Amendment 33, which proposes to delete Sub-section (1), can be dealt with in connection with Amendment 51.
RAILWAYS BILL, 1924. - COMMITTEE STAGE RESUMED.
SECTION 17.
(1) For the purposes of this Act the Railway Tribunal shall have full power and jurisdiction to hear and determine all matters, whether of law or fact, which shall be duly brought before them under this Act, and shall not be subject to be restrained in the execution of their powers under this Act by the order of any other court, nor shall any proceedings before them be removed bycertiorari into any other court.
(2) The Railway Tribunal with respect to the following matters, that is to say:—
(a) enforcing the attendance of witnesses (after a tender of their expenses), the examination of witnesses orally or by affidavit, and the production of deeds, books, papers, and documents; and
(b) punishing persons refusing to give evidence or to produce documents, or guilty of contempt in the presence of the railway tribunal or any of them sitting in open court; and
(c) the enforcement of their orders; and
(d) other matters necessary or proper for the due exercise of their several jurisdictions under this Act or otherwise for carrying this Act into effect;
shall have all such powers, rights, and privileges as are vested in the High Court for such or the like purposes, and all proceedings before the railway tribunal shall in law be deemed to be judicial proceedings before a court of record.
(3) Save as otherwise provided by this Act the costs of and incidental to every proceeding before the railway tribunal shall be in the discretion of the railway tribunal, who may order by whom and to whom the same are to be paid and by whom the same are to be taxed and allowed.
I move Amendment 34:—
In sub-section (1) to insert immediately after the word "shall." line 16, the words "Save as otherwise provided by this Act."
I would ask the Minister to accept that amendment. The words will not alter the clause very much. There are a good many amendments to Section 29, and this amendment would affect them. If by any chance we could get the Minister to accept them, it would be of some importance.
If Deputy Hewat intends that this amendment should depend upon the fate of other amendments to a later section, and urges that it stands in with certain later amendments, I am agreeable to it standing over until we reach them. We have already in the section "matters which shall be duly brought before them under this Act," and it does not seem that the proposed amendment would add anything whatever to the section as it stands.
I would press the Minister not to throw it out at all events at the present stage, because it does not do any harm; it does not make any material alteration. It is looked upon as rather important in view of the demands made in various directions, such as exceptional rates and safeguarding ports and other matters, which will arise later on. If the Minister will accept it even provisionally, I am satisfied. If, on a later stage, it is found the inclusion of the words would be of no importance, then, of course, I would prefer to drop it. At the moment I place some importance on it.
I am prepared to meet the Deputy to this extent: I will reject it provisionally, and if later any amendment is passed which seems to necessitate this particular one, I will consider it.
That will be all right.
I take it the amendment is withdrawn?
Yes, on the agreement with the Minister.
Amendment by leave withdrawn.
I move the following amendment:—
In sub-section (2) (a) to insert in line 28 immediately after the word "the" the words "discovery on oath and."
This refers to examination of witnesses in connection with actions that may arise. The parties coming before the tribunal should be required to give evidence on oath. I think the provision is necessary in order to provide that in cases where it was really necessary the evidence should be given on oath.
I agree that what the Deputy seeks to do is quite desirable, but I would point out to him that it states: "shall have all such powers, rights and privileges as are vested in the High Court." I am informed that that definitely covers the point that the Deputy seeks to bring in by the words, "discovery on oath." It is quite covered definitely by these general words.
If it is covered, of course I am satisfied. But I hope it is clear that it would be possible to have discovery on oath.
I will guarantee to have an examination of this phrase made, and if it does not cover it, to have some phrase of this kind included, but I am informed that the general phrase does cover this particular thing.
Mr. O'CONNELL
I do not think it would cover it, because it says: "The Railway Tribunal with respect to the following matters shall have all such powers, rights, and privileges as are vested in the High Court," and the matters in which they shall have all these powers, rights, and privileges are definitely specified in (a), (b), (c), and (d).
If the Deputy will continue to read he will see that "all proceedings before the Railway Tribunal shall in law be deemed to be judicial proceedings before a Court of Record," and proceedings before a Court of Record would necessitate the taking of evidence on oath and the discovery of documents or other matters on oath. At any rate, I have already guaranteed that we intend to bring this point in, if it is not already brought in, the Deputy's amendment or some corresponding form of words will be included.
I am quite satisfied.
Amendment, by leave, withdrawn.
Before the passing of this section I want to draw attention to what seems to be an inconsistency as between the section itself and Section 21 in regard to appeal. This section says: "For the purposes of this Act the railway tribunal shall have full power and jurisdiction to hear and determine all matters, nor shall any proceedings before them be removed by certiorari into any other Court.” They “shall not be subject to be restrained in the execution of their powers under this Act by the Order of any other Court.” Then, in Section 21 we have a section dealing with appeals. Sub-section (2) says: “Save as otherwise provided by this Act, an appeal shall lie from every decision of the railway tribunal to the Supreme Court.” That seems to the layman a contradiction. But, apart from the contradiction in those two sections, we have had an assertion in Section 17 that there shall be no appeal, which more or less places the tribunal in a position almost above the law, at least, as the highest court in the land in respect of railway matters.
There is always an appeal from a Court of Record.
Well, there may be an appeal from a Court of Record, but if it says, referring to a Court of Record: "There shall be no appeal to any other Court," that seems to me to show that it is not to have all the characteristics of a Court of Record. One of the characteristics of a Court of Record, if Deputy Hewat is right, shall be denied to this Court.
The clause says that it shall be deemed to be a Court of Record.
That may be. That means to say, I take it, that though there is no right of appeal from the decisions of this Court, in other matters it shall be deemed to be a Court of Record. The question of appeals in matters of this kind seems to be a very important one, and I learn that the British Act expressly provides for an appeal to the Court of Appeal, and even to the House of Lords, and those powers have already been exercised successfully against the tribunal. I would like the Minister to make that position clear. If it is possible, notwithstanding Sub-section (1) that there shall be appeals from this tribunal, then my objection falls, but as I read Sub-section (1) there shall be no appeals.
Where does the section say there shall be no appeals?
Sub-section 1.
"For the purposes of this Act the Railway Tribunal shall have full power and jurisdiction to hear and determine all matters, whether of law or fact, which shall be duly brought before them under this Act, and shall not be subject to be restrained in the execution of their powers under this Act by the order of any other court, nor shall any proceedings before them be removed by certiorari into any other court.”
There is a full right of appeal, is there not?
If that is not a denial of the right of appeal, then I am wrong. Is that a denial of the right of appeal?
Not at all.
Then the English of lawyers is different from the English of any ordinary person.
I ask the Deputy to consider the difference between restraint in the execution of their powers and an appeal on a decision already given.
I think the suggestion is that they can hear an action, that they cannot be prevented from hearing an action and giving a decision on it, but from that decision an appeal can lie. I take it that that is the suggestion, and I am speaking certainly not as a lawyer.
I hope the Minister and the Deputy are right, but, as a matter of fact, it was a lawyer who drew my attention to that, and a very experienced lawyer.
I cannot set myself up as an authority against a lawyer, particularly an unknown lawyer, but it is quite clear that there is a distinct difference between restraint in the execution of powers, that is to say, restraining a court from giving a decision, and the appeal from such decision when given. The two things are entirely apart, and Section 21 (1) says: "No appeal shall lie from any order made by the railway tribunal," but that is limited in exercise of any jurisdiction conferred on them by Part I. of this Bill. There is restraint of appeal from a decision, but only in so far as it is in exercise of jurisdiction conferred under Part I. of the Bill.
If the Minister is satisfied, I am.
Question—"That Section 17 stand part of the Bill"—put and agreed to.
SECTION 18.
(1) The railway tribunal may, with the approval of the Minister and the Chief Justice, make general rules governing their procedure and practice and generally for carrying into effect their duties and powers under this Act, and such rules may, amongst other things, provide for—
(a) the awarding of costs by the tribunal, but so that in proceedings under this Act before the railway tribunal at the instance of any company or person, other than disputes between two or more railway companies, the tribunal shall not have power to award costs unless they are of opinion that either the application or claim or complaint or defence or objection, as the case may be, is frivolous and vexatious;
(b) the reference of any question to a member or officer of the tribunal, or any other person appointed by them, for report after holding a local inquiry;
(c) enabling the tribunal to dispose of any proceedings before them, notwithstanding that in the course of the proceedings there has been a change in the persons sitting as members of the tribunal;
(d) the right of audience before the tribunal, provided that any party shall be entitled to be heard in person, or by a representative in the regular employment of the party duly authorised in writing, or by counsel or solicitor;
(e) the number of members of the tribunal who shall form a quorum for the hearing of different classes of cases.
(2) There shall be charged by the railway tribunal and paid in respect of proceedings before them and in respect of acts done by them or any of their officers in the execution of their respective powers and duties such fees as shall be prescribed by Orders made by the Minister on the recommendation of the railway tribunal and with the sanction of the Minister for Finance.
(3) The Minister shall give to the railway tribunal such assistance as the tribunal may require, and shall place at the disposal of the tribunal any information in his possession which he may think relevant to the matter before the tribunal, and the Minister shall be entitled to appear and be heard in any proceedings before the tribunal.
(4) The railway tribunal shall annually make a report to the Minister of their proceedings under this Act, and the Minister shall lay such report before each House of the Oireachtas.
Amendment 36 is covered by the ruling on the last. It can be dealt with under Amendment 51.
I do not follow that ruling. I was not here when the last ruling was given. Perhaps you will explain?
The question of the Tribunal is coming up on this further amendment, 51.
I would suggest that this is a thing distinct from the amendment by which Deputy Johnson seeks to divide the Tribunal into two. This aims at a particular section. With all deference, I would suggest that this amendment is different from the amendment, 51, and might be moved now.
This amendment deals with rules of procedure, and that has nothing to do with any amendment you may have given a decision on.
This has come on me rather suddenly, and I am not prepared to deal with it at the moment satisfactorily. I am very pleased to bow to your ruling, but I cannot understand it.
Amendment 36 not moved.
I move:—
"In sub-section (1) (a) to delete in line 52 all words after the word "Tribunal" to the end of the paragraph in line 59."
The purport of the section is to limit the powers of the Tribunal with regard to costs to cases that are frivolous and vexatious. The amendment proposes to strike out the limitations in this respect of the Tribunal, and that clause (a) shall read that the Tribunal shall have power to award costs as they may desire. In other words, after the word Tribunal to strike out all the remaining portion of the paragraph.
resumed the chair.
I would like to support this amendment. This qualifying phrase goes a little bit further than Deputy Good says. What it means is that it leaves it within the power of the Tribunal to award costs. Under the Bill there is a qualifying clause, that the Tribunal cannot award costs unless it is found that the proceedings taken are frivolous and vexatious. Who is to decide what is frivolous and vexatious? The Port and Docks Board some years ago had to take action in connection with railway rates that were being charged and the facilities given, as detrimental to the Port of Dublin. It is the old story of this Great Western and Great Southern and Western combine. That action cost them a large amount of money. Supposing they had been a private individual it would have been a very heavy charge. That is one of the difficulties in this matter; it puts railway companies, and more particularly would it put the amalgamated companies, in a position to snap their fingers at you or me, or anybody, because we could not afford to bring it before the tribunal, for it would cost too much. I fail to see why the procedure in this case should not follow the ordinary procedure in a court of law, that the costs should follow the verdict. If a man finds that railway companies are doing something they ought not to do—and I am sorry to say it is a common practice—he may be precluded from taking action by reason of the prohibitive costs. If you are successful, surely to goodness you have the right to get your costs.
Might it not be in the public interests that proceedings that are not frivolous and vexatious should be encouraged? Deputy Hewat has pointed out that a private individual will not take an action of that kind and go before the court. No lay man can be sure of succeeding, and, therefore, as Deputy Hewat has pointed out, dare not face the risk of paying not only his own costs, but the costs of the railway company. I think in the public interest it would be well to keep the proviso that the amendment seeks to delete.
Section 52 says: "Any Harbour Board or Council of any county or borough district; or any Chamber of Commerce or association representative of shipping, agriculture, traders or freighters which may obtain a certificate from the Minister that it is a proper body to make such an application" ... there is authority under the Bill for striking a rate for the purpose of bringing complaints before the Tribunal. Is that so?
Yes.
Deputy Davin has not followed my point. I only gave the Port Board as a case in point as to what happened. It is quite true that the Port and Docks Board would be levying their charges out of a common fund, but what about the small bodies or associations, say, timber merchants or a body of that sort, who had a grievance against the railway company and brought the case before the Tribunal, and found the railway company were doing something they had no right to do; then have they not the right to get their costs?
The object of this sub-section was to render the proceedings as inexpensive as possible to litigants of a legitimate type, that is, litigants with a bona fide case, and it is believed this sub-section, as drafted, provides definitely for that, for the litigant in any event will only have to bear his own costs, and in the case of a private trader against a railway company he is guaranteed against being mulcted in the costs of the railway company opposing. The whole object of the sub-section is to render the proceedings as inexpensive as possible, and this section, as drafted, is a guarantee to the trading community which will be taken away if the amendment is passed.
Amendment put, and declared lost.
I move amendment 38:
In sub-section (1) (a), line 59, to add after the word "vexatious" the following words-"and so that the tribunal shall not have power to award costs in respect of any proceedings before it under Part 1. of this Act."
I am not quite sure that the previous amendment moved by Deputy Good was not anticipating the one that I now submit. Proceedings under the Act before the tribunal on the amalgamation and absorption schemes will be in the nature of Private Bill procedure and, in fact, a substitute for it. No costs are awarded in the case of such procedure. Moreover, every person concerned—shareholders whose financial interests are directly affected by the Bill, railway employees who are directly mentioned in the Bill (Sections 4 (d) and (e) and 6 (e)—should have a right to come to this tribunal to protect their interests. Moreover, it should not be overlooked that Section 8 (3) of the Bill provides that the schemes when confirmed and settled by the tribunal should have the effect of an Act of the Oireachtas and, therefore, it is of the utmost importance that everything should be done correctly and that every interest concerned should be entitled to appear before the tribunal before the rights given to it or preserved by the Bill are precluded. The freest access to the Railways Amalgamation Tribunal was afforded under the British Railways Act, and no costs were ever awarded or fees payable in respect of applications to the Tribunal on capitalisation schemes. They were awarded and charged in respect of Railway Charges applications, but, of course, different conditions apply to them. I hope that the Minister will see his way to accept this amendment, taking what has happened in England as a guide to what may happen here if the clause in the Bill as it now stands is allowed to pass.
If the Deputy will consider the sub-section as it stands and the effect of the addition of his words to the sub-section, I think he will see quite easily that the only addition is this: that it precludes the Tribunal from awarding costs in cases where they are of opinion that the complaint is frivolous and vexatious. It adds that in respect of proceedings under Part I of this Act costs shall not be awarded, even if the case be vexatious and frivolous.
Does the Minister contend then that any complaint put forward by a railway company which is not agreeable to come into the amalgamating company is frivolous and vexatious?
I do not contend anything of the sort, but I do say if some complaints be frivolous and vexatious, then there is a certain facility with regard to costs. If it is not vexatious and frivolous the section as it stands applies.
Who is to decide?
The tribunal.
Will not the procedure in connection with the amalgamation and the absorption conditions be in the nature of Private Bill procedure? If that is the case, and if any company is still standing out against the scheme of amalgamation and does not submit to an agreed scheme, the object of the amendment is that any costs in connection with such proceedings should not be a charge upon State funds.
As the section stands, if the particular case Deputy Davin mentions is not frivolous and vexatious they get no costs, but if it is frivolous and vexatious costs may be given against them.
The only reason I can see for the amendment is this, that Deputy Davin considers that all objections to the amalgamation scheme must necessarily be considered frivolous and vexatious, and he wants to preclude costs being given.
It must take the form of Private Bill procedure.
It must not take any such form. There is a section in the Bill that if the amalgamation scheme be not agreed upon, then the tribunal makes the amalgamation scheme. There is no contemplation of Private Bill procedure or anything corresponding to it in this Bill.
If the Minister says that such is the case, and that that is what will actually happen——
I do not ask the Deputy to rely on my reading of the Bill. The sections are before him and make it quite clear, I think, that what I say will be the state of affairs brought about by the Bill.
The Minister has an advantage over me in regard to many matters of this kind. If he is aware that there is no agreement up to the present time that one, two, three or more companies will come into the scheme under the conditions which the Tribunal might be likely to sanction, and if the companies concerned still stand out, he must be in a position to say what the procedure is to be until they will be amalgamated or absorbed. If it is not in the nature of Private Bill procedure, then I think the Minister should say so definitely. He is in a position to know whether such is the case or not.
Amendment put and declared lost.
I move amendment 39:
To delete sub-section (1) (b).
The sub-section reads as follows:—
"The reference of any question to a member or officer of the Tribunal or any other person appointed by them for report after holding a local inquiry."
In moving the deletion of that subclause the intention is that such inquiry shall be made by the Tribunal and not referred by them to an officer of the Tribunal, who shall make the inquiry and issue a report. It is obvious where complaints are made to the Tribunal that they should be heard by the Tribunal. If they are not heard by the Tribunal one of the advantages of such a Tribunal would be done away with. We object to the Tribunal having the power of referring the matter to some subordinate official, and having the matter settled by him.
Supposing it is necessary for the Tribunal to get information about some question down the country, Deputy Good suggests they cannot send one of their officials to make an investigation there on the spot. They must all go down and inspect the place themselves.
They can send them down if they like.
This gives the power to send them down, and you want to delete the words.
This gives official authority to their action, with all respect to what the Deputy suggests, but it does not preclude them from sending down one of their officials privately, getting all information, and hearing him as a witness if they so desire.
If sub-section (b) (18) (1) read, "the reference of any question to a member or officer of the Tribunal or other person for decision," there would be some point in the deletion. The words of the sub-section are, "refer for report," that is to say, refer for a report back to the Tribunal, the Tribunal being the deciding body in the last instance. This is power that was taken in the Railway and Canal Commission, and was found very useful for their purpose. It was designed to facilitate the business of the Tribunal.
That might be reasonable enough from one point of view, but if the Minister will go further, he will find that, in addition to getting a report, the official has power to hold a local inquiry. Surely, if a local inquiry is necessary-I admit the words "local inquiry" are very ambiguous —it should be of a fairly extensive character, and surely it would not be the intention that such local inquiry should be held by an official of the tribunal?
It should be made quite clear by the Minister what is in the mind of the Government when they say "the reference of any question to a member or officer of the tribunal to inquire." A matter of high importance, which in the ordinary course would be a case to be submitted to the tribunal, might be submitted to the officer who should not have the authority to deal with that question. What have they in their minds when they say "any question?" What particular "question" have they got in their minds?
I hope I will not be considered bankrupt of ideas if I say I have nothing specific in my mind with reference to this term "any question." It means any question which the tribunal may think fit to refer to the officer for report back to themselves, after local inquiry, so that the Tribunal may make a final decision on the point.
So long as the tribunal will have the power or right to give the final decision on the matter, I am perfectly satisfied.
Amendment put and declared lost.
I move Amendment 40:
In sub-section (1) (b) to add at the end of line 62 immediately after the word "inquiry" the words "at which the parties to such question may be represented and heard."
This amendment is really to put in a provision that all parties interested should be represented and heard at the inquiry. It is only right that every person who considers he is affected by an inquiry should have a qualified right to be present and to be heard.
The Deputy proposes to add "at which the parties to such a question may be represented and heard.”
"May" in that case would really mean that they would establish a particular claim to be heard, if the parties could show they were interested in the matter.
Inasmuch as no section of the Bill prohibits the attendance and hearing of such witnesses this amendment adds only whatever force is given to it by the word "may." It does not seem to add very much to the Bill. In addition, I may point out that if a local inquiry is to be held, obviously it is for the purpose of getting local conditions examined, and this will be best put before the Inquiring Officer by witnesses from the locality. There is no prohibition in the Bill. The amendment only seeks to leave the position exactly as it is. If it were sought to amend the Bill by making the words "shall be represented or heard," then you would seem to put compulsion on witnesses to go before the tribunal. Or, limiting it a little bit, you would give a statutory right to such witnesses to appear. That will undoubtedly be provided under the rules to be made under Section 9. This is only a sub-section. The main section deals with rules governing procedure and practice. I think it is quite obvious that rules governing procedure and local inquiries will be made. It would be better to leave to the Minister and Chief Justice the making of general rules, without insisting here that they shall give statutory right to parties to be represented and heard. Representation, again, may be interpreted— would be interpreted, I suppose—to mean representation by counsel or solicitor. That may be beyond what the Deputy intends by this amendment.
Let us be clear in the matter. First of all, I object to the section. I supported Deputy Good's amendment in that respect, but seeing the section has to go in I desire to draw attention to it. For instance, these local inquiries are sometimes peculiar. The Minister says this amendment is not of any importance. I think he might very well accept it. What I desire is to have a reference in the Act to draw attention to the fact that the local inquiry, to be a local inquiry, must recognise the rights of people interested to come in and present their case. I do not want to put in the word "shall," because that is an obligatory thing. But if the Minister sees no objection to it, it is not very much in the way of printing, and it would lay down that a local inquiry being held, there is an obligation on the person holding the inquiry to hear any person interested in the case.
Recently on another question we were informed by the Minister for Local Government that this term "local inquiry" had a special technical significance, that "local inquiry" meant a formal inquiry conducted by a Commissioner sent down specially who would hear evidence. If the technical meaning of that word in Local Government law is to be adopted here, then I can understand the force of Deputy Hewat's amendment. But if it is intended that the Tribunal may send an officer from one part of the country to another, to make inquiries, then I think Deputy Hewat's proposition is rather too cautious and unnecessary. I suggest the Minister would be very well advised to consider whether, if under one Act the term "local inquiry" has a special technical significance, it will not have the same significance under another Act. If it is going to be held to mean a formal inquiry by a Commissioner—somebody having a commission from the Railway Tribunal—then, I think, Deputy Hewat's amendment is quite useful and desirable. If the Minister can assure us that "local inquiry" simply means an inquiry within a particular locality and has no special significance, then I would think Deputy Hewat unwise in pressing his amendment.
I am not proposing to press the amendment. I do not place as much importance as that upon it. But I ask for consideration of it.
If I might reply to Deputy Johnson, it was not the intention to have a very formal inquiry under this section. In fact, the difficulty I see about accepting Deputy Hewat's amendment is that it would give people power to turn up with a whole array of legal representatives and to turn what was intended to be a rather informal local inquiry into more or less a State process, with all the expense which that would involve.
That is not my intention.
Perhaps the Minister would consider the effect of the decision recently given, that a "local inquiry" was a formal local inquiry.
If it would suit, I would alter the words to "hold an inquiry locally."
I would suggest it would be an improvement.
That is the reason I pointed out a moment ago that the term "local inquiry" was a most ambiguous one. It certainly conveys a certain form of inquiry to some of our minds which possibly is not in the mind of the Minister.
I would guarantee to consider the amendment of these words "local inquiry" so as to make it clear what is meant is an informal type of inquiry.
I accept that.
Perhaps the Minister would consider putting in the words, "who in turn would report to the Tribunal." I think it should be made quite clear that the result of the local inquiry is not final.
The words of the section are "for report." Report to whom?
To the Tribunal.
It is unnecessary that these words should be put in.
What is in the mind of the Minister, I take it, is that this local inquiry should not be a large formal inquiry, and we want something in the section that would show that, to have it properly interpreted subsequently.
If Deputy Hewat withdraws his amendment now he can put it down again, but if it were to be defeated now, it could not be put down again.
I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment 41 not moved.
I move amendment 42:
Before sub-section (2) to insert a new sub-section as follows:—"The Railway tribunal or person holding an inquiry in respect of the purposes of Part I. of this Act shall take into consideration all objections to an amalgamation, absorption, or preliminary scheme, or in respect of the subject matter of the inquiry, which may have been lodged by any person or class or body of persons between the prescribed time and in the prescribed manner, and where any objections have been so lodged, shall hear any such objectors."
This amendment in the shape of a new sub-section is a reproduction of Section 9, sub-Section (6) from the British Railways Act, and the arguments I used, without avail, in support of amendment 38 apply also in this case. The Minister did not make it clear in the event of any disagreement on the part of a company or companies to come into the amalgamated company, intended under the Bill, whether such procedure on the part of the company or companies failing to come in under in the Bill should be in the nature of Private Bill procedure. I am sure the Minister knows and he should tell the House whether this is the course that will be pursued if companies stand out from the amalgamated company as defined in the Schedule of the Bill.
I fail to realise conditions under which Private Bill procedure would be necessary in the circumstances laid down by Deputy Davin.
Then it will not be the course to be adopted.
Sub-section 3 states:
"If the amalgamated companies fail to submit an agreed amalgamation scheme framed in accordance with the provisions of this Act on or before the said date, a scheme for the amalgamation of those companies shall be prepared and settled in accordance with this Act by the railway tribunal."
There is not merely no provision for Private Bill procedure, but no place whatever for providing Private Bill procedure under that sub-section (3) of Section 3. With regard to this amendment, Section 18 (1) (d) has, I think, very fully provided for any matter that is sought to be provided for in the amendment. It allows for the right of audience before the Tribunal, providing that any parties shall be entitled to be heard in person or by a representative in the regular employment of the party duly authorised in writing, or by counsel or solicitor. I do not know that the amendment now proposed adds anything to what is granted by 18 (1) (d).
I do not know whether the Railway Companies consider that they are sufficiently safeguarded in this matter. Of course, the whole scheme outlines very drastic proposals if they do not agree. In other words they are told, "Go and agree amongst yourselves, and if not we are going to make you agree, and we are going to put in operation a very arbitrary procedure." I think if this is adopted the railway company or companies objecting should be surrounded with as many safeguards as possible so that injustice may not be done. I do not know whether that is covered by Sub-section 3 which the Minister quoted, but obviously if such a case arises every possible facility should be given to the Railway Company or Companies objecting.
Yes, we are quite agreeable to give every possible facility, but surely we could not open the door to every disgruntled and dissatisfied person in the country to come forward and air his views upon railway finance and other matters like that, that are irrelevant to the course of that inquiry. I have read a good many comments on this Bill, and I certainly think that some of the Universities ought to establish a railway chair to instruct those people, who know so little about this Bill or about railways in general, upon these matters. The safeguards put down there, taken with what I have already said on the subject, are that the railways have a certain value coming into this scheme. That value must be weighed, irrespective of the general unification scheme that will be adopted when this Bill passes. But while affording every safeguard to the companies, and we have afforded every safeguard, we cannot. I think, admit a principle that would extend the deliberations of the tribunal over a very lengthy period, and hold up agreement when agreement is possible, and can be reached. Even in the case of the company standing out, it was very near agreement. Business men know that each side to a bargain always postulates something in excess of their actual demand. It may not be the case in certain houses where there are standard prices, but as a rule a man in business, if he knows his business, is prepared to give discount for cash. This is a case in which accommodation should be reached, and there are not such enormous ramifications in the case of railway amalgamation to justify the inclusion of this particular amendment in order to safeguard everybody's rights.
I want the Minister to understand I am not endeavouring to force the adoption of an amendment of this kind in order to put off even for an hour the operation of the scheme intended under this Bill, although as one who stands for nationalisation I do not agree with the principle involved in the Bill. I am not speaking from that point of view, but one has to be guided by what happened in England following the passage of a Bill like this. I wish, before the Bill goes through, to see that the terms of amalgamation or absorption shall be decided by a body altogether different in personnel, and that will have different qualifications from the proposed tribunal. The real work of the tribunal is that of a railway rates revisionary or advisory body. I am making it clear, so far as I am concerned at any rate, that I do not support the amendment, nor do I support anything in the nature of a loophole in the Bill which would put off for a day or an hour the idea that is contained in the Bill itself. If the two tribunals were to act in the way they acted in England following on the passage of the British Railway Act, one would be a tribunal of specially qualified men to deal with questions of amalgamation or absorption, and I intend to argue later on that a body of men that would be fitted for temporary work of that kind would not be the most desirable men to do the real or the most important work of the railway tribunal, which should really be confined to rates revisionary work. I hope I made it quite clear to the President that I am not supporting Deputy Hewat, who appears in this case to have quite a different thing in his mind to the idea in my mind when I spoke on this amendment.
I have to apologise to Deputy Davin for having made use of his amendment in a wrong spirit; in other words, I adopted an entirely different spirit to it to that which he intended. I also want to make it clear to the Dáil that I have no brief for any railway company, and I ask the President to accept that.
Certainly.
The only reason that I spoke on the amendment was that it seemed to me to raise the question. where a particular railway company or railway shareholders felt a sense of grievance, that they should not be subject to the arbitrary decision of anybody, without having a full and ample opportunity of stating their case.
Amendment put and declared lost.
Amendment 43 not moved.
I beg to move Amendment 44:—
At the beginning of Sub-section (2), line 5, to insert the words "in respect of the purposes of Part 3 of this Act only."
The amendment is intended to make clear what, I think, is the obvious intention, namely, that this power to make charges should apply in respect of Part 3 of the Bill where proceedings are in the nature of litigation between companies and people appealing against their rates or charges.
I take it that the amendment anticipates the passing of Deputy Johnson's amendment.
It does partially.
I think it ought to be left over then until Deputy Johnson's amendment comes on.
In any case, I would suggest that it was not intended to cover Part I of the Bill.
Do you mean that the section as drafted was not intended to cover Part I of the Bill?
I think not.
It either means that Deputy Johnson's amendment will pass with regard to the special tribunal, or in the event of it not passing, it would mean that a protracted inquiry would have to take place with regard to the amalgamation scheme, and that there would be considerable costs which would fall on the State.
Perhaps this matter could be discussed better later on.
The amendment can come up on Section 51. I think there is a point in the section.
Amendment, by leave, withdrawn.
I beg to move amendment 45:—
To add at the end of the section a new sub-section as follows:—
"The proceedings before the Railways Tribunal shall be officially reported and verbatim reports thereof shall be printed, numbered, published, and sold and may be cited, in the like manner as statutory rules are for the time being by law required to be printed, numbered, published, and sold, and permitted to be cited."
Unless we can feel that the official proceedings before the Tribunal are published and can be obtained, the value of publicity will be largely lost to the State, as well as to the railway companies. The absence of such a provision as this in the British Act created very great difficulties, and made the whole procedure a sort of star chamber inquiry. Obviously reports must be taken of the proceedings, and I suggest that when they are taken they ought to be published and put on sale at an appropriate price.
It appears to me that this would be a very costly proceeding. Very early in life I started amassing documents, and a tin of petrol disposed of the whole of them. In these cases, if you were to amass all the reports, in a very short time I think you would rival the Record Office. I would ask the Deputy what is the purpose that is to be gained? After all, in hearings before this tribunal, a question may come up as to whether 40s. a ton is too high a charge, or it may be asked what is the case for a reduction of it. It is before that particular tribunal itself that that question would be raised, and it is to the tribunal itself only that the matter is of consequence, if you except, perhaps, the people appearing before it. I should imagine that very few business men, having appeared before the tribunal, and remembering that the case cost them £5, £10, or £15, would buy this volume and put it in their library and say to their offspring, "This cost me £20 or £30." If the amendment were adopted the reporting of these proceedings would certainly be very expensive, and in the early stages I should say that the work of the tribunal will be very heavy, and, in consequence, the costs would be enormous.
Mr. O'CONNELL
Perhaps the point would be met if, instead of asking that the proceedings should be reported, the decisions of the tribunal should be recorded.
There would be a certain amount of difficulty even about that. Consider what it means. It means that not only the decisions of the pivotal cases would have to be reported, but that every petty little decision, which was merely a repeat decision following an earlier one, would have to be published. What I was considering in this section was this: that the Bill should take power to report the bigger cases and the decisions, but not to make it compulsory that all decisions, or as this amendment would have it, all reports of proceedings coming before the tribunal, should be reported. This amendment, if adopted, would be very costly, and no return to the public adequate to the cost involved would be provided. The amendment goes far beyond what is the practice with regard to ordinary court proceedings. There is no compulsion with regard to the printing and publication of proceedings before the ordinary courts of law, and, indeed, the whole future with regard to law reporting in the country is not yet quite clear. It would be better to leave this, as far as the compilation and the publication of such reports is concerned, over until such time as the general law as to reporting has assumed a more definite shape. All I could do would be to consider the question of taking power to report certain cases.
The President, in a previous speech, referred to the apparent ignorance that has been displayed by a number of Deputies in discussing this Bill.
No; I would like to correct that statement. What I said was comments outside, such as letters to the Press, but I never referred to Deputies.
I suggest it would be very useful, and perhaps advisable, for Deputies who have not expert advisers at their right hand side, to plead ignorance in regard to amendments or sections in a Bill for the purpose of getting very clear and definite information as to the real meaning of the sections.
There is, however, I am sorry to say, to the disadvantage of the trading community and the business people whom Deputy Hewat represents, a very great amount of ignorance on the part of traders in regard to railway administration and matters connected with it for which they have to pay very dearly. I think for that reason and in consequence of the setting up of the tribunal under this Bill, which will for the first time be composed of Irishmen, that the things that may happen there may concern the trading community and may be very useful to people, even those who only send small quantities of goods on the railways. From that point of view it would be a useful public service, and the Government would serve a useful purpose by agreeing to publish the proceedings of the tribunal, particularly as to questions concerning rates and fares. I think at the beginning of a new era, which will probably be opened up by this Bill, the cost will repay the State and be a particular advantage to the traders, who are in complete ignorance of many things in connection with railway administration.
Might I appeal to the Labour Party to accept the assurance of the Minister that he will take discretionary powers to publish anything in the nature of important proceedings, the result of which affects traders? I assure Deputy Davin that we will get all the information we require without a verbatim report of the proceedings. At least I hope we will. If Deputy Davin realised the amount of hard study he would have to go through to follow the proceedings of a tribunal in connection with an inquiry, I think he would be glad to go without that information and to get the kernel of the thing in a short summary.
I was not making any plea on behalf of the traders associated with the Chambers of Commerce, who have any amount of money at their disposal to pay for such documents. I am making a plea for the country trader, who has not the advantage of association with men of high repute like Deputy Hewat, and of the documents which an individual can get if he is lucky enough to be able to pay his fees to the Chamber of Commerce.
It does not cost me as much to belong to the Chamber of Commerce as it costs Deputy Davin to belong to his union.
Deputy Hewat may not get as good value. I am not quite satisfied that pivotal decisions to be published will be satisfactory. I imagine that all decisions at any rate ought to be printed and recorded, because what may not appear of much importance to-day may be questioned in six months' time and may be of great importance. As it will be a judicial tribunal almost supreme, the decisions of that tribunal ought not only to be recorded in the tribunal's own records but ought to be available to any person interested. I would think that decisions, no matter what the nature, ought to be officially printed and made available for the public.
I shall have to go further and meet the Deputy and say that I will consider the publication of all decisions and take discretionary power with regard to the publication of certain proceedings.
I accept that.
Amendment, by leave, withdrawn.
Question—"That Section 18 stand part of the Bill"—put and agreed to.
SECTION 19.
The central office of the railway tribunal shall be in Dublin, but, subject to the provisions of this Act and to the rules made thereunder, the railway tribunal may hold sittings in any part of Saorstát Eireann, in such place or places as may be convenient for the determination of the proceedings before them.
On this section I would suggest that the phrase in the Constitution regarding the position to be occupied by the Parliament House should be used. To specify that the central offices of the tribunal shall be in Dublin is unnecessarily restrictive. It might be stated "or such other place as may be decided by the Oireachtas." That will bring it into line with the Constitution, and one never knows what may happen. It may be decided to have this tribunal in Belfast.
Or in Cork.
Or in Kiltimagh.
Question—"That Section 19 stand part of the Bill"—put and agreed to.
SECTION 20.
(1) The determination of any question before the railway tribunal shall be according to the opinion of the majority of the members (including additional members, if any) of the railway tribunal hearing the case.
(2) Every decision of the railway tribunal shall be pronounced by the chairman or other members presiding on the occasion, and no judgment or opinion shall be separately pronounced by any other member.
I move to delete sub-section two of this section, because I think it is not fair that if there is a dissenting member of the tribunal he should not have an opportunity of giving the reasons for his dissent. They may be very valuable, especially as appeals will lie from this tribunal. I see no point in preventing him from expressing his opinion.
If this amendment were accepted it might be some satisfaction to the unfortunate man against whom the decision is given, and if I thought it would improve his case I would make him a present of it. What I would have done would be to try and convert the other members of the court to give a majority decision in my favour.
The character of the tribunal is to be borne in mind. There is to be one judicial member amongst the three, plus two members chosen from the panels, so that you have a court composed of four laymen and one judicial person.
I think the Minister hesitated yesterday or the day before as to whether the term "tribunal" comprised the additional members, whether it was not confined to three, and on the assumption that three persons constituted the tribunal, with the additional persons merely as assessors, then either of the three persons who constitute the tribunal proper should have the right to express his dissent from the other two, as in the case of the Law Courts. As this is to be given the authority of a Court of Record, the same procedure ought to apply.
It would mean in that case that we would probably have two speeches if the division were three and two. They might not disagree for the same reason, and then each would be entitled to make a speech. That would appear to me to damage the decision given by the judge, and one can anticipate a case in which the Chairman, having to give the decision of his two colleagues which would be against his own, would have to make their speech first and his own afterwards.
The President has met the point. The Minister in charge of the Bill has expressed the view that the tribunal will consist of three persons. If that is the interpretation, then the President's last statement does not follow. If the tribunal is strictly the three original members, then those members should have the right to dissent from the decision of the majority. I can see that if there were a number of additional members there might be a difficulty arising from too many dissentient voices, but I think, if the opinion of the Minister is right, that the tribunal strictly is to be understood as meaning the three persons, then this amendment ought to carry.
Clause 12 definitely states and makes clear that the tribunal, as such, is confined to three individuals. The general panel that is established under Clause 16 is a small body from which two or more, or perhaps less than two persons, may be drawn to assist the tribunal in its decisions in a certain set of circumstances. They are not the body with authority, and the authorised body is clearly confined to the three people mentioned in Clause 12 of the Bill.
The point made by Deputy Johnson has not been stated quite as I remember it. In dealing with Section 15, on an amendment by Deputy Cooper, I stated that it was first thought that the phrase "railway tribunal" would have been defined and accepted as meaning only the Chairman and the two ordinary members, but, inasmuch as it was not clear that it excluded others, I accepted the principle of Deputy Cooper's amendment and said I would insert words so that the section should not apply to additional or temporary members of the tribunal. This makes it clear that the words "railway tribunal" shall not be so limited as to make it apply to the three. The railway tribunal, for all purposes other than amalgamation and absorption, will consist of five members.
If that is so, why does not the Minister insist on all the members of the panel disposing of their railway shares, or other interests in railways, in the same way as it is laid down that the three permanent members should dispose of theirs once they are appointed? If they are all on the same basis, under a set of circumstances, they should be all in the same position so far as holding shares or anything else like that is concerned. You lay down that the three permanent members should dispose of all interests in railway stocks, but you do not do that in reference to the panel. You have accepted an amendment from Deputy Cooper whereby members of the panel are not to be in the same position as members of the tribunal so far as these are concerned.
I think the words in Section 16, sub-section (6), "shall exercise all the powers and functions of a railway tribunal," make it clear what the position of the panel is.
Sub-section (6), as I read it, does not prevent the members of the panel who may be added to the tribunal from holding shares in a railway company. I am merely making a point to show there is a considerable difference between the three permanent members and any other members who may be drawn from the panel to assist them in their work as a tribunal.
That is the reason.
I do not think it matters whether there may be three or five members of the tribunal with regard to the matter we are at present discussing, because, in Section 12, the tribunal is to be regarded as a court of record. Now, in the High Court, no matter whether there are three or five judges, as the case may be, and there sometimes are, especially in England, the dissentient judges have the right to, and very often do, give grounds for their dissent, and the decision is put on record that the majority consisting of so-and-so were in favour of a certain interpretation of the law, and that a minority dissented. As this is to be considered a court of record, I cannot see why the same procedure should not be adopted.
Amendment put.
The Committee divided: Tá, 13; Níl, 47.
Tá
- Seán Buitléir.
- Maolmhuire Mac Eochadha.
- Tomás Mac Eoin.
- Risteárd Mac Fheorais.
- Pádraig Mac Fhlannchadha.
- Tomás O Conaill.
- Aodh O Cúlacháin.
- Liam O Daimhín.
- Eamon O Dubhghaill.
- Domhnall O Muirgheasa.
- Tadhg O Murchadha.
- Pádraig O hOgáin (An Clár).
- William A. Redmond.
Níl
- Earnán Altún.
- Seoirse de Bhulbh.
- Próinsias Bulfin.
- Séamus de Búrca.
- John J. Cole.
- Bryan R. Cooper.
- Louis J. D'Alton.
- Máighréad Ní Choileáin Bean Uí
- Dhrisceóil.
- Patrick J. Egan.
- John Good.
- John Hennigan.
- William Hewat.
- Connor Hogan.
- Seosamh Mac 'a Bhrighde.
- Liam T. MacCosgair.
- Séamus MacCosgair.
- Pádraig Mac Fadáin.
- Pádraig Mac Giollagáin.
- Seán Mac Giolla 'n Ríogh.
- Eoin Mac Néill.
- Seoirse Mac Niocaill.
- Liam Mac Sioghaird.
- Liam Mag Aonghusa.
- Pádraig S. Mag Ualghairg.
- James Sproule Myles.
- Martin M. Nally.
- Peadar O hAodha.
- Mícheál O hAonghusa.
- Criostóir O Broin.
- Seán O Bruadair.
- Aodh O Cinnéidigh.
- Partholán O Conchubhair.
- Séamus N.O Dóláin.
- Peadar S.O Dubhghaill.
- Pádraig O Dubhthaigh.
- Eamon S. O Dúgáin.
- Seán O Duinnín.
- Donchadh S. O Guaire.
- Aindriú O Láimhín.
- Séamus O Leadáin.
- Fionán O Loingsigh.
- Pádraig O Máille.
- Domhnall O Mocháin.
- Séamus O Murchadha.
- Seán M. O Súilleabháin.
- Caoimhghín O hUigín.
- Liam Thrift.
Amendment declared lost.
Question: "That Section 20 stand part of the Bill"—put and agreed to.
I move to report progress.