Dáil Éireann debate -
Friday, 4 Mar 1927

Vol. 18 No. 14

ORDUITHE AN LAE. - ORDERS OF THE DAY. INTOXICATING LIQUOR BILL, 1927—THIRD STAGE (RESUMED).

SECTION 22. AMENDMENT 55.

Captain REDMOND

When the House adjourned last night I had endeavoured to show that the Probation of Offenders Act was applicable in law at present to licensing cases, and I had quoted the most recent case upon the subject. I also drew the attention of the House to the provisions of the Probation of Offenders Act, which, briefly, are these—that under three separate and distinct heads a judge may exercise his discretion. It has been suggested, and I cannot conceive the suggestion serious, that the Probation of Offenders Act does not now apply. In passing, may I ask if it does not apply, what is the purpose of setting down a section of this Bill to repeal it?

I draw the attention of Deputies further to the fact that the offences to which this Probation of Offenders Act applies are those other than trivial ones. Hence, as far as I can see, the combined result of the Minister's present amendment, plus his proposed repeal of the Probation of Offenders Act, will limit the discretion in future to trivial cases, and extenuating circumstances can in future, under this proposal, only be taken into account in regard to trivial offences. The net result of this is, first, that it gives the discretion in regard to trivial offences, a gíft which personally I consider, and which I hope to show later, to be of very questionable value; and, second, it takes away already existing benefits under the Probation of Offenders Act in other cases. In fact, I think it would amount to taking something for nothing. Further, may I point out that if this amendment, as it is at present before the Dáil, is carried, the wording of it, undoubtedly, must, according to all the canons of legal construction of Parliamentary statutes, govern the construction of similar words in a subsequent section?

It is proposed in Section 22 that there shall be an appeal to the Circuit Judge, and that the Circuit Judge, if satisfied that by reason of extenuating circumstances such conviction ought not to be recorded on such licence, can make an order declaring that such conviction shall not be recorded. I say that if extenuating circumstances are defined as they are proposed to be defined by the words in brackets in this amendment to this section, which confine them entirely to trivial or technical offences, that definition will also govern Section 22; and the proposed appeal to the Circuit Judge on the question of endorsement will then have no effect except in regard to extenuating circumstances, as defined in the earlier section, which means trivial or technical offences. In effect, therefore, the Minister's proposal in regard to this section is actually taking away some of the benefits which he proposes to confer by Section 22. It proposes actually to whittle down the rights already given under that section to the Circuit Judge; and under Section 22 there was no limit proposed to the judge's discretion in regard to the nature of extenuating circumstances. Now, if this section passes as proposed to be amended by the Minister, there will be a limit according to the construction placed upon the meaning of the words "extenuating circumstances" in his proposed amendment.

We are at present engaged in passing an Act of Parliament, the wording of which will have to be construed by the courts, and when it is proposed that certain discretion shall be given in regard to certain types of cases only, and those types of cases are mentioned or designated by certain terms, one has to inquire into the legal meaning of those terms. What is the legal construction at present obtaining of the term "trivial"? Is it suggested that any offences under Schedule 1 of the Courts of Justice Act, 1924, which are the endorsable offences referred to, are trivial, or could be construed as such?

Now, the offences I have referred to contained in Schedule 1 of their nature must be, and up to this have been, regarded as very serious offences, so much so, that they have been so far made compulsorily and automatically endorsable. They include permitting drunkenness on the premises, keeping disorderly house, harbouring constables, permitting gaming, selling or exposing for sale and so forth, drinking during prohibited hours and also refusing to admit a constable. Is it suggested that any court would construe those offences as in their nature trivial?

Now, there are numerous cases and it would be impossible for anybody to foretell what number of the nature of such cases might arise which would not be considered trivial, but which would be covered by the existing Probation of Offenders Act. Take the case where a person is on licensed premises and he is there against the expressed instructions of the licensee; but he is permitted to be there by the action of the servant who directly disobeys his master.

Under the present law if the Courts were satisfied with the defence made by the licensee, that he had given instructions and that he had done everything possible to see them carried out, they would have power to exercise their discretion even though the offence in itself could never be regarded as a trivial one.

Similarly if an employee were to act from any motive, dishonestly or negligently; say he was to sell liquor for consumption under the standard required by law, and he was to do this expressly against his master's instructions; those extenuating circumstances could be considered under the Probation of Offenders Act, though the case itself and the nature of the offence was undoubtedly a serious one. Suppose a servant was under notice of dismissal, and from some motive of spleen or otherwise, committed a gross breach of the law; suppose in the absence of the licensee, through illness, the servant was to open the licensed premises for the sale of intoxicating liquor on Christmas Day or St. Patrick's Day, that undoubtedly would be a gross breach of the law and a serious offence. But the judge now under the Probation of Offenders Act could take into consideration the extenuating circumstances surrounding it, namely that it was done without his master's knowledge and from motives otherwise than those of the licensee.

I think it would be well to give the Dáil some idea of what, up to this, the Courts have considered to be serious offences. The leading case upon the question is one known as Glasgow against O'Connor. This was a case the incidents of which occurred in the town of Bantry, in the year 1910. A local licensee, a follower of Mr. Wm. O'Brien, then M.P., thought to show his affection by displaying a green flag from his publichouse. He was duly summoned and under the Probation of Offenders Act the then magistrates exercised their discretion. They held that in view of the fact that there was a public meeting, and probably in view of the fact of the popularity of Mr. O'Brien in the neighbourhood, that there were extenuating circumstances. But there was an appeal. The late Lord Chief Baron Palles, probably one of the greatest exponents of common law in his day in any of these countries. held that this was a serious offence, and one of the reasons incidentally that he gave the decision that it was a serious offence was that the flag that was displayed was not the ordinary emblem of the publichouse nor was it an emblem of the order of Freemasons or Friendly Brothers, both of which would, by the Act of 1836, have been exempted. The Lord Chief Baron held that the offence was serious and he said that if extenuating circumstances had to be relied upon to make the matter itself a trivial one, they would have to be stated and proved to be other than those which appeared to exist. But if a similar case came up to-day, under the Minister's present amendment, there would be no question of the exercise of this discretion at all, because we have it now decided that this displaying of a flag in itself was a serious offence and the Minister proposes to limit the discretion only to those cases which are of a trivial or technical nature.

I give these few illustrations to show the limitations that the Minister is proposing shall be placed upon the present existing discretion and further to show that he is not really, in effect, carrying out what would purport to be the intention of the expression he used upon the occasion of the Second Reading. I have been placed in a somewhat awkward position because I had an amendment of my own down and I do not know whether the Minister, in view of the course of the debate, has taken the trouble to read that amendment. My amendment is as follows:—

To delete all words after the word "shall" and to insert "to be recorded on such licence, unless the Justice by reason of the existence of extenuating circumstances"...

And then the following words occur, which I believe the Minister must have overlooked from what he said yesterday:

"in connection with the offence shall otherwise direct."

In acceding to the course suggested by you, sir, I have been willing to move an amendment to the Minister's amendment, which is to omit the words "(which shall relate only to the technical character or trivial nature of the offence)." But to carry out the real purport of my amendment within those brackets I should insert the words "in connection with the offence." That will show the Minister that he was not quite accurate if he purported to describe my purpose as wishing to cover offences of the nature he described yesterday, to cover. I should have said, extenuating circumstances such as he described yesterday, such as the question of the poverty of the licensee. That was never my intention. My amendment does not include this. My amendment expressly says that extenuating circumstances must be in connection with the offence, and it is only in that regard that I am asking for the consideration of the extenuating circumstances. I do not suggest that the question of sentiment should be a matter for discretion by way of extenuating circumstances. I do not put forward a plea that because a man happens to belong to a certain family, or that he has connections in the district, or because he is in bad circumstances, or because he did this or that in the past, that discretion should lie. Nothing of the kind. My suggestion is that extenuating circumstances should be only taken into account in connection with the actual offence. It is interesting in this regard to recall the fact that elsewhere they have made similar provisions. Nobody can accuse the Legislature of Northern Ireland of being particularly lenient towards the licensed trade, but in the Act, entitled "Intoxicating Liquor (Northern Ireland) Act, 1923,." Section 8, which deals with the forfeiture of licences on the recording of convictions, says:

"Such conviction shall be entered in the proper register of licences, and shall be directed to be recorded unless the court by whom the conviction has been made is satisfied that, by reason of the existence of extenuating circumstances in connection with the offence, the conviction ought not to be recorded."

I have practically taken my amendment word for word from the North of Ireland Act, and let me remind the House once again, that the North of Ireland Act in that respect is practically the same as the Probation of Offenders Act. If the Minister desires to carry out his real intention, as expressed in his statement on the Second Reading, namely, that the District Justice shall, unless having regard to the attendant circumstances the offence is of a trivial or technical character, endorse the licence, then the proper method for him to do so is to make it clear that the extenuating circumstances shall not only refer to matters of a trivial nature, but may refer to serious matters, in order by their presence to render them trivial.

I think there is a very serious and distinct difference. The extenuating circumstances in both of these Acts which I have quoted cover both trivial and non-trivial offences, but do not cover extraneous matters, such as those referred to by the Minister yesterday, namely, the poverty of the licensee, or any matters unconnected with the actual offence. That also is my purpose; and, therefore, I propose that, instead of these words which the Minister has inserted in brackets, limiting the discretion to trivial and technical offences, there should be increased words of the nature, or of the purpose, which I have described, namely, "in connection with the offence," thereby making certain that this discretion shall not be extended to the matters which are extraneous, but shall be confined wholly and solely to the circumstances surrounding and connected with the actual offence.

If the Minister does not agree to take that into consideration, I say that his amendment is practically worthless. It is worse than worthless from the point of view of existing licensees; because, taken in conjunction with his proposed repeal of the Probation of Offenders Act, it will put the licensee in the position that in future extenuating circumstances surrounding a serious offence may not be taken into consideration, but only extenuating circumstances in regard to what has been described as a trivial or technical one. That also, taken in conjunction with the wording of Section 22, means that an appeal in future will merely be an appeal on the question as to whether there were any extenuating circumstances in regard to these two limited classes of cases.

I referred yesterday to the judgment in Gilroy v. Brennan, which governs this question, and I quoted some statements of the Court; but, before I sit down, I would like once more to refer the Minister to a statement by the counsel who was appearing for the State, in which he said:

"Extenuating circumstances, to be the basis of application of the Act, must be circumstances connected with the actual offence; and any other circumstances, the licensed premises or applicant, cannot be considered."

That is also borne out by the President of the High Courts, Mr. Justice Sullivan, when he says:

"There are no circumstances connected with the commission of the offence (that is, the offence in question in this case) which could possibly be regarded as extenuating circumstances."

These two statements go to show that, under the Probation of Offenders Act, it was only circumstances which were connected with the offence that could be taken into consideration, and not circumstances of poverty or otherwise, mentioned by the Minister yesterday. So much for the Probation of Offenders Act. Similarly, under the North of Ireland Act, it is only such circumstances in connection with the offences that can be taken into consideration, but there, again, it is not limited to trivial or technical offences.

My proposal is, therefore, that we should follow out what has been the law under the Probation of Offenders Act, and continued in the North of Ireland Act, 1923, namely, that the extenuating circumstances should be wholly and solely in regard to the nature of the offence, but that they should be applicable to an offence which of itself would otherwise have been a serious offence. I hope the Minister will be able to follow the distinction that I have drawn, because it is a very serious one. If this proposal of his is merely to give discretion for trivial offences, it wipes away existing rights. If it is to give discretion to judges to consider extenuating circumstances or, as the Minister himself puts it, attendant circumstances, in connection with any of these endorsable offences, it will be merely carrying out, to my mind, not only the existing law, but also the real intention, as I understood it, expressed by the Minister upon Second Reading.

It may seem that I am somewhat labouring this question, but it is a matter of the utmost gravity to those who happen to hold licences in this country. All this legislation has tended to a sense of insecurity as to the value of licensed premises. Everyone knows that in the past, banks and others advanced money on the security of licensed premises. Everyone knows that it was generally understood that there was a certain amount of fixity of tenure there, and it cannot be stressed too much what the effect of proposals like this would have upon the security of such property in the future. The serious nature of an endorsement is that, after two endorsements, and the prospects of another one, the licence is practically dead. On the first endorsement, at least one-third of the value of the premises is gone—in fact, more than one-third; because, once the first endorsement is there, it only requires two more endorsements actually to extinguish the licence.

I appeal to the Minister on the grounds that I have already stated— that I am not suggesting that offences of the character which he described, and surrounded by extenuating circumstances of the character which he described, such as those of poverty and otherwise, should be the subject matter of discretion; but I am suggesting that all these cases which are endorsable are in themselves, and have been held to be, serious cases, and that, as a result of that, unless he makes a provision whereby extenuating circumstances can be taken into consideration in regard to serious cases, it means that the Courts must hold that offences of the character I have mentioned must result in the endorsement of the licence. That being so, I would earnestly ask him to reconsider the insertion of such words as I have suggested, which will in no way ask him to depart from the proposal he made on Second Reading, but it will, in my humble judgment, be the best and fairest means of carrying the proposal into effect.

AN CEANN COMHAIRLE

Amendment 55, by Deputy Dolan, Parliamentary Secretary to the Executive Council, to insert a new section before Section 22, has been moved. Deputy Redmond has proposed an amendment to the proposed new section. That amendment is:

"In lines 5 and 6 of the proposed new section, to delete the words in brackets, ‘which shall relate only to the technical character or the trivial nature of the offence,' and substitute for those words the words, ‘in connection with the offence.'"

Professor MAGENNIS

Deputy Redmond is somewhat anxious lest it should be thought that the House considered he overlaboured his point. I think we are all in agreement with him that not merely the proprietary, but the public, interests involved in this question are sufficiently serious to warrant the fullest and closest consideration. To my mind, now as on the occasion of the first piece of liquor legislation introduced by the Minister, the ideal way of dealing with the question was that provided in Schedule 1, that is the drastic treatment of a compulsory endorsement. The original "shall" left no discretion whatever to the District Justice. It precluded him from being subjected to any local pressure, and it shut out the possibility of influence being attempted to be brought to bear on him in his area. It left him free and unfettered in the exercise of his judicial function in determining the law. That imperative "shall" served a very useful purpose. It awakened the conscience, if I might say so, of the community in regard to these offences, and the very fact upon which Deputy Redmond dwelt with the special emphasis in his peroration instead of constituting a plea for pity, or commiseration, or sympathy, affords an excellent justification for the rigoristic and Draconian legislation originally imposed, because the first purpose is to supply a deterrent. The knowledge that not only was there a heavy fine for one of these offences, but that an automatic endorsement thereupon ensuing deprived the licence of an enormous part of its saleable value, so that three consecutive endorsements cancelled the licence, provided a stimulus where stimulation was necessary among licensees to look after the conduct of their houses and to see to it that the law was strictly observed. Now that that effective purpose has been served I am not so strict or so rigid as to refuse to consider the case put up by the licensed trade for some regard to the possibilities of injustice that might arise in pursuance of our ideal. I have here a copy of the case submitted to the Minister on behalf of the trade. If you will permit me I will read the following portion of that statement:—

"We ask that the law under this head be restored to what it was prior to 1924. So much has already been said as indicating the injustice of the existing law that it is not necessary to labour it. Automatic endorsement stands self-condemned."

I need not say, parenthetically, I do not subscribe to that statement.

"The difficulties in which Justices have found themselves, and are finding themselves, when in very many cases they have to invoke the aid of the Probation of Offenders Act is the best commentary on the inequity of the existing law."

There was a loophole which the framers of the previous legislation did not foresee, that under the Probation of Offenders Act the compulsory "shall" would be evaded. The conclusion of this is:—

"But to put every trader in the same category—and practically every class of offence regardless of its veniality or gravamen—is in a difficult business like ours, unreasonable and unjust. We need not be told the law is made to be kept. We are well aware of it. But it should be a just law; and we aver that the existing law of automatic endorsement is not a just law."

In certain conceivable circumstances it might operate harshly against particular licensees, but I submit that the real way to approach the matter is through a consideration of the offences set out in Schedule I. Such a study, I submit, will show what Deputy Redmond has in mind when he laid stress upon the question of triviality. He entered into a very ingenious and somewhat persuasive argument in respect of extenuating circumstances. We all know that whatever meaning the phrase "extenuating circumstances" may have in popular speech, it is a legal technicality. In French law it is so highly technical that it is misunderstood by practically ninety per cent of the English-speaking world, who ridicule the verdict of a jury in finding extenuating circumstances as a technical finding. To those not alive to the real significance of that verdict it seems ludicrous. Extenuating circumstances for the purposes of a court must bear upon the offence in question. That the accused is poor and that to endorse his licence is practically to involve his speedy bankruptcy is not an extenuating circumstance in any other than the popular meaning of the phrase. To be a circumstance that is extenuating it must extenuate the offence. So far, I think Deputy Redmond is with me. He draws a very fine distinction, however, between an offence that is trivial in itself—he will pardon me for putting it my own way—and an offence which has gravamen and is a serious offence in itself, but that might be rendered trivial in the view of the District Justice because of extenuating circumstances. But in my understanding of his case, as against that for the Bill, what weighs with him is that he fears that the official amendment would force the Justice to treat the clause as applying exclusively to the offence that is trivial in itself, which would, in practice, have the effect of shutting out from his discretion altogether the consideration of genuine extenuating circumstances. As I read the official amendment, it has not the effect—I say this with all respect to Deputy Redmond—that he attributes to it:—" ... a conviction for which is required by this Act to be recorded on such licence such Justice may, if satisfied that by reason of extenuating circumstances (which shall relate only to the technical character or the trivial nature of the offence)." As I read that qualification it means that the extenuating element must arise out of the offence, in regard either to its technical character or in regard to what becomes, in the eye of the Justice, of trivial character because of the extenuating circumstances.

Captain REDMOND

If that could be made clear in the amendment I would accept it.

Professor MAGENNIS

So that it seems to me that, rightly considered, there is merely a verbal difference between the clause and the Deputy's amendment. A meticulous pressing of these words I have quoted might justify the prosecutor in a court in maintaining that what was raised as an extenuating circumstance was that the offence was only a trivial one, or that the offence was only a technical one. But let us try it in the concrete, by considering the cases that are ruled by the part of the clause under discussion —permitting drunkenness or violent conduct on licensed premises and supplying intoxicating liquor to disorderly persons, and, later on, supplying intoxicating liquor to constables. Suppose that A.B., who is a licence-holder charged with this offence, is able to show that, though intoxicating liquor was supplied to a man already drunk, or was supplied to a constable on duty, it was done in express violation of the rules that he laid down for his employee, or that the employee, as in the case suggested by Deputy Redmond, was, through malice, trying to injure his employer because the employee was under notice of dismissal, surely where, as in the official amendment, the District Justice is allowed the exercise of his discretion, he would regard that, though a very serious offence if the licensee were culpable without any redeeming feature to the transaction, as having become technical in view of the facts disclosed. It seems to me that that is the spirit of the official amendment, that the intention is not to penalise an innocent member of the trade merely because he is victimised by an unfaithful servant. Then, as regards permitting drunkenness, there is a somewhat amusing brochure circulated to Deputies by a member of the medical profession who, like myself, is very far from his base. He says:—

"It is a matter of common knowledge that alcohol, even in small quantities, affects individuals in two different ways. In one the muscles of motion are affected, and so the gait may become unsteady; in another the muscles of articulation are affected, and so the speech becomes impaired. Now, contrast the conduct of the Irish constable and the conduct of the English constable under similar circumstances. The Irish constable, seeing a man somewhat unsteady in his gait approach a publichouse, moves some distance away—"

You will observe, sir, that in the view of this eminent practitioner, all our Guards are one species and behave according to type—

"allows the man to enter the public house, gives him just sufficient time to steady himself at the counter, to order in an ordinary normal voice and have placed before him the drink, enters and summons the licensee for supplying drink to a drunken person and summons the man for being drunk on licensed premises. The English constable pursues different tactics. He awaits the man and reasons with him in a humane way and prevents him from entering the publichouse. If the Irish constable had been taught and trained to act in a similar way statistics for drunkenness in Ireland would have been lowered considerably."

When I read that just now I remembered learning in my earlier days a passage in the catechism—"Should children consult their parents on their intended marriage?" And the answer is: "Yes, and be advised by them according to reason and religion." The new reform suggested on behalf of the trade for dealing with those cases of breaches in the licensing laws is that the Guards should take on the functions, fraternal, moral and religious, of exhorting to better ways the man who is already on the point of entering a publichouse for the further drink, which ostensibly he could not carry.

A DEPUTY

That is an excellent suggestion.

Professor MAGENNIS

I am afraid the Deputies who would regard that as an excellent suggestion would be the very first to attack the estimates for the cost of the huge forces of the Gárda Síochána. In the absence of a policeman like a guardian angel, for every citizen, it seems to me that drastic legislation is the only alternative, pending education, moral and otherwise, and the diffusion of a better sense of conduct amongst the population. There is notoriously a difficulty in regard to the question of detecting age in respect of other offences of a more serious nature under other laws. It is really the fact of that extreme difficulty that it is impossible at times to know whether the applicant for the sale of liquor is or is not of the requisite age. If the defence could be put up that there was a difficulty, and the District Justice was satisfied that the difficulty was a real one, that would be a trivial offence. I do not agree, therefore, with Deputy Redmond that the only possible reading of the official amendment is one that would deprive a District Justice of the discretion sought to be allowed him in the Bill but perhaps the Minister would consider an alteration in the drafting so that an ingenious lawyer would have no opportunity for attempting to pick holes in the terms of the Bill when it becomes an Act.

Mr. O'HIGGINS

It may be merely my prejudice, but I always think that Deputy Magennis is more effective when supporting proposals of the Government, or of a particular Minister, than when he is in criticism. I think that possibly one explanation of that may be that it takes a greater degree of conviction to bring him to his feet in support of a Government proposal than in antagonism, and people are generally more effective according to the measure of their convictions. The Deputy traced quite soundly and quite accurately, the history of this matter. There was, in 1923 or thereabouts, an exceptional laxity in the licensed trade, as in very many other phases of our national life, and exceptional laxity can be corrected only by exceptional stringency. Therefore the Oireachtas thought fit to pass in 1924 an Act making endorsement mandatory and compulsory on conviction of specific offences and even saying than an appeal from that, if the trader thought fit to appeal, must go to the High Court and that if the High Court felt that one of the offences which led to the three endorsements was trivial, then they might order that endorsement to be struck off the register.

We can afford to relax somewhat from that rigidity and my proposal in the Bill was to continue the mandatory endorsement by the District Justice but to allow the appeal to lie henceforth to the Circuit Judge who, if he considered there were extenuating circumstances, might order the deletion of one endorsement without quashing the conviction. He might say:—"The offence undoubtedly took place, but there are extenuating circumstances"—which he is obliged by the Section to set out in his order, and he may make an order that the endorsement be inoperative. Now we are asked: "Are you going then to insist on the District Justice endorsing the licence in every case even where the offence is of the most trivial and the most technical character?" and it was around that that the clamour was raised. Were we going to send a man to the Circuit Court Judge to appeal in every case even where the offence was one regarding which any commonsense fair-minded man would agree immediately that endorsement should not be the consequence—a purely technical case, the clock two minutes wrong, an accident outside the door after prohibited hours and a need for stimulants. I said on Second Reading that I would bring in an official amendment on Committee to meet that trivial or purely technical case and now the ground has shifted. We are told that we must in fact meet every old case, that the broad phrase of "extenuating circumstances," on which the Justice was to decide, would be adequate for non-endorsement. I am not prepared to meet that case. The words in the amendment are deliberately limiting, studiously limiting, but I do draw Deputies' attention to the fact that the amendment is not in substitution for Section 22, but in addition to Section 22.

Captain REDMOND

I am aware of that.

Mr. O'HIGGINS

Section 22 is less limiting in its effect than the amendment—in other words, there is some wider measure of discretion left with the higher Court than is left with the District Justice.

Captain REDMOND

I can see that that may be the intention, but I suggest that if that intention is to be carried out it must be made very clear in Section 22, because the well-known maxim of law must be observed in this as in other cases, that where a term is defined in a previous section of an Act— actually defined and limited—and where that term is referred to in any subsequent section, unless there is something to show that that term is wider in the subsequent section, the same construction must be placed upon it. That is incontrovertible in the construction of the Statute.

Mr. O'HIGGINS

The Deputy says where the term is defined there is no subsequent altered definition.

Captain REDMOND

Well, limited by the words in practice.

Mr. O'HIGGINS

So that where a limitation of a term occurs anywhere in an Act, if that term is used thereafter the limitation is to be held to apply.

Captain REDMOND

I say that it should.

Mr. O'HIGGINS

I beg leave to disagree. The limitation applies where it is inserted.

Captain REDMOND

I am glad to have the Minister's opinion.

Mr. O'HIGGINS

That is the Minister's opinion.

Mr. T. O'CONNELL

Where does the layman come in between the lawyers?

Mr. O'HIGGINS

The Deputy talked a good deal about the Probation of Offenders Act, and in that connection Deputies had better be clear. The Probation of Offenders Act is not merely a matter of a first offence. There was an Act in 1887 called the First Offenders Act. That Act was repealed by the Probation of Offenders Act passed in 1907. The Probation of Offenders Act is not limited in its application to a first offence, but may be applied in the case of any prosecution that is brought. I submit, whatever the actual legal position may be, that that Act was not meant for the probation of publicans. It was meant to enable persons, youthful persons or possibly adults, who were unfortunate, who were tempted beyond their power and who fell into crime, to be dealt with leniently by the Court if it was considered that there was hope of reform. But the application of the Probation of Offenders Act to a licensing prosecution is an absurdity, an anomaly that ought to be removed.

In the memorandum of the trade it is stated—and I want Deputies to attend particularly to this—that the Oireachtas, by passing the Act of 1924, compelled certain Justices to resort to the Probation of Offenders Act Examine that and we get to the point I was discussing the other evening, when Deputy Johnson suggested that minimum penalties were an infringement on the judicial discretion. He did not object to maximum penalties, I noticed. But this application of the Probation of Offenders Act to licensing cases after the Oireachtas had passed the Act of 1924, was in fact, an interference with policy by those who applied it. It was the Justice pitting his view against the view of the Oireachtas.

Captain REDMOND

Are the Justices to administer policy or law?

Mr. O'HIGGINS

I heard the Deputy very patiently, and he spoke at great length—I will be much more brief. The Oireachtas decided as a matter of policy that conditions in the country were such as to require that the consequence of a breach of certain provisions of the licensing laws would be an endorsement of the licence. Certain Justices—not very many—apparently took another view, and they applied, not infrequently, the Probation of Offenders Act to a licensing case where the evidence was so cogent as to make conviction a certainty. They could not dismiss the case, but they applied the Probation of Offenders Act, and the matter ended. I think it is not unreasonable, when giving to the Court of summary jurisdiction, to the District Justice, a discretion to meet the trivial, the technical case, to say at the same time that the Probation of Offenders Act shall not apply to a licensing prosecution. So much for that.

Section 22 is less limiting in effect than this amendment, which applies to the lower Court. Let there be pleaded that there are extenuating circumstances of the kind that Deputy Redmond suggests are not covered by the official amendment dealing with the District Justice's Court, but on this question of the erring, the wicked attendant, who against the wishes of his master breaks the law, let us be careful not to attack the whole agency conception in law. Qui facit per alium facit per se. The employee is, in fact, an emanation of his employer and must be so held. An employer must accept responsibility for the act, of his employees, and I think the case would require to be very strong indeed before a court would be warranted in holding that that should not be the position, that that should not be the result. If that is to be pleaded, I would prefer that it would be pleaded in the Circuit Court. The Deputy developed his case, and I was not impressed by it. I am not prepared to concede a fraction of an inch of the amendment as it stands on the Paper. It is my limit. If the Dáil thinks fit to take another view, then we must regard that as a matter of confidence upon which we will resign. It is not proposed at any rate by the Government to revert to the position that the District Justice would be quite free, according to his own individual view of the merits of the case, to decide whether a fine or endorsement would be the consequence of a conviction in those cases.

Dr. HENNESSY

From the concluding remarks of the Minister, I doubt if there is much to be gained by continuing this discussion. Nevertheless, I think it is due to Deputies in this House to record their views on a question of the discretion allowed to District Justice. I do not appeal to the Minister to modify his decisions, in any way, where there is what he called a full-blooded offence committed but I think there are many offences, perhaps serious if committed in a full-blooded way, that should be regarded as falling into a minor category, if committed unconsciously. The discretion the Minister gives, by way of parenthesis, is illusory. I am not a lawyer, nor am I, like Deputy Magennis, a metaphysician. Deputy Magennis has seen some virtue in this parenthetical discretion that I doubt the lawyers will be able to see. I am inclined to agree with the version of it given by Deputy Redmond.

Professor MAGENNIS

On a point of explanation, may I assure the Deputy that I spoke as a member of this House? The fact that, outside this House, I earn my living as a Professor of metaphysics does not. I submit, necessitate that I am "metaphysicianing" all the time.

Dr. HENNESSY

I may inform Deputy Magennis that we are all very glad to hear some of his metaphysics. They are quite a contrast to the usual line of debate; they are very instructive; we all benefit by them, and they lead, frequently, to a new line of thought. As I was saying, the discretion given to the District Justice is illusory. The appeal to the Circuit Court is also worthless because the definition of "discretion" given in the case of the District Justice will I presume also govern the Court of Appeal.

AN CEANN COMHAIRLE

No, Section 22 governs the other court. Amendment 55 is a proposed new section dealing only with the District Court. Section 22 deals with the Circuit Court. They are two separate things. The limitation, here, is not in the other section.

Dr. HENNESSY

I must say it is very awkward to have a definition of "discretion" in any section of the Bill which does not apply to all sections. I am not a lawyer, but I say that much, and I believe it will lead to a good deal of trouble. I think it is a poor compliment to the District Justices to ham-string them in this way as regards discretion. They occupy the position of civil servants, in a certain sense, and they should be thoroughly independent. If they are not to be trusted to administer the liquor laws what can we trust them with? There are other things as serious for which they would be as liable to come under local pressure as they would in the liquor laws, and if they were to submit to this pressure I think it would shake all our faith in their administration. Again, we might consider the discretion that is allowed in other places, in the case of the High Court when the appeal was to them. That discretion was in the 1924 Liquor Act. The Judge was to exercise discretion "Having regard to (a) the nature and circumstances of the offences, the convictions for which are recorded on the applicant's licence, and (b) the general character of the applicant and his fitness to hold a licence."

The Temperance Party in Northern Ireland is, undoubtedly, very strong. It is the one place, after America, in which prohibition has possibly the greatest following. The Intoxicating Liquor Act in Northern Ireland, 1923, Section 8, has the following provision as to compulsory endorsement:

"If any person licensed for the sale of intoxicating liquor by retail is convicted of an offence under this Act such conviction shall be entered in the proper register of licences and shall be directed to be recorded on the licence unless the Court by whom the conviction has been made is satisfied that by reason of the existence of extenuating circumstances in connection with the offence (which circumstances shall be specified in the Order of the Court) the conviction ought not to be recorded."

It must be further borne in mind that in Northern Ireland the Liquor Act is administered by unpaid magistrates. A distinguished judge in Northern Ireland, whose criticism I have read of the unpaid magistrates there, advocated that Northern Ireland could well copy Southern Ireland by appointing trained or skilled lawyers like our District Justices; but now, we here in Southern Ireland apparently do not want, in a matter like this, to give a reasonable discretion to our District Justices. I am sure many members of this Dáil know Mr. Cooper, who was a divisional magistrate of this city. A question was put to him at the Licensing Commission with regard to the discretion of magistrates. When he was asked if he believed that there should be a large amount of elasticity allowed to the magistrates, he replied:

"Yes; I think there would be great injustice otherwise. To deprive a magistrate of his discretion would be to reduce him to the level of a recording machine—a penny-in-the-slot business, where the fine came out at the other side. The magistrate should be the judge. This question of endorsement is just like the case of fixing a minimum penalty of £50 or so for an offence. I am entirely against that. To impose a minimum fine takes away the whole discretion from the magistrate, and in the case of an endorsement it means more than a punishment to the individual, because it means a considerable detraction from the value of the licensed premises."

That is the opinion of Mr. Mark Cooper, who was for a very long time one of the divisional magistrates of Dublin, and a man for whom the publicans had no great love. He believed that the magistrate should have a discretion. I think it is an insult to the magistrates of this State not to give them the discretion which they are allowed in all other countries.

I fear the Minister has said his last word. I notice there is in the Press and elsewhere, and even among Deputies, a practice of referring to the Minister as a strong man. I think he is sick of that. I believe the Minister is strong enough to do justice. He is a very weak man if he is not prepared and ready to change his expressed views when justice demands it. I would appeal to the Minister to reconsider this matter at a later stage. I do not think it will in any way make for temperance by depriving a publican, against whom there was not a summons issued for twenty-five years, of his licence for one offence or for certain sub-divisions of one offence.

Mr. O'HIGGINS

Where is that?

Dr. HENNESSY

I believe that will be the effect of this section.

Mr. O'HIGGINS

The Deputy should try to understand the Bill. A publican not summoned for 25 years deprived of his licence for a single offence!

Dr. HENNESSY

I heard of a case of that kind in Monaghan. A summons was taken out for an offence under which there would have been three convictions. The Minister can explain that afterwards. My information may be wrong. I got it from the newspapers. There were three charges. The publican was found guilty of two. The magistrate then intervened and asked that the third charge be withdrawn in order to avoid the third endorsement.

Mr. O'HIGGINS

Did the Deputy read Section 24 of the Bill?

Dr. HENNESSY

I will leave that section to be discussed between lawyers. I do not see where it meets my point. I think the Minister is departing from what he said was his intention in this Bill. His idea was that it was only full-blooded and deliberate offences that should be recorded. Under the discretion allowed District Justices I can see that they will have no other course open to them but record the offence, even in very trivial cases. There is an excellent and very comprehensive Schedule in the Bill, setting out the offences that are to be endorsed. The Schedule does not, I believe, include offences under sections of other Acts which are still unrepealed, even by this Bill. On the general question of temperance I do not believe we will ever have a sober race by legislation. The time to make people temperate is when they are young, by educating them and impressing on them that it is not evidence of manhood or evolution from boyhood to be seen drinking at publichouse bars.

If Deputies could imagine me in charge of this Bill instead of the Minister for Justice. I would be very strict on some matters which the Minister has let down lightly. There are such things as dances and clubs. I know I am out of order but I mention these now as I do not want to have to do so on another occasion. It is not by relying on this discretion you are going to suppress intemperance. It has been stated that Deputies are under the influence of the licensed trade. The Minister gave a good opportunity to Deputies to do a turn for the licensed trade last night, when he proposed a certain number of hours during which liquor could be sold throughout the country on Sundays. Deputies, I think, clearly showed then that they were not under the thumb of the licensed trade, as they turned down the proposal. I realise that in doing that the Minister was fully alive to the abuses of the bona fide traffic. We must all say that the bona fide traveller is an imposture. The reason I ask the Minister to reconsider this question of discretion is, that the bona fide traveller will lead to unintentional offences that should be provided for.

Mr. O'HIGGINS

What about the rural district council?

AN CEANN COMHAIRLE

That is a subtle point. The Deputy may proceed.

Dr. HENNESSY

I will conclude by asking the Minister to reconsider this question.

Mr. SHAW

I took strong exception to the original clause concerning compulsory endorsement. My reason for so doing was that respectable traders, who would not dream of breaking the law were, under the 1924 Act, convicted. I made it perfectly clear then that my objection was to compulsory endorsement for trivial or technical offences. I am quite satisfied that the Minister's new provision covers the objection that I had to the original clause. Though I admit that some of the words are difficult to interpret, and are somewhat like a cross-word puzzle to an amateur like myself, I feel certain that the District Justices will interpret the clause that gives them discretion not to record endorsements where the offence is of a technical or trivial character. I also believe now that the Minister for Justice has absolved the licensed trade from any previous offences, that the number of traders who will break the law in future will be, at least, very considerably reduced. I have no difficulty in voting for the amendment. I think it is a fair and reasonable compromise.

Mr. P.J. EGAN

I do not propose to devote very much time to Deputy Hennessy's speech. A good deal of it was not quite relevant; a certain portion of it was read out of some newspaper, and another part of it was based on the fact that he had not read the Bill. I have listened very carefully to Deputy Redmond's speech. I confess, quite candidly, that I am not one of those people who are gifted with the legal mind. I can simply claim the ordinary lay variety of mind. But it occurs to me that there is not a very material difference between the viewpoint of the Minister and the viewpoint of Deputy Redmond. It is simply a question of verbiage. I have no doubt that this amendment was drafted by the legal advisers of the Minister. I have no doubt that Deputy Redmond, in addition to his own legal knowledge, has other legal advice behind his amendment. But, as a mere layman, when I hear differences of opinion between high legal authorities, I cannot help thinking of the words of our old friends Gilbert and Sullivan:

"But when, upon the other side, the ruffianly defendant speaks,

What he may say you need not mind;

From bias free of every kind,

This trial must be tried."

Reading the amendment as a layman, I consider that the amendment, as phrased by the Minister, gives sufficient and ample discretion to the District Justice. It is undoubtedly a vast improvement on the old law, which constituted a grievance. In the drafting of the amendment, the Minister has used almost the same words as he used in his speech. The words in brackets are "which relate only to the technical character or trivial nature of the offence." In his speech, he used the words, "If the offence which occasioned that particular endorsement was technical or purely trivial in character, it shall be competent ..." I am quite satisfied that the amendment proposed on behalf of the Minister is reasonable and fair and I intend to support it.

Captain REDMOND

I am glad that the air has been cleared and that we now know definitely what the Minister's intentions are. I cannot say the same about the future construction that will be put upon the Bill. I am also personally gratified to find that my interpretation of the section, as proposed, was accurate—that the section put forward by the Minister does not give discretion outside technical or trivial offences. Although other Deputies, including Deputies Magennis and Egan, seemed to regard this as a great concession, it is now clear or should be clear, that from the point of view of the law as it at present stands, it is practically worthless. What is the position? It is that in future, according to the intentions of the Minister, a District Justice shall only have a right of discretion in offences which are in themselves trivial or technical. But the Minister goes on to say that there shall be an appeal, that the appeal shall be to the Circuit Judge and that, according to the Bill, as at present drafted, the Circuit Judge shall be enabled to take into consideration all extenuating circumstances, including those which govern offences which are not merely of a trivial or a technical character. It comes to this—there is still to be an appeal in almost every case from a District Justice because, as has been pointed out, in matters which are merely technical or trivial—I say this without fear of contradiction—no judge has, up to the present, applied the Probation of Offenders Act. All this great concession amounts to is, as was anticipated, that in future the District Justices are not to be trusted to exercise their discretion judicially—that there is to be an almost certain appeal in every case.

I was amazed and astounded to hear the Minister for Justice state that District Justices, who are stipendiary magistrates—or, rather, shall I say judges, because they are so described in the debates and in the Courts of Justice Act—had dared to interfere with policy. To interfere with policy! Is it to be said that judges are appointed for the administration of policy or for the administration of the law? If they are appointed for the administration of the policy of the present Government then they meet the description which I thought fit to apply to them in the course of the debate on the Courts of Justice Bill because they were not made permanent—they are to be treated as, and are supposed to be nothing more or less than, the old Removable Magistrates. Are these District Justices to be independent of the Executive in the administration of the law or are they to take their orders from Merrion Street? They found the law as it was and they courageously and properly administered the law. Now they are held up in this House by a responsible Minister as having interfered with policy. We now know the intentions with regard to this section. But Ministers' intentions are one thing and carrying into effect Acts of Parliament is another. There are Courts of Justice in this country, set up independently of any Minister's intentions, and it will lie with those Courts of Justice, and those alone, to interpret the law, not in accordance with what the Minister for Justice has said in this House, but according to what the law is as passed through this House.

Mr. O'HIGGINS

Hear, hear.

Captain REDMOND

The law, as passed through this House, will be that in one section, which we are now discussing, "extenuating circumstances" are limited to specific kinds of cases; in another section, "extenuating circumstances" are not so limited. When the question comes before the Circuit Judge on appeal, he will have to ask himself what is meant by "extenuating circumstances." He will have to go back to the Act and find what references there are to "extenuating circumstances." He will find that in the previous section "extenuating circumstances" refer only to two specific forms of offences, and it is on that he will be bound to administer the law. Of course, it may be asked: "What was the intention of the legislature in that regard?" It has been laid down constantly in the courts of law that what the judges have to do is not to read Parliamentary debates and discover what Ministers or Deputies thought the law was going to be, but to administer the law according to the language in which it is written, and which they understand. For anyone purporting to be a lawyer to suggest that when a term is limited in one section, and that there is a subsequent section embodying that term, the limitation in the previous section has no bearing on the second section, displays no great knowledge of the law. We know now where we are.

The Minister mentioned that the question of agency was one which should be carefully considered. And so it should. In the very case I quoted as an instance of where extenuating circumstances should and could be taken into consideration under the Probation of Offenders Act, I said it would only be when the judge was fully satisfied that the defendant was telling the truth and that his defence was bona fide that he would be entitled to exercise his discretion, and thus seemingly interfere with the law of master and servant. That is obvious to anyone with the meanest intelligence or knowledge of the law. We know now that the Minister is determined, in regard to the District Courts, that there shall be no discretion beyond extenuating circumstances in regard to trivial or technical offences. We also know his intentions with regard to the subsequent section. I hope that when it comes before the House that Deputies will consider whether that section in itself will be sufficient to bring the judges to the conviction that those extenuating circumstances governing the cases brought forward on appeal are to be wider and more embracing than the extenuating circumstances limited in the previous section. Perhaps by the ventilation of this, and the speeches in the Dáil, the judges in the future will come to know that; but I say it is the duty of those who frame Bills to put their intentions clearly into them, and not have their intentions made known through speeches in this House.

We are told that the District Justices have chosen to administer an Act of Parliament which has not been repealed in this country, an Act which applies to the whole criminal code as administered in this country, which applies to the highway robber, but which it is now proposed is not to apply to the holder of a licence. That was, I suppose, a great act of interference on the part of the District Justices. I say that any District Justice who refused to consider the application of the Probation of Offenders Act was acting directly against what he should do in the interests of justice as administered by him. The Probation of Offenders Act is an Act which you can repeal if you like in this country, but it is an Act which was passed to apply to all classes of criminal cases. Is it to be said that when a man goes into licensed premises and assaults the licensee that, if he so chooses, he can invoke the aid of the court by way of the Probation of Offenders Act, but that the licensee, because he happens to have violated the licensing laws, is not to have the same opportunity of availing of this Act? That is what the matter comes to: that the licensed holder in this country is to be the one citizen in the community who is not to enjoy the benefit of that great measure of reform which now exists and can be applied to every criminal throughout the land. That is the effect of this section, taken in conjunction with the future section to abolish the Probation of Offenders Act. This is the legislation, then, that we are asked to pass which is to promote temperance. I say that this section as it stands now and as explained by the Minister—and, though I do not want to make any great ado about it, correctly interpreted by myself—is no advance in the interests of the proper administration of justice to the holders of licences in this country. Instead of furthering that object, the proposed amendment of the Minister is, I submit, practically worthless.

Professor MAGENNIS

Deputy Redmond is correct in saying that a court must be guided by the actual terms of the statute, and be controlled by the interpretation of statutes. The merest tyro in the legal profession is aware of that. The Deputy has raised a very interesting question to-day: that is, the precise import of the words of the clause. To my mind, reading them, favourably disposed towards the words, I thought that they admitted of a very favourable interpretation, one which would meet with all the requirements of the decent and honourable members of the licensed trade. There is an obvious difference between the offences set out in the Schedule from which I read and which are trivial in their own nature, and those which would become trivial because of the circumstances under which they arose. Now, if the Minister insists that the amendment applies exclusively to cases that are trivial in themselves and technical in their character, then, undoubtedly, the possibility of injustice to the righteous trader is still left open. But if the words of the official amendment were these: "such justice may if satisfied that by reason of extenuating circumstances which in his judgment reduce the offence to one of a technical character or trivial nature," then I submit that proposition would meet every reasonable demand. Deputy Redmond could not allege against the clause running in those terms that it left any door open for injustice or unfairness of treatment to the licensee who had been victimised by an employee, or, to take the instances put forward by the Minister, who had been victimised through an impersonal agency such as the going wrong of his clock, the breaking down of his door or something of that sort. I believe that the Minister is animated by the same spirit as those of us who are temperance reformers and who advocate a temperate use of intoxicating drinks in the Free State, but that he was moved to depart from the "shall" in the earlier statute to the introduction of a discretionary power with regard to extenuating circumstances in order to meet the case put forward on behalf of the licensed trade, the case a portion of which I read to-day. There is undoubtedly in the long list of offences set out in Schedule 1 a type of case which, in its own nature, is very serious.

I instance one such type, to wit, supplying intoxicating liquor to a Gárda on duty. Everyone must regard that as a very serious offence, but if it should, on investigation in the court, be established that that was a deliberate violation of the law on the part of a malicious employee, who did it to injure the employer by reducing the value of his licence, surely if there were any discretion left to a District Justice it should extend so far as to allow him to consider that that offence, though serious in itself under normal conditions, is, in the case before him, rendered trivial. I submit, therefore, that the only interpretation of the official amendment in which it could meet with general acceptance is that it purported to declare that the District Justice, if satisfied by reason of extenuating circumstances which in his judgment reduced the offence to one of a technical character or a trivial nature, should be at liberty not to endorse such offence upon the licence. If I were permitted I would move an amendment to Deputy Redmond's amendment to have the words altered to that effect, but if the Minister will tell us that he repudiates any such interpretation as I put on the words and would not adopt that reading, then I shall see my way more clearly as to how to vote.

Mr. O'HIGGINS

We have two points of view. One is that the words "technical character, trivial nature," and so on, are undesirable in the amendment, that simply all that is needed is that a Justice should be satisfied that there are extenuating circumstances.

Captain REDMOND

In connection with the offence?

Mr. O'HIGGINS

In connection with the offence. It is very easy to relate any extenuating circumstances to the offence. If the weather were particularly hot and the thirst of the client great on that account, those would be extenuating circumstances in relation to the offence.

Professor MAGENNIS

Not legally.

Mr. O'HIGGINS

I mentioned the poverty of the trader. Is that an extenuating circumstance?

Captain REDMOND

That is not in connection with the offence.

Mr. O'HIGGINS

But the offence is committed with a view to making profit; if the trader is exceptionally poor he stands in greater need of making a profit. When I spoke of the poverty of the trader I did not mean that the consequences of conviction and endorsement would press any harder on him than on another, but it is a factor in the situation. The amendment that stands in Deputy Dolan's name means, I submit, and is certainly intended to mean this, that the kind of case in which a Justice is free to order non-endorsement subject to an appeal by the Superintendent to the Circuit Judge is, in effect, the kind of case that the average man, having considered the circumstances, would be inclined to say ought not to have been brought, that there was no doubt an offence, a technical breach of the law, but that there was no degree of guilt, mens rea, sufficient to lead an ordinary fair-minded person to the view that there should be the penal consequence of endorsement. I instanced the clock that might have gone a few minutes astray in the course of the day, even though it was correctly set in the morning. I mentioned the accident outside the door where stimulants were needed; a sale took place and there was a technical breach.

On the bigger question Deputy Magennis raises, let us suppose men are found in a publichouse at a late hour in the night considerably after closing time, at any rate, and that the defence is put up there that this is a wicked manager, with a dislike of his employer, who is trying to injure his property by securing an endorsement on the licence. That is a case for the higher courts, and that offence is neither trivial nor technical; it raises another issue as to whether there are circumstances such as to call for a departure from the ordinary circumstances in the tag I quoted, "qui facit per alium facit per se,” that the employer ought not to be held, in law, liable for the act of his employee. According to my understanding of Section 22 this latter case is one which the District Justice should endorse, leaving the licensee to make his case in the higher court that there were extenuating circumstances of a kind that did not make the offence trivial or technical, but called for a dispensation from the ordinary code that the act of the agent is the act of his principal. I do not know any other way in which I can make more clear the difference of view I hold as between Section 22 and Deputy Dolan's amendment, as between the character of the discretion which, in my view, Section 22 gives to the higher court as distinct from the discretion the official amendment gives to the District Justice.

Quite frankly I am prepared and disposed to give to the District Justice that degree of discretion in this matter of the licensing law on Section 22 I see it vests in the Circuit Judge. The case made to me when there was an automatic endorsement by the District Justice, subject to an appeal to the Circuit Judge, is, are you going to put a man to the expense of an appeal where you agree there should not be endorsement and where an offence was the merest triviality and technicality? No doubt it existed because the law was there, but really the offence was of such a trivial nature that a man should not be put to the legal expense of appealing to the Circuit Court. That is the case I want to meet by Deputy Dolan's amendment, and no other case. I want to make the case that I myself, the Secretary of my Department, the people who conceived this legislation, would agree that there ought not to be endorsement and would agree there was hardship in putting a man to the expense of going higher up to the Circuit Judge. That is the case this is designed to meet and not any other case. If a man wants to repudiate his agent let him satisfy the Circuit Judge in that matter, that he was not really his agent, but was animated by some hostility to him and some desire to injure him and his property by securing endorsement of the licence. That raises a bigger issue than I want to meet by Deputy Dolan's amendment.

I am always open, subject to these general interpretations that I have attempted, to look again at the wording of the amendment, to look again at the wording of the section; but if I am asked to strike out of the official amendment any phrases purporting to limit the discretion of the District Justice to the trivial case, to the technical case, then my answer to that is an emphatic negative, a negative which I make an issue of Government confidence.

If the amendment does not, in fact, meet what I have said, or if it meets more, I will revise it: if the section meets more or less than what I have said, I am prepared to revise it; but I have given now as clearly as I am able to give the Committee the different view I hold of what is covered by Deputy Dolan's amendment and what is covered by Section 22 in relation to the Circuit Court.

Captain REDMOND

I must express my thanks to the Minister for so clearly explaining the exact position he takes up. I understood that to be the position from the wording of his amendment and I understand the position to be so now, namely, that the District Justice's discretion is merely to be limited to these two classes of cases. I am very glad to hear the Minister say that he is prepared to reconsider the wording of the amendment or the section, but so far as I am concerned I do not ask for any amendment of the amendment or the section as now proposed by the Minister, if that further amendment were but to carry out the intentions which. I think, are carried out in the amendment as worded by him. I think they are carried out. That is my interpretation. It differs somewhat from my friend Deputy Magennis's interpretation. I am very glad in that respect that I was right in my interpretation.

If the Minister's only further amendment of this section were to make still more clear, if that could be done—I do not think it could—what his intentions as now expressed are, I do not think there is any necessity for a further amendment. I understand his intentions perfectly well. I understood his intentions originally when he put in the amendment and now we know where we are. On the question of wording I would like now to appeal to the Minister to consider, if not now, before we come to Section 22, whether Section 22 does actually carry out his intentions. He has quite clearly expressed his intentions in regard to Section 22. He has said in regard to it that he desires to give a wider interpretation to the words "extenuating circumstances." I ask him to be open to consider making that clear when the section comes up for discussion.

Professor MAGENNIS

The Minister is absolutely clear in his last statement —unmistakably clear. I regret that the amendment, set down as an official amendment, is not so limpid and unmistakable in its terms as the Minister's statement. I agree altogether with the Minister in the spirit that animates his proposal. I agree also in large measure with the case that he put up—that it would not be desirable in the public interest to break down the defences of temperance in this measure unduly, merely to guard against the casual injustice that might fortuitously occur to a licensed trader. As between the two alternatives, so to modify the measure as to leave a wide door open for irregularities, or so to modify it as to exclude the possibility of hitting hard or unfairly a member of the trade, he decides in favour of the public interest as against the individual. I think as practical men we must agree that is a wise proposition.

What I do not quite follow the Minister in is this: he seems to me— I go no further than saying he seems— to draw a line of demarcation between the District Justice and the Circuit Judge. If it could be shown that the two judges are drawn from a different class of practitioners, so that the result is that the capacity of the Circuit Judge must be admitted to be higher than that of the District Justice, I would consider his case established. But we know, in the chances of preferment and the rest in the legal profession, a man may find himself a District Justice who was quite competent to play the part of Justice of the Supreme Court. I remember well —I will not express any opinion of the merits of the individual in my illustration—the case of a barrister of my own acquaintance who applied to Mr. Birrell for appointment as a County Court Judge, and who had the good fortune to be turned down in his application, and a few years later he was appointed to be a Judge of the High Court.

What the Minister overlooks is this: first, we have, or may have, in the District Justice a highly competent judge for the purpose of determining these matters; secondly, when, in order to apply in the interest of the licensee this doctrine of law with regard to responsibility of principal for the act of his agent—qui facit per alium facit per se—he should be sent to the Circuit Court on appeal, even though, in the event of his succeeding in the appeal, his costs will be borne by the prosecution, there is dislocation of his trade, there is anxiety of mind, there are a variety of elements entering in that will have, if the Minister's intention is carried out, the effect of a sort of punishment.

I am with the Minister wholly in refusing to give absolute discretion to the District Justice. I would not wipe out the "shall" of the original statute and leave the thing open, but, as between the two, as between Deputy Redmond's amendment to give unfettered discretion——

Captain REDMOND

It is not unfettered. I must correct the Deputy there. It is anything but unfettered. The discretion which I am proposing is a discretion with regard to extenuating circumstances in connection with the case. It is not at all unfettered.

Professor MAGENNIS

It is a matter of language. With all respect to Deputy Redmond, the words "extenuating circumstances," as he agreed with me earlier in this discussion, have a precise signification in law. The extenuating circumstances of which a Court will take a heed are always extenuating circumstances in relation to the offence. He agrees with me in that. Consequently when I use the words "unfettered discretion," I mean within the legal limits of the exercise of his functions as a Justice. As between the two alternatives, to remove the word "shall" altogether with the alternative of limiting the discretion of the Justice to cases trivial in themselves or merely technical, I think the middle course is the fairer one. His purpose and mine, both in the interest of temperance and of justice to the public at large and the licensee in particular, would be met if the words of the amendment were "by reason of extenuating circumstances which in his judgment reduce the offence to one of a technical character or trivial nature."

Mr. O'HIGGINS

I am prepared to give very serious consideration to that.

Professor MAGENNIS

Thank you.

Mr. BAXTER

I feel very slow to enter into this discussion, but it has become very interesting when we get legal minds differing on interpretations. There is an aspect of the whole case that strikes me very forcibly as one that would need to be looked at a little more clearly from the point of view of the administration of justice itself. I suppose we are to take it that in every case that comes before the District Justice the Justice is not entitled to rule out evidence, which may be advanced by the defendant in the belief that there are extenuating circumstances, as being inadmissible. Now, if a case is put forward before the District Justice have we the position that the hands of the District Justice are tied in such a fashion that he must inflict the penalty of endorsement, while at the same time the Justice is convinced, because of the evidence advanced before him, that his decision will be reversed by the Circuit Judge? This is the point of view that appeals to me in the matter—the point of view of justice and equity in this whole question.

A poor publican may come before the District Justice. It may not be a great defence to be poor, but let us consider the position of the man who may have a case where there are extenuating circumstances, and withal there will be a penalty inflicted by a Justice competent to decide and to interpret the law. And while this penalty is being inflicted by him there is in his mind the conviction that the penalty will be withdrawn or that the decision will be reversed by another court. But in order that justice may be done in that particular case the publican will have to bear the costs of an appeal. That strikes me as not being equity, and while the Minister, understanding the Justices and the problems that the Justices have to deal with better than any of us can—and perhaps for reasons that he has not even given us—may feel that it is necessary to tie the hands of the Justice in this particular way, I put it to the Minister may there not be hundreds of cases where defendants will be treated harshly and where probably in the ultimate decision of the Circuit Judge they may be treated unjustly because the Minister has decided to place such restrictions on the District Justice that he cannot, under the particular circumstances, do what he would consider just? I cannot support that point of view. I cannot agree that it would be fair to any individual publican brought into the Court to have a penalty inflicted on him which the Court in its own judgment would recognise would be reversed by another Court. The fact that another Court might be thought to be more competent will not, in the public mind, remove the impression that the lower Court has done an injustice.

I submit that point of view to the Minister, and I urge that in very many cases the full penalty will be imposed and, even after going to the High Court, that penalty may still stand. There will be very many cases also where in the lower Court the penalty will be imposed and that decision will be reversed by the other Court. Where do we stand? The Minister, in order that justice may be done in one case, imposes certain limitations on the District Justice, which will in effect have the result of compelling that man to do an injustice in perhaps a far greater number of cases. I think the whole thing wants to be reconsidered.

I cannot agree that the situation as indicated here to-day is at all satisfactory. There is another point which I cannot see clearly either. One lawyer advances the view that even in the higher Court the decision of the Judge will be governed by the interpretation that is put upon this amendment of the Minister in interpreting Section 22. Where are we at all in the matter now?

AN CEANN COMHAIRLE

Could we have Deputy Redmond's view of Deputy Magennis's amendment? Does Deputy Redmond want to say anything about Deputy Magennis's form of words before we go any further?

Captain REDMOND

No, sir.

Mr. O'HIGGINS

I have very little to add beyond congratulating Deputy Baxter in being able to split a hair into a greater number of parts than either a lawyer or a metaphysician. The problem is not as abstruse as he represented it to be. You are asked to say that breaches of particular provisions of the licensing laws shall normally be followed by endorsement, that if in the opinion of the District Justice there are circumstances, and I do not mind for the moment adopting Deputy Magennis's wording, "circumstances which reduce the offence to a trivial one and a technical one," that the Justice need not in these circumstances endorse the licence subject to an appeal by the District Officer to the Circuit Judge.

You are asked to say that if, in the opinion of the Circuit Judge there are extenuating circumstances of a nature that really might mean that endorsement was a penalty out of proportion to the guilt of the offender, he might, without quashing the conviction, which is, of course, another matter, order the deletion of the endorsement. We said, and I think properly, in the Act of 1924, in the conditions that then prevailed, that all cases of conviction should be followed by endorsement, and that, if the trader felt that he had a case to make, he could go and make that case in the High Court, seeking the deletion of the endorsement. My proposal, and I do not think it was unreasonable, was simply to retain that position, but to let the appeal lie to the Circuit Judge instead of to the High Court. That and the attaching of a lifetime to the endorsement represented the extent of the modification that I felt ought to be made on the 1924 position. Others felt differently and urged me further. They urged that a man should not be put to the expense of going to the Circuit Court where the offence was of a most minor and technical character, where it was of a kind about which the average citizen would say:—"I suppose the police officer had to do his duty but, humanly speaking, that is a kind of case that ought scarcely have been brought at all."

That is the case which I am meeting, or believe I am meeting, by Deputy Dolan's amendment, but I am not aiming at vesting in the lower court, nearer to the people, subject to forms of pressure from which a Circuit Court Judge is somewhat more remote, the same degree of discretion as, I believe, Section 22 vests in the Circuit Judge. Deputy Baxter suggests that possibly I know even more intimately than Deputies. I do. I know the hundred and one forms of pressure that can be brought to bear on Justices—on the relatives of Justices, aye, beyond the forbidden degrees of kindred—when a licensing prosecution is pending, and it is because of my very intimate knowledge of that and that Justices have complained to me about it, that if there is to be any discretion in the District Court, I want it to be of the most limited character. I doubt if Deputies of my own, or any other, party are wise in pressing for any discretion at all in the District Justice. I think the other position was better, that they should judge the fact whether an offence took place or not, and that thereafter the question whether or not there were extenuating circumstances, which would render an endorsement toc severe, should be left to the higher court. That was my original position from which I was forced. Now I want it to be clear that the nature of the discretion which, under the amendment, I am aiming at vesting in the District Justice is not as wide as the discretion left by Section 22 to the Circuit Judge. Superficially and at first blush, I see nothing wrong with the proposal of Deputy Magennis and I would like to see it examined further. I am prepared to examine it. The Deputy is not aiming at it; other Deputies are, but I am not going to be forced further along the line of leaving the District Justice free to say whether the penal consequence of a particular conviction shall be a fine or endorsement.

I am not going to be forced any further along the line than is represented by Deputy Dolan's amendment, supplemented by my own explanation of what I believe that amendment involves. I simply put on one side as definitely unsound—and I am prepared to have my view vetted by any authority Deputy Redmond may name —the suggestion that the limiting words that appear in Deputy Dolan's amendment behind "extenuating circumstances" in brackets, will be seen, or must be seen in imagination by the Circuit Judge as applying also to Section 22. I simply scout that suggestion as unsound and untenable. The words in Section 22 are "if satisfied that by reason of the extenuating circumstances (to be stated in the order of the court) such conviction ought not to be recorded," and so on. The suggestion that you must read there "which shall relate only to the trivial character or technical nature," the words that occur in the Deputy's amendment, is one that I do not accept. I believe and am advised it is unsound. What I would ask the Dáil to do is to vote, if they wish to vote, on Deputy Dolan's amendment on the understanding that if it does not effect all that I have claimed for it I am prepared to revise it along the lines suggested by Deputy Magennis; in other words, to say that the District Justice if he is satisfied extenuating circumstances exist of such a kind as to reduce the offence to one of a trivial or purely technical character he may then refrain from endorsing the licence subject to appeal by the superintendent.

I have no objection to that form of wording. I am prepared to examine that, and if the Parliamentary draftsman considers it a satisfactory form of words to embody it in the Bill on a later stage. It is certainly not my fault if I have not made it quite clear to Deputies that I only want to vest in the District Justices a discretion to meet the kind of case which I myself, or anyone with my peculiar outlook on this matter, might say should scarcely be brought—that the officer had to do his duty—but that it is not a case that would merit endorsement. Extenuating circumstances can be pleaded in the High Court, which is more aloof from objectionable kind of pressure than is brought to bear in licensing cases on the District Justice. Justices have complained to me about the unpleasant pressure that is brought to bear on them in connection with these cases—brothers, fathers, mothers and even cousins are interviewed with a view to influencing the Justice's decision in a particular case and securing the application of the Probation of Offenders Act, that great charter of licensed trade that Deputy Redmond mentioned. It was really not as a reflection on District Justices but in consideration of that unpleasant side of their position that I advocated in 1924, and originally proposed in this Bill, that they be not given the discretion at all once the point of conviction is reached. Deputies would have it otherwise, but I am determined that they will not have it otherwise to too great an extent.

AN LEAS-CHEANN COMHAIRLE

took the Chair.

Amendment put.

The Committee divided. Tá, 24; Nil, 44.

Tá

• Pádraig Baxter.
• Daniel Breen.
• Seán Buitléir.
• John J. Cole.
• John Conlan.
• Louis J. D'Alton.
• John Daly.
• Connor Hogan.
• Séamus Mac Cosgair.
• Patrick J. Mulvany.
• William Norton.
• Ailfrid O Broin.
• Criostóir O Broin.
• Tomás O Conaill.
• Aodh O Cúlacháin.
• Tadhg O Donnabháin.
• Eamon O Dubhghaill.
• Mícheál O Dubhghaill.
• Mícheál O hIfearnáin.
• Domhnall O Mocháin.
• Domhnall O Muirgheasa.
• Pádraig O hOgáin (Luimneach).
• William A. Redmond.
• Nicholas Wall.

Níl

• Earnán de Blaghd.
• Thomas Bolger.
• Séamus Breathnach.
• Seoirse de Bhulbh.
• Próinsias Bulfin.
• Séamus de Burca.
• Bryan R. Cooper.
• Máighréad Ní Choileain Bean
• Uí Dhrisceóil.
• Michael Egan.
• Maolmhuire Mac Eochadha.
• Patrick McGilligan.
• Risteárd Mac Liam.
• Eoin Mac Néill.
• Seoirse Mac Niocaill.
• Liam Mac Sioghaird.
• Liam Mag Aonghusa.
• Martin M. Nally.
• John T. Nolan.
• Peadar O hAodha.
• Máirtín O Conalláin.
• Séamus O Cruadhlaoich.
• Eoghan O Dochartaigh.
• Patrick J. Egan.
• Desmond Fitzgerald.
• John Good.
• Thomas Hennessy.
• John Hennigan.
• William Hewat.
• Seosamh Mac a' Bhrighde.
• Donnchadh Mac Con Uladh.
• Liam Mac Cosgair.
• Seán MacCurtain.
• Séamus O Dóláin.
• Peadar O Dubhghaill.
• Pádraig O Dubhthaigh.
• Eamon O Dúgáin.
• Séamus O Murchadha.
• Pádraig O hOgáin (Gaillimh).
• Seán O Raghallaigh.
• Máirtín O Rodaigh.
• Seán O Súilleabháin.
• Caoimhghín O hUigín.
• Patrick W. Shaw.
• Liam Thrift.

Tellers.—Tá: Deputies Redmond and Baxter. Níl: Deputies Dolan and Sears.

Amendment declared lost.

Question—"That the new section be there inserted"—put and agreed to.

Sections 22 and 23 put and agreed to.

SECTION 24.

Whenever the holder of a licence for the sale of intoxicating liquor by retail is convicted of two or more offences, convictions for which are by this Act required to be recorded on such licence, and such offences were committed on the same day, the Court by which such holder is so convicted, or the Court by which such conviction is affirmed on appeal (as the case may be), may, if he so thinks fit, order that such one or more as such Court shall think fit, but not all of such convictions, shall not be recorded on such licence; and whenever such order is made, the conviction or convictions in respect of which the order is made shall not be recorded on such licence notwithstanding the provisions of this Act, and, in the case of an order made on appeal, shall for all purposes be deemed never to have been so recorded.

Amendment 55—To delete in line 3 the words "which are by this Act required to be recorded" and substitute therefor the words "which could be recorded under this Act."— William A. Redmond.

Mr. O'HIGGINS

In connection with this amendment, perhaps it would meet the Deputy if I say the drafting does need to be looked into. If the Deputy looks at Section 21, sub-section (4) he will see—

"In this part of this Act every reference to an offence a conviction for which is by this Act required to be recorded on a licence shall be construed as a reference to an offence to which sub-section (1) of this section applies, and which ought under that sub-section to be recorded on such licence."

Then there is a reference back to sub-section (1) of Section 21. However, I am prepared to have the use of those words throughout the Bill re-examined, and I will let the Deputy know.

Captain REDMOND

I am satisfied.

Amendment not moved.

Question proposed: "That Section 24 stand part of the Bill."

Mr. HEFFERNAN

I want a slight explanation on this. Deputy Hennessy stated that cases of two or more offences committed on the one day had occurred, and that in these cases sufficient endorsements had been placed on a licence to wipe it out. The Minister contradicted that statement, but the section says: "May if it so thinks fit order that such one or more as such Court shall think fit but not all of such convictions shall not be recorded." There is still a possibility. Am I right in my interpretation?

Mr. O'HIGGINS

What does the Deputy think?

Mr. HEFFERNAN

I think there is, but the Minister said no, or at least he referred the Deputy to the section in that regard.

Mr. O'HIGGINS

"May if it so thinks fit." In other words, it is left to the discretion of the Court. But cases occurred under the 1924 Act that were practically in the same setting, arising out of the same situation. There were, in fact, breaches of two provisions of the licensing law, and the evidence established that there were two distinct breaches. The Justice held, and one may think properly held, that he had no discretion, and he convicted under two distinct heads, such convictions each involving an endorsement. There is one case quoted as a classic example of that by the licensed trade whenever they are holding forth on the inequity of endorsement generally. This section ensures that if a Justice thinks there should be only one endorsement, that the whole situation was, in fact, the one position, he is not obliged to proceed to more than one endorsement because more than one provision of the licensing Act was infringed according to the evidence that is tendered to him, and I think that is a discretion that will be used wisely and properly. But if Deputy Heffernan asks me to say whether, technically, a man could not receive two or even three endorsements arising out of the same situation and arising out of the same body of evidence tendered, I say that theoretically he can, and the Deputy is, therefore, theoretically right.

Question put and agreed to.

NEW SECTION.

Mr. DOLAN

I move:—

Before Section 25 to insert a new section as follows:—

"(1) Whenever, on an application for a certificate for the transfer of a licence for the sale of intoxicating liquor by retail, the applicant at the time of such application satisfies the Court that the transfer is desired for the purpose of giving effect to a bona fide sale for money or money's worth of such licence and the premises to which the same is attached, the Court shall, if it grants such certificate, direct in and by such certificate that all (if any) offences then recorded on such licence under this Part of this Act shall at the time of such transfer cease to be so recorded, and whenever such direction is so given every such offence shall at the time of the transfer of such licence pursuant to such certificate cease to be recorded on such licence and such licence shall be so transferred freed and discharged from the records of such offences and shall thereafter have effect for all purposes as if such offences had never been recorded thereon.

(2) Whenever a licence (hereinafter called the first licence) is transferred freed and discharged under the foregoing sub-section from the record of an offence and the person who was the holder of such licence immediately before such transfer hereinafter called the first transfer) applies (whether in the same or another licensing area) within five years after such transfer for a certificate for the transfer (hereinafter called the second transfer) to him of the same or another licence (hereinafter called the second licence) the Court if it grants such certificate shall in and by such certificate direct that all offences which immediately before the first transfer were recorded under this Part of this Act on the first licence shall on the second transfer be recorded on the second licence, and whenever such direction is so given every such offence shall on the second transfer be recorded on the second licence, and such record shall from and after the second transfer have effect as if the same had been made on the second licence at the time when it was made on the first licence save that for the purpose of calculating the duration under this Act of such record the period between the first transfer and the second transfer shall be omitted.

(3) It shall be the duty of every person who applies for a certificate for a transfer to which the foregoing sub-section would apply to disclose to the Court at the time of such application the facts by reason of which that sub-section so applies, and every such person who fails or neglects to make such disclosure shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds, and also, if such person is at the date of such conviction the holder of the licence the subject of such certificate, every offence which would under the foregoing sub-section have been recorded on such licence if such disclosure had been duly made shall be deemed to have been duly so recorded in accordance with that sub-section.

(4) Every entry in a register of licences of a certificate for a transfer in and by which a direction is given under this section shall include the particulars of such direction."

Mr. O'HIGGINS

This is the fulfilment of my Second Reading promise that I would bring in an amendment on Committee enabling a sale of a clear licence to take place, provided that the sale was bona fide. Because that is one of the things that has been stressed as distorting the Bill out of all resemblance to what it was originally, perhaps I had better go into the matter at greater length than I did on Second Reading. This amendment has really no temperance aspect whatsoever, and in my opinion it is quite sound and reasonable. It is not introduced by me as a result of any pressure from any Deputies of my own Party or of any other Party. It originated in my own Department after representations had been put forward to us by the licensed trade on an occasion when I received a deputation. The contention was this, that the mere menace of the endorsement, the mere fact that there existed in our body of law provision for endorsement, affected the credit of all traders, whether they were running their houses perfectly correctly or not, that the man who had kept the law for twenty years and who meant to continue keeping it, who felt no particular urge to break it, had his credit affected by the fact that under the law governing the licensed trade there existed provision for a sequence of endorsements that might result in the abolition of the licence. In other words, they were not able to borrow as much on their property as they were before this system of endorsement prevailed in our legislation.

What they claimed to be affected was their credit in the bank. Their credit in the bank rests. I suppose, ultimately on the value of their premises for sale, and this amendment is designed to meet the position that was put forward that the credit of all the traders in the country, regardless of whether they were keeping the law or breaking the law, was affected by our endorsement provisions. Very good. If you say, as I say in this amendment, that a trader, even with endorsements, may sell a clean licence if he is in a position to satisfy the court that the sale is bona fide, not a hugger-mugger sale to a relative or to a person who is to hold for the time being and then transfer back, that he can transfer a clean licence, though he himself in the course of his proprietorship received endorsements on that licence, then you meet as a whole the credit argument. But do you do any harm to temperance? I think not. If a man with two endorsements decides that he is an unfit person to be conducting that particular trade and that he ought to get out of it, that if he does not get out of it his whole property is in jeopardy because he might incur a third endorsement, is it any retrogression from the temperance point of view to say to that man: "Very good, you can sell, and provided that the sale is bona fide you can transfer to the purchaser a clean licence"? After all, we are saying in this Bill that a man who gets endorsements may himself win out again to a clean licence by running his shop straight for a period. We attach a life of five years to the first endorsement, seven years to the second, and ten years to the third and all subsequent endorsements, but we keep before us the idea of reform, and through reform a clean sale, that if a trader, after this Bill passes, is convicted and gets an endorsement, that endorsement has a lifetime of five years.

Supposing that three years after he gets another endorsement, then he will have two perilous years during which, if he gets a third endorsement, he will go out of business. But always there is the idea that by keeping the law, by running his shop properly, he may wipe out his past misfortune. In the light of that, is there anything wrong, anything retrograde, about this proposal that a trader with endorsements who decides to sell, may, provided the sale is bona fide, transfer a clean licence? There was substance in the contention that all members of the trade, even those who were running their places perfectly strictly and in accordance with the law, were affected in their credit by the endorsement provisions, and the sole purpose of this amendment is to meet and to dispose of that contention in so far as it was sound and substantial.

This was one of the amendments I indicated on Second Reading that I would introduce, and people went about saying that the Bill, in the light of the Minister's promises, was a pale shadow of its former self, something scarcely worth struggling for, something searcely worth attempting to get through. That kind of ridiculous contention was spoken and written about the Bill by people who had not the faintest understanding of what was promised, or what was not promised for the Committee Stage, but it rushed to their heads, like air to a vacuum, that there were concessions made, or promised, that made the Bill worthless as a measure of reform and temperance. This amendment is put forward because I was satisfied that there existed a very good and a very sound case for an amendment of this kind. I was always troubled by the contention that the endorsement provisions of our legislation affected people who were not breaking the law at all, and the only reason why that contention was not catered for before was the difficulty of providing against the bogus sale and transfer. It is sought to be provided against in this amendment. I am satisfied with the amendment as it stands. I am satisfied that it removes a genuine hardship, a genuine grievance, and I ask the Dáil to accept it in that spirit.

Professor MAGENNIS

I think the idea behind this amendment is very happy. To the fanatical upholder of temperance reform it might seem that the amendment minimises the effect of what would otherwise be a very powerful sanction, to wit, a gradual reduction to naught of the value of the licence as an asset, but when one considers the proposals as a whole and relates these to the purpose of reducing the total number of licensed houses in the State, I think it will be realised that it is merely treating with equity what would otherwise, in some cases, be an inequitable state of affairs. The main purpose of fining and of endorsing is in the first instance to enforce a proper conformity on the proprietor of a licensed house with the requirements of the law. If he attempts to break the law he is fined, and the licence is endorsed. The effort here is to coerce him, by these punitive measures, into a right conduct of his premises. If he could be induced to surrender his control of them and to pass the licence and the premises over to someone who is willing to conduct the business in a proper, regular, legal fashion, then unless we are going to hold that the licensed trade is like piracy, an infamous business in which we will not allow anyone to engage, it seems to me only common justice, and in the interests of the public at large, to have the licence transferred from wrong hands into proper hands.

The great argument that was used in this connection was that endorsement was a mean device to extinguish the licence without paying the cost. This remedial measure—by which endorsements are not a fatal disease in all cases, that if the licensed premises be transferred into right hands, the licence is renewed in its health, has its pristine vigour undiminished—that commends itself to me, if for no other purpose, for the sole purpose of getting rid of the argument against endorsement that it is a trick or device. How this will affect the cancellation of licences through compensation I am not quite clear. I am quite sure the Minister has considered the matter, however, because the community who are called upon in a particular area—that is, the community of surviving licence holders— to compensate the licensee of the extinguished licence might prefer to have in their midst a perishing licence, so that the amount of compensation to be paid would be reduced. I do not know that cases of that kind would be considerable in number, but if we leave them out of consideration it seems to me that the balance of the argument, both in the case of temperance or in the case of an equitable treatment of the members of the trade, is all in favour of the new section.

New section put and agreed to.

Captain REDMOND

I have got three amendments down to Section 25, but as they are covered by the statement of the Minister I wish to withdraw them.

Amendments 58, 59 and 60 not moved.

Sections 25 and 26 put and agreed to.

Captain REDMOND

I have got another amendment to Section 27, but the same remarks apply to that, and I beg to withdraw it.

Amendment 61 not moved.

Sections 27 and 28 put and agreed to.

SECTION 29.

Captain REDMOND

I do not think it is necessary for me to add anything to what I have already said in regard to this section, but I must enter my protest in general, as well as on specific grounds in relation to this Act, to the purpose of this section. This is a universal measure of leniency under which it is permitted to any person who is proceeded against by the State for the infringement of the law to apply to the court to have the sentence or conviction mitigated. On general grounds I think there could be no justification for singling out a citizen because he happened to be a licensed holder as an exception to the general rule, and on those grounds I am entirely opposed to the section. It is hardly necessary to say that I am opposed to it on specific grounds in relation to Section 21. I admit that if Section 21 is to stand as amended this will of necessity be a necessary corollary, because, as I have pointed out, under the Probation of Offenders Act, extenuating circumstances consist of three distinct and separate classes (1) age, character and antccedents; (2) the trivial nature of the offence; (3) extenuating circumstances in connection with the offence. It is proposed by Section 21 to limit the already existing set of extenuating circumstances. It is, therefore, necessary for that purpose to repeal the existing Probation of Offenders Act. I will not, unless other Deputies desire, ask for a division on this section, but I must as an individual citizen protest against the exceptional treatment meted out by the repeal of this Act to a citizen of the Saorstát because he happens to be a licence holder.

Professor MAGENNIS

What seems to be running in Deputy Redmond's mind is the law in regard to ferocious dogs. A dog is allowed one bite—his first bite. The Deputy wishes the publican to be allowed a first bite. But his own concluding words, I think, answer the case that he has made. It is precisely because we are dealing with the holder of a licence that the Probation Act is not to apply, because the holder of a licence is one to whom the State or society has given a quasi-monopoly, and the exercise of his rights under that monopoly, as we see, has to be hedged in by an infinity of regulations, a very elaborate police code, and active supervision by the police. Consequently, he is in a different category qua licensee from any ordinary citizen. The plea, therefore, that Deputy Redmond makes appears to me more specious than right.

Captain REDMOND

I should like to remind Deputy Magennis that this is not the First Offenders Act but the Probation of Offenders Act.

Question—"That Section 29 stand part of the Bill"—put and agreed to.

SECTION 30.

(1) In this Part of this Act all references to a licensing area in relation to premises shall be construed as referring to the licensing area in which such premises are situate and all references to a licensing area in relation to a licence or to the holder of a licence shall be construed as referring to the licensing area in which are situate the premises to which such licence is attached.

Mr. BAXTER

I move amendment 62:—

In sub-section (1), line 29, after the word "referring" to delete the words "the licensing area" and substitute therefor the words "the county."

This amendment and amendment 65 in the name of Deputy Davin have the same purpose, and I should say that I prefer Deputy Davin's amendment to my own as a method of dealing with this problem. However, the case that can be made for one can be made for the other. In this matter of the reduction of licensed houses and the question of compensation, the Bill provides that every licensing area shall carry the compensation to be paid for the extinguished licences. In some places at present there are too many licensed houses. A number will go out of existence and the compensation to be paid for these will fall on the remainder. In taking up that position the Minister apparently believes that the trade of the houses abolished will all go to the remaining houses. I think that we may accept it that he means all the trade, which would mean that there is going to be as much drink consumed in that particular district after licences have been extinguished as before.

Mr. O'HIGGINS

I did not say all the trade.

Mr. BAXTER

The Minister, of course, did not say all the trade, and I do not know what point of view he may have on this. My view is that in no licensing area will the remaining houses get all the trade that was done previous to the coming into operation of this Bill. With the facilities that people now have of getting around from place to place it will be generally agreed that some of the money, perhaps a considerable portion in some districts, that was previously spent on intoxicating liquor in a particular district will go into other districts. Everything tends towards centralisation in these days. We have buses opening up the country districts and taking people from the rural districts who want to do shopping.

We have, in a lesser degree, if you like, much more inter-communication between remote parts of any particular county and the centre of the county than we were previously accustomed to have. Now we will be creating a position, if we pass this section, of abolishing a certain number of licences. We will be imposing upon those who remain in a particular area the liability to bear the cost of the compensation to those who go. I feel myself that the trade left to those people who remain will not put them in a position to be able to do that in justice to themselves. I am not satisfied that all the trade will remain in any particular licence area after a certain number of houses are abolished. There is, undoubtedly, the personal touch. People want to drink in one particular house for particular reasons. They will not go perhaps to the remaining houses, but there is a bigger and more important fact than that, namely, that every day money, which was formerly spent upon intoxicating liquor in the more remote parts of the country, is now spent otherwise —spent, if you like, on motor cars and, in the cities, on cinemas and other forms of amusement. Undoubtedly, in rural areas to-day there is less intoxicating liquor consumed. On the other hand, there may be more money spent upon other forms of amusement, but that money is not being spent in small isolated areas. I am convinced that great injustice and hardship will be done if those who remain in small restricted areas have to carry the burden of paying for other people who were engaged in the trade but have gone out.

I feel myself the better way to deal with this aspect of the problem would be by Deputy Davin's amendment. His amendment seeks to make the whole country the area for the purpose of compensation. I think myself there is a great deal to be said for that. Yesterday we were discussing, on another section, the question of affording facilities in the case of the holding of such events as All-Ireland Final Hurling and Football matches. The number of these events is growing. The inclination on the part of the people living in remote districts to attend events such as these is growing. We have to recognise the tendency of the times on the part of people to get away from the more quiet regions into the centres of activity, and when we come to the levying of compensation we have to consider what would be the effect on the trade if it is to carry this compensation. My conviction is very strong that if the Minister adheres to the section as it stands that section will bear very severely upon people in those parts of the country where to-day the smallest amount of money is spent on intoxicating drink. I urge the Minister's favourable consideration of this aspect of the question.

Mr. MORRISSEY

On a point of order, I want to know if it would be in order to move Deputy Davin's amendment, No. 65, if Deputy Baxter's amendment were defeated.

Mr. O'HIGGINS

Deputy Baxter made it clear that what he really desired was a departure from the Bill rather than the adoption of the county as the unit. As a matter of fact, he urged that Deputy Davin's amendment, taking the entire State as the unit, was even more satisfactory to him than his own conception of the county. I think we could allow this discussion to proceed on the basis that there are some Deputies who object to the area fixed by the Bill for the compensation unit, and let the discussion go ahead on that basis. Deputy Baxter said that taking the area tapped for summary jurisdiction purposes by a particular District Court, it did not follow that the business done by the extinguished licences would, in its entirety, be distributed over the survivors in that area. Of course. I know that. It is not just the case that the thirst of the area is X; that X at present is divided over a given number of licences, say one hundred; that there are twenty extinguished and that, in the future, it will be X distributed over the remaining eighty. One cannot get it quite so satisfactory as that. There will, in fact, be some reduction in consumption, I should say, as the result of the extinction of licences, but I do say that while there is some Y that will represent the reduction in consumption, it can still be eminently good business for the survivors to pay and pay in full for extinction. They would not need to get the entire business of the houses that are extinguished in order to make it a sound and economic proposition for them to go ahead with the operations of the Act.

Now, as between Deputy Davin's conception of taking the entire State as a unit and this small one, this provision in the Bill, there is really very little to choose. I know that Deputy Davin has his eye on the licensed trade in Dublin. He says there are all those wealthy Dublin publicans; why should not they pay for extinctions in Galway, Mayo, Kerry, and so on? There are many counties where there is scarcely redundancy at all, and they also would be paying under Deputy Davin's scheme of taking the entire State as a unit, and then you would begin to hear vocal protests inside the Dáil and outside the Dáil when the licensed traders, let us say, in Leix, Wexford and so on, were paying for extinctions that would lie for the most part in Connaught and the South. I think it is a fairer thing to take the small area where, at any rate, you are keeping as near as it is humanly possible to keep to the conception that the survivors benefit by the extinctions. I know that even in a parish, if you extinguish a licensed house at one end it is very hard to establish that the houses at the other end benefit, but, at any rate, you get a nearer conception of placing the compensation burden on the beneficiaries under the provisions of this Bill. Administratively the other would be easier. The Minister for Finance and the Revenue Commissioners would prefer the State unit, but it is, in fact, less equitable.

Now, on this question of the burden and the proportion that it assumes, I am prepared to write into the Bill a maximum. I think Deputy Johnson's point was sound. The Minister may have the best of intentions and may realise the need for discretion in this matter. He may keep his eye upon the two big factors—the amount of money the State can afford to have out and the burden that the survivors can afford to bear.

He may mean to proceed quite cautiously in this matter, with due regard to those factors. But an overenthusiastic administration, later on, might so force the pace in this matter of the extinction of licences as to impose an intolerable burden on the survivors in a particular compensation unit. That is a just point, and a sound point, and one that requires to be met. I am prepared to meet it. I am prepared to write into the Bill a provision that in no case shall an individual trader in a compensation area be called upon to bear a burden, by way of wiping off the compensation in any one year, greater than the licence duty. Remember that is a maximum. Deputies should not get up and say that licensed traders throughout the country are asked to bear a burden equivalent to their licence duty. They are not. But if I am asked to put a maximum in the Bill, I consider that is a reasonable maximum. As a matter of fact, I think it would take anything up to 8 or 10 years to reach that saturation point in any area, even where a redundancy exists on a great scale. That gives you a measure, at any rate, of our idea of what compensation is going to mean for survivors in a particular area. Viewed in that way, I think the proposition is not very alarming.

If you were to take the State as a unit, you would have people paying for extinctions that they could not possibly be said to benefit by. What has it to do with a licensee in one county that redundancy is being wiped out one hundred miles away? Nothing whatever. And yet the proposal is that he should pay. Why should he pay? We must try to keep the area of charge the area of benefit. That is what the Bill does. You would not be doing that by taking even a county unit, and you certainly would not be doing it by taking a State unit, though, administratively, that would be simpler. If we were not considering the equities, if we were not considering how this would affect individual traders throughout the country, it would be very much simpler to take the State as the compensation unit and to go ahead on that basis. Remember, it is not only a question of the members of the licensed trade in Dublin—that they are wealthier than, perhaps, traders in other areas. They would not be paying more if you were to make the State the unit than the traders in Wexford or Tipperary or any other rural county. There would be grave discontent if you were to ask the traders of Wicklow or Wexford, or any of these counties, to pay for extinction that was not to take place in their areas, and that they could not possibly be said to benefit by. Therefore, I prefer the provision in the Bill, to take the smallest administrative area known to us, the area tapped for summary jurisdiction purposes by a particular District Court—not the area of a District Justice but the area tapped by a particular court—and to say: "We will take that as the unit and, for whatever licences are extinguished there the survivors, at the rate of £7 10s. per cent. per annum for 20 years, shall recoup the State for what it pays." We will fix a maximum which will provide that in no case shall the burden to be borne by any individual trader in a particular area be greater than his licence duty. I think that is a more reasonable proposal than the amendment, and I ask the Dáil to agree to it.

Major COOPER

I desire to support the principle underlying Deputy Baxter's amendment. I am not sure that the amendment itself would pass without alteration in drafting. The principle of making the county the area of charge is a sound one. I suppose, in discussing this Bill, we are all rather prone to rely on our own experience. I should like to give the Minister my experience of the particular licensing area I know best—the District Court area in which I formerly acted as magistrate. In that District Court area there are two villages. I shall call them B and C. Each of them has about 4 or 5 licensed houses. They are on a high road leading to the county town. In addition, another high road comes in at B and passes through B to the county town. If you were to extinguish the four or five licensed houses in B, the traders in C would not get the full benefit of that, because the people going along the second high road do not pass through C at all and they would get their drink somewhere else outside the licensing area. But I think 50 per cent. of the trade of the extinguished licensed houses would go to C, and probably the Minister is right in saying that the licensed traders that are left in C could afford, out of that 50 per cent. to pay for the extinction of the other houses. But three miles away there is another place which I shall call A, on another high road leading to the county town, not passing through B or C at all, and there is a cross-roads publichouse there. That publichouse would, almost certainly, be extinguished under this section. The volume of business is small. There are only 5 houses around it. It depends on passing carters for support. The structural condition and state of repair of the premises is not very good, and the accommodation for the use of customers is unsatisfactory in extent. But if that licensed house is wiped out, the licensed houses in B and C will have to pay the compensation although they will not get the entire business. They will not even get a fraction of the business. The business is entirely a cross-roads business of passing carters. Those passing carters will go on to the next licensed house, which is situate in a different licensing area. They will pass out of that licensing area and into another licensing area, whether they are travelling one way or the other. The result is that traders in that licensing area will have to bear the compensation for the extinction of a house from which they do not benefit in the smallest degree. I do not think they would benefit to the extent of one shilling a day as the result of the extinction of that licence. I think Deputy Baxter's proposal is preferable to that. Even though the Minister has limited their liabilities they are still liable. While I realise that the Minister's proposal is an advance on the Bill, still it seems to me unfair to make these people pay for what they do not benefit by in the least degree. I think Deputy Baxter was too modest. I prefer his proposal to Deputy Davin's, because if you take the country as a whole you must have computation as between county boroughs, urban areas and the country at large.

Mr. O'HIGGINS

I would like to put a question to the Deputy. The Deputy cited a particular case. If you take the county as unit will you not have precisely the same case? Take the case of the wayside house on a road that leads out of the county. If the licence. of that house be extinguished, it is probable that the people in the next county will benefit rather than the people in the county in which the house is situate.

Major COOPER

Possibly the extinction of the licence of a publichouse in Charlestown would benefit the licensed holders in Ballaghy in County Sligo, which is practically contiguous, rather than the licensed holders in County Mayo as a whole. There must be some anomaly, but I think a wide area of charge, like a county, is preferable to a small area. The burden is less serious on the licensed holders of a county than in the case of the licensed holders of a district court area, and assuming that the reduction proceeds pari passu all over the county it will work out fairly on the whole. There is no doubt whatever that if you extinguish the cross-roads publichouse—which I think would be a good thing in many cases— the publicans of the local centre like county town and market town will benefit very considerably, though they may be outside the licensing area altogether. In the Intoxicating Liquor Commission Report, Grange in the Co. Sligo is instanced as one of the places where there is a great redundancy of licensed houses. If you wiped out the licensed houses in Grange the result would be that carters would go on until they would reach Sligo Borough area. They would have their drinks in Sligo Borough area, and yet the traders of Sligo Borough area would not pay anything towards the compensation for the extinguished licences in Grange. There will be anomalies in any system. Unless you get down to the townlands as the area of charge you are bound to have anomalies. But I think there would be fewer anomalies under the county system than under the system of taking the district court area. These areas have not been scientifically laid out. Very often they are on the borders of a county and have no natural centre. There would be scattered licensed houses all over the place drawing their clientele very largely from outside the borders of that particular area. I know that I am asking the Minister to disregard the recommendation of the Intoxicating Liquor Commission, but the Commission did not give any reasons for their recommendation. I think if the Minister would look into this question in detail he would find that on the whole the county would be the fairest and most satisfactory area on which the burden should be laid.

Professor MAGENNIS

The Minister put a question just now to Deputy Cooper: Would not the same situation arise if the county were adopted as the area in regard to outlying public-houses? The thought which that question stimulates is that, in dealing with a concrete problem so complex as this, we shall have to content ourselves with substantial justice rather than with ideal justice. That is, we must accommodate ourselves to the occasion. Now there is a great deal to be said in favour of the Minister's contention that the licensing area should be the area to bear the burden of the cost of compensation for the extinguished licences. I would suggest to the Minister to bear one further fact in mind, that these districts have a history. In the evil past those who ruled this country, or who were in authority in the rural areas, were not those who sympathised with Irish ideas, and certainly not with Irish reformative ideas. They were satisfied to let the Irish race go to the devil or the United States. Innumerable licences with horrible redundancy were permitted in country districts. Now, if it becomes a question of extinguishing redundant licences and the total cost of compensation is to come on an area of limited extent, it is just quite conceivable that because that district has suffered in the past this fearful infliction of too many facilities for the drinking of intoxicants it will be further penalised by the survivors having to bear an undue share of the compensation.

On the other hand I agree with Deputy Cooper in regarding Deputy Baxter as quite too modest. Unlike Deputy Baxter, I prefer his proposal to that of Deputy Davin. Apart from the mere technical objection, which I do not wish to press, Deputy Davin's amendment, if accepted, would merely mean that Section 32, sub-section (1), would read: "There shall be established a fund to be known as the Compensation Fund." That might merely create a National Compensation Fund for the purpose of administration without affecting in any degree the real issue as to which area is to provide the wherewithal.

AN CEANN COMHAIRLE

resumed the Chair.

Professor MAGENNIS

When we consider the proposal to have the entire State as an area of compensation it seems to me that the case made by Deputy Cooper is unanswerable. The complication of the county boroughs and the rural districts creates an insuperable difficulty. We have, therefore, in view of the suggestion that I took the liberty of making, of trying to accommodate ourselves to facts while rejecting the too limited area, and equally rejecting the area of the entire State, to hit upon some happy medium. It might be the province, it might be the county, and it might be, following the Minister's idea of the District Justice area, the area of the Circuit Judge. Deputy Baxter's idea is a sound one. I prefer that he would put forward his own amendment instead of Deputy Davin's because, as I suggest to him, there is no incompatibility between the two. It would be quite feasible to make the Circuit Judge's area the licensing area for the purpose of compensation, and at the same time keep down expenditure, the multiplication of offices, and the keeping of books, by dealing with the Compensation Fund as one in a central office.

Mr. O'HIGGINS

Deputies did not deal very much with the point that it was desirable to keep the area of benefit the area of charge. Deputy Cooper said that if extinction proceeded pari-passu throughout the county the thing would work out fairly enough. The extinction, in fact, will not. Extinction will proceed where redundancy is greatest. Let us take a large county like Mayo or Galway. You will have an outcry if extinctions are proceeding entirely in a particular end or area of the county and if the traders throughout the county are paying without benefit. The point is made that where redundancy is greatest the individual unit is least able to bear the burden. Of course, equally where redundancy is greatest the individual unit is least valuable and the burden will be proportionately small. There are a great many licensed houses throughout the country that, at the moment, would be bought dear at £50. Deputy Lyons shakes his head. In fact, there are licensed houses throughout the country that are doing no business, that are open one or two days in the year in order to preserve the licence, in the event of the miracle happening of its becoming valuable again.

Administrative convenience would lie entirely in the direction of the State unit or any larger unit than the one that is, in fact, in the Bill, for, whereas we will have to have 340 funds, so to speak, credited to the particular areas in my Department and with the Revenue Commissioners under the proposal as it exists, with the county we would have, of course, less, and with the State we would only have one. Deputies can take it without going into details that it would be a much simpler thing administratively to work along the line of the proposed amendments than along the line in the Bill, but if you are going to set up this machinery and to reverse engines on the basis that gave you the excess it will take we anticipate anything from 12 to 20 years to work itself out. If you have continuing discontent arising from the fact that people are paying without benefit then that is an undesirable position. The Bill represents the position that we attempt to keep the area of benefit the area of charge, and with a small area you do that substantially. Deputy Cooper talked about one such area in which there were two villages. We all know that in the average area of a District Court there is simply one village and a rural hinterland. The people in that area for four or five miles around do their shopping in that village. The population of the area radiates into the village for religious services and so on. That is the more common picture of the village and the rural circle around it if you have an outlying licensed house closed down, no doubt it is arguable that the people in the next town benefit as much as the people in the particular village that forms the centre of the District Court area. That is an unavoidable anomaly and you would have it under the county. Take a village where the District Court sits as the unit. It is substantially true to say that extinctions there accrue to the benefit of the survivors. The individual client has no longer that house to go to; he goes to some other. He is as likely to go to the house of A as to the house of B. You are keeping there to the idea that those who benefit pay. But you are departing from it entirely, you are abandoning it, root and branch, the moment you take an area very much bigger than that, whether you take the State or the county. What is the philosophy, what is the basis of the larger area? It is purely arbitrary. Why should a Wexford man pay for the Mayo extinctions, or even taking a big county, why should a man at one end of it pay and continue to pay for ten, twelve or fifteen years for the extinctions that take place at the other end? When you meet a man in the street you must be able to give some basis, some philosophy and some justification for your proposal. It is not enough to say that he belongs to the same trade, and that this is, in fact, a twenty years' loan to the trade, taking it as a whole, to enable it to reduce the intensive competition that exists within it. It is not quite that. If you have traders in one county where there are no extinctions taking place paying, year after year, together with their licence duty, for extinctions at the end of another county, then you will have discontent, and even if you take the county, you will have discontent if the traders at one end are paying for those at the other end. I know there are some Deputies who do not think much of it, but at any rate there it is, and we are endeavouring to keep the area of benefit the area of charge. Whether there should be a basis for a larger unit I do not know. If there is any, it is that you regard the trade as a unit, but is it a unit, in fact? What justification would I have for telling a man in Wexford that he must pay steadily over a period of twelve or fifteen or seventeen years for extinctions in Connaught? None whatever.

Mr. BAXTER

Will there be any part of a county where there will not be any extinctions?

Mr. O'HIGGINS

Yes. There are counties where the redundancy is so slight that one would not bother about them until the heavier redundancy that exists in certain counties had been attended to—that is, in counties where the redundancy is not on such a scale as to constitute a social evil at all in any proportion. The conditions differ very much. In parts of Connaught, for instance, every second house is a licensed house in some villages. I do not agree that there is a case for departing from the small unit. People will understand it. You will have, even with the small unit, a certain amount of discontent when a man at one end of a county is paying for extinctions at the other end, but you keep to the conception that X is the thirst of the area. X minus Y, Y representing some reduction in consumption as a result of extinction, will be divided in future over, roughly, the licensed holders of that village with its rural catchment area. If you get away from that you get away to a region where you have no philosophy, no basis where you would be able to meet a man from a county where no extinction was taking place, and who was paying through the nose year by year in addition to his licence duty. What defence could you make? Simply by the accident of belonging to a trade which became, in parts of the country, overcrowded, by virtue of that misfortune, he was to have his purse tapped year after year for twelve to fifteen years. It is not sound or right. It is not logical or philosophically defensible. That is why I stand for my provision as against these amendments. My provisions try to keep the burden of charge on those who benefit.

Ordered: That progress be reported.

The Dáil went out of Committee.

Progress reported.

Committee to sit again on Tuesday, 8th March.