would not be applicable unless the two are joined together. Therefore I suggest that my amendment be taken.

They cannot be combined.

Mr. O'HIGGINS

I accept Amendment No. 4.

Amendment put and agreed.

I move the following Amendment: At the end of Clause 10, to add:—"Provided nevertheless that any Under-Sheriff who shall break and enter the premises of any person other than the person against whom he is called upon to enforce a judgment order or decree, and shall fail to find any goods, animals, or other chattels of the debtor thereon shall, notwithstanding any provision of this Act, be liable to an action for such breaking and entry, and for any injury occasioned thereby or in consequence thereof, unless he shall satisfy the Court or jury before whom such action shall be tried, that he had reasonable grounds for believing that there were goods, animals, or other chattels of the debtor upon the said premises." I had no intention when drafting this amendment of inviting or provoking actions against the Sub-Sheriffs or their officers. I think that the criticism is not unfair until you read the clause itself, and when you do so it appears to me that the wording of it makes the amendment in the form I have drafted it necessary, and prevents the suggestion of the Minister from having any effect at all, except the clause beginning "that no action for damages or trespass shall lie against the Under-Sheriff." You start by taking away any right of action whatever, and the suggestion of the Minister does not give back the right of action that is taken away in the first clause. It is necessary to provide that in certain events he should get that right back. The suggestion of the Minister gave him back no right at all. It was simply a provison, but it did not give the right back. I do not think, in view of the wording of the clause, that the amendment can be read as inviting actions against the Sub-Sheriff. You started by taking that right away. The proviso is that if he breaks into the premises of a person other than the judgment debtor he shall be liable to an action, unless he proves that he had reasonable grounds for doing it. It was stated by a well-known Sub-Sheriff so long ago now that he may not be very well known to all the members of this Dáil, because I am afraid I am amongst the very highest class in ranks of age here, that Sheriffs' bailiffs were not recruited from the ranks of the Archangels. I make no charge against Sheriffs' bailiffs as a class or as individuals, but we all know that from the earliest times Sheriffs' bailiffs have been held up in literature and elsewhere as people who are not overflowing with the milk of human kindness. The trade they follow makes it essential that they should be hard men, because they have to deal with every kind of fraudulent debtor, and the people with whom they have to deal are in the main people evading the payment of just debts, who have to be compelled in some way or other. Of course, there are cases of hardship. The Sheriffs' bailiffs are up against a very hard lot, and it is not to be wondered that they are a very hard lot themselves. I desire to provide against any possibility of the Sheriffs' bailiffs, not through their own inherent vice, but through the nature of circumstances, and particularly to the possibility of their being used, without fault of their own, to satisfy private spite to the detriment of unfortunate people who are wholly innocent. Now, there would be nothing easier for a person who had a grudge against a next door neighbour when he saw the bailiff levelling distress in the street, than to say "You will find goods in such and such a place," and off he goes, and the Sheriff's bailiffs break in the door on that information, maliciously given by that person, and that person whose door was broken in is left without any remedy whatsoever, although there may never have been any goods on his premises. Now, I think it ought to be up to the Sheriff's bailiff, when he breaks into a person's premises and finds nothing there, if the person whose premises were broken in chooses to have a shot at him, that he should be in a position to satisfy the Court, or whoever he goes before, that he had reasonable grounds for believing he would find something on the premises. I do not think that is an invitation to bring bogus actions. If such actions are brought, and if those who bring them are beaten, the costs will have to be paid any way. People will not bring actions and run the risk of being involved in costs. I do not think it is unfair to say that a man who has reasonable ground for action against a Sheriff should be precluded from bringing it. And unless you put in a proviso such as I have here the first lines of the section take away that right of action, and nothing gives it back. I do press you not to reject this amendment, and if the Ministry do not accept it, though I do not like going to divisions, I will ask this Dáil to say that this is not an unfair protection to give to an innocent man, because remember he must be innocent if the Sheriff finds no goods in his place. It is only in the case of breaking and entering in which nothing is found, and the Sheriff is unable to give reasonable grounds for breaking and entering, that any action can succeed. I know there is a party in this Dáil who think that this section is so water-tight that it cannot be amended at all, but surely if any amendment can be produced to mitigate the hardships of which they complain they ought not to vote against it, and I think any person here who contemplates the possibility of a Sheriff coming down and breaking into his premises for the purpose of levying a distress for a debt due by somebody else ought to support this amendment.

I second the amendment.

Mr. O'HIGGINS

The section, no doubt, takes away a right. The amendment which I suggested provides an exception to that it provides that in certain circumstances the right shall not be taken away. Whether it is better to take away a right and then proceed by an amendment definitely to give it back, or, taking away a right, to proceed to say that in certain definite circumstances that provision shall not have effect, is, of course, an abstruse question which we need not delay on. My suggestion was to add to Section 10 an amendment in these terms:—"Provided, however, that in any case where the Under-Sheriff shall break and enter the premises of a person other than a person against whom he has been called upon to enforce a judgement order or decree, he shall either have found any goods, animals, or such other chattels of such last mentioned person therein or thereon, or shall have had reasonable grounds for believing that there were some such goods, animals, or chattels therein or thereon."

In other words, that the provisions of Section 10 should not apply unless there was a fulfilment of the terms set out in that amendment. I do think that that is a better angle to approach the matter from than the angle set out in the Deputy's amendment. It is necessary that even the most timid Under-Sheriff should not be deterred from the performance of his duty, or the performance of his full duty. To the timid man the language of the Deputy's amendment is menacing. It is simply a matter of the effect on his mind of the two. I submit that an Under-Sheriff who simply sees set out a positive statement that he shall be liable to an action might be very much impressed, but if he sees it is set in a negative way, that no action shall lie provided that so and so—in other words, that there is good faith on his part, reasonable grounds for believing that the goods of the judgment debtor are in fact in those premises, that is something he understands, something that will not have the same menacing or terrifying effect on his mind. I do not feel impelled by my light of reason to accept the Deputy's amendment. I much prefer my own suggestion.

Would the Minister read again the words which give a cause of action, because I could not catch them.

Mr. O'HIGGINS

The effect of the amendment which I suggest is to provide an exception to Section 10. It would simply be a continuance of Section 10. It is a proviso to Section 10. (Minister's Amendment again read.)

In other words, Section 10 shall not have effect unless these conditions are fulfilled.

Shall I be in order in saying one more word to try to get this thing elucidated? What Deputy Fitzgibbon pointed out is right. There is no cause of action in the words just read by the Minister, and, even if there were, there is still this substantial difference between the two amendments, that Deputy Fitzgibbon puts upon the Sheriff, who alone knows what is in his mind, the proof of whether he had reasonable cause or not, whereas the Minister puts it upon the debtor, who cannot know what is in the Sheriff's mind—to prove positively whether the Sheriff had reasonable cause or not. Obviously the reasonable thing is to make the Sheriff prove whether he had reasonable grounds or not.

Mr. O'HIGGINS

The effect of my amendment is to qualify Article 10—to say that this positive, universal statement that no action shall lie is modified and qualified to this extent, that he must either have found some goods, animals or chattels on the premises, or he must have reasonable grounds for his belief that they were there.

With all respect to the Minister, there is no cause of action provided.

The Deputy cannot speak again except we recommit these Clauses.

The Minister is misinterpreting his own amendment.

Is not the effect of the Minister's amendment, that if the Under-Sheriff does not find those goods, animals or chattels on the premises, and is not able to show that there were reasonable grounds to believe they were there, a cause of action does lie.

What I cannot understand about the matter is, that any Government should claim the right to take away a freeman's right. What right has an Under-Sheriff to break into my house, good, bad or indifferent, when he is on another duty. Are we to be free men or are we not? That is really what it amounts to.

It seems to me that there is very little difference.

A Deputy cannot speak a second time except we recommit this Bill.

I forgot we were not in Committee.

Is it in order for any Deputy to move the re-committal of the Bill?

I beg to move it.

I second that.

Motion put: "That Section 10 and Section 15 of the Bill be re-committed."

Agreed.