What does the Minister propose in regard to these amendments?
Control of Manufactures Bill, 1932— From the Seanad.
Minister for Posts and Telegraphs (Mr. Connolly)
We are accepting amendments 2, 3, 5, 6, 7, 8, 9, 10, and 11, with a slight further amendment, that is, that the last line but one shall read "shall be deemed not to operate." We propose to delete the word "not" and to insert the words "be deemed not to" in that line. We are also accepting amendments 12, 14, 17, 18, 19, 20, 21, 22, 23, 24 and 29. We are, therefore, rejecting amendments 1, 4, 13, 15, 16, 25, 26, 27, and 28.
That appears to finish it. The Minister says he is rejecting certain things.
Proposes the rejection of certain amendments.
I am sure that is what it is.
I did not get the Deputy's point.
The Minister cannot reject any of them.
I am asking the House to reject.
We have not got a Mussolini yet.
I move: That the Committee do not agree with the Seanad in amendment No. 1.
Section 1, sub-section (2). Lines 26-27 deleted and the following substituted therefor:—
"(a) a person born in Ireland or a person born outside Ireland whose mother was a resident in Ireland but temporarily absent from Ireland at the time of his birth."
This amendment really deals with the whole problem of citizenship. As Deputies will see, Section 1 (2) states:—
Each of the following persons shall for the purposes of this Act be a national of Saorstát Eireann, that is to say:—
(a) a person born in Saorstát Eireann or the area now comprised in Saorstát Eireann;
(b) a person who at the relevant time is and for not less than seven consecutive years
—that is being amended to "five"— immediately preceding that time has been resident in Saorstát Eireann.
This amendment would simply mean that any person born in Ireland, whether in the Six Counties or here, or who had been resident in the Six Counties, and was still resident in the Six Counties, would be a citizen of the Saorstát for the purposes of this Bill. It also suggests that a person born outside Ireland whose mother was a resident of Ireland, but who was temporarily absent from Ireland at the time of his birth would be a citizen. We feel that it creates a very anomalous position, and would, I think, be entirely out of keeping with the spirit of the Bill itself. I might point out that the child of a French-woman born in France, a French-woman married to a Frenchman, but having a residence in Ireland, would be a national for the purpose of the Bill if this amendment were carried. It goes far beyond the scope of what we intend under the Bill. The difficulty mainly arises owing to lack of a proper definition of citizenship, and for that, of course, we again at the moment take responsibility. We have defined what we think is reasonable in sub-section (2), and I think the House will agree that it would not be advisable to accept the amendment.
There are two points in the amendment. The Minister moving its rejection says that the amendment itself establishes a test of citizenship. The answer to that is that the Bill establishes a test of citizenship. One would not have objected if the test of citizenship now laid down in the Constitution had been accepted in the Bill, but that is not so. A change has been made by the Minister, and a further change is now requested by the Seanad, and as between the two the Seanad recommendation comes nearer to the Constitution than the provision in the Bill.
The Minister also urges the point against this, that it is an anomaly that possibly a Frenchman who has a residence here could become a citizen for the purpose of the Bill. Under the Constitution there are people who cannot claim anything in the way of Irish nationality, who are citizens. There is that anomaly in the Constitution, one recognised as such, and the Bill goes further away from the Constitution than what those who founded the State asked to have laid down as a preliminary condition for the acquisition of citizenship. Leaving over the other matters, until such time as legislation on the question of citizenship is introduced, the status quo, in accordance with the Constitution, should be preserved. There are two other points. I notice the Minister, in speaking in the Seanad, said that the peculiar position had arisen that a great number of people born since the Constitution was framed were not citizens. I should like to have some explanation of that, particularly with reference to the phrase "a great number of people."
The last point of all is that the amendment contains one valuable extension. I leave out the very much smaller point contained in the second part as to whether or not a person should be counted Irish for the purposes of the Bill whose mother, being resident, is temporarily absent when the birth takes place. The main part of the Seanad's recommendation is in the first five words: "A person born in Ireland" instead of a person born in Saorstát Eireann. I notice that the Minister in the Seanad confessed that he did not know what sub-section (2) (b) meant, but said that he presumed that the legal draftsman thought that there was some point to meet. If the Seanad want to extend this by saying that they consider as a national for the purpose of the Bill a person born in Ireland, not a person born in the Saorstát, that is in accord with the best doctrines of Sinn Fein. If we are going to find a centrifugal force here, I suggest that we should accept the words recommended by the Seanad rather than those in the Bill. I do not know that people in Northern Ireland are in present circumstances likely to avail of this chance, but I suggest that it is one that should be maintained.
With regard to my statement in the Seanad, I simply referred to apparent anomalies that existed as regards citizenship under the Constitution, to which the Deputy has also referred. At the moment I have not just at my finger tips a definition that might satisfy the Deputy. I might point out that for the purpose of the Bill we think that five consecutive years' residence in Saorstát Eireann, in our judgment, is a reasonable compromise on this position, and that five years' residence would meet the point that has been raised by Deputy McGilligan. The lack of definition of citizenship, even the definition in the Constitution, I am advised is very unsatisfactory indeed, and it is to be hoped that a proper definition of citizenship will be reached before long.
With regard to the Sinn Fein idea of all Ireland, I am quite in agreement with Deputy McGilligan. He and I both know how desirable it would be to have the people of the Six Counties citizens of this State.
By birth and otherwise, both he and I might have been debarred from being citizens here. It is purely on the residence test that either of us is a citizen here, but we have to remember the conditions and the position that has been created. We cannot close our eyes to the fact that there is a Six-County area partitioned off from part of this country. Legally and politically that territory is outside the scope of our jurisdiction. We surely could not claim to legislate for people who of their own will remain outside our jurisdiction. Nobody would welcome more than I the removal of that barrier or the removal of partition and having the people of the Six Counties citizens here, but we have to take things as they are and under the conditions that prevail it is quite impossible for us to legislate for or to apply the operations of this Bill to people resident in the the Six Counties.
I asked a question seeing that the Minister founded his statement on the basis that this was making a change in the law with regard to citizenship, that is, what he called citizenship legislation. I wanted to know how far he understood the present regulations in regard to the acquisition of citizenship ran to. He has shown by two answers that he does not know. I asked would he state how he would back his statement that a great number of people born in this country since the time of the passing of the Constitution were not citizens. He has not answered. The fact is that nobody born in the country since the date of the passing of the Constitution is a citizen of the country. I do not know how he made the statement with regard to me that my citizenship here was derived from residence. I have my citizenship by reason of a birth test.
As regards the amendments the rejection of which is to be moved, it has been put to me that it is desirable that a very short period should be given to the discussion of these to allow the other discussion to come on. For the sake of the recommendations from the Seanad, I should like that House to know how the recommendations are being treated. If I do not propose to call for divisions in a formal way on these amendments, it is simply to save time. I am vehemently of opinion that the amendment which has been rejected should be carried.
I move: That the Committee agree with the Seanad in amendment No. 2 as follows:—
Section 1, sub-section (2). The word "seven" deleted in line 29 and the word "five" substituted therefor.
I move: That the Committee agree with the Seanad in amendment No. 3:
Section 1, sub-section (2). After the word "been" in line 30 the word "ordinarily" inserted.
Could we have a brief statement of what the insertion of the word "ordinarily" will mean in that clause?
This was insisted upon in the Seanad. I see no purpose in it. The word was inserted against the judgment of our legal advisers and despite my protest. The Seanad seemed to imagine that it will strengthen the provision legally or make it more easily understood.
I move that the Committee do not agree with the Seanad in amendment No. 4 as follows:
Section 2, sub-section (1). After the figures "1932" in line 6 the following words and figures inserted:—"or by a body corporate formed as the result of a reconstruction without change of control of the body corporate by which it was owned on the 1st day of June, 1932."
This amendment would really allow an existing company to continue although, by reconstruction, it had changed as a legal entity and it might increase its capital indefinitely no matter what its nationality might be. This would be an unreasonable extension for existing companies. Existing companies are already catered for by the fact that those in existence before 1st June, 1932, are not interfered with in any way. We do not feel that it is wise to go beyond that. If the whole personnel of the directorate or if the whole share-holding capital were changed and if these companies wanted to extend their activities, we would have practically no control over them if this amendment were accepted.
The Minister seems to envisage only the case of a company which wishes to reconstruct to evade some of the provisions of this Bill. In the times we are living in, many companies are forced to reconstruct with quite a different object. As time goes on it looks as if more and more companies will be forced to reconstruct. It seems as if we were at present crystallising a very small band of companies which, from year to year, will be steadily getting less by reason of reconstruction and other causes. It seems to me that, in their endeavour to protect manufacture, the Government will protect it so well that it cannot be carried on. It is absurd to suggest that a company will reconstruct merely for the purpose of getting over some provision of this Bill. There is quite a larger field for reconstruction and I ask the Minister to reconsider his decision.
I doubt very much if the Minister has properly understood the amendment in the context in which it was proposed to insert it. This amendment is to be inserted in lettered paragraph (d), sub-section (1) of Section 2. Lettered paragraph (d) lays down broadly the conditions for continuing the manufacture in the company. The first condition is that the business was carried on 1st June, 1932. That still remains as a condition. That limits the number of businesses to which this section may have application. The second condition of the paragraph is that the business at the time such thing is done is owned by the body corporate by which it was owned on 1st June, 1932. It is proposed to make a slight change by inserting the words "or by a body corporate formed as the result of a reconstruction without change of control of the body corporate by which it was owned on the 1st day of June, 1932." That is a simple process of reconstruction which does not change the ownership. The third condition, which still continues and overrides everything else is, that "the doing of such thing would, if it had been done on 1st day of June, 1932, have been in the ordinary course or formed part of such business as then carried on." You have these three conditions laid down in lettered paragraph (d). The business must have been in existence on 1st June, 1932. It must be owned by the same body corporate which owned it on 1st June, 1932, and, thirdly, whatever it does must have formed part of the business which was being done on 1st June, 1932. It is proposed to keep all these three things, particularly the first and the third, and to enlarge the second simply by saying that a slight change may take place by way of reconstruction which does not operate to change the control.
The Bill is aimed at control. The control is to be allowed under two circumstances—a time limitation and a limitation by way of operation. The time limitation still remains. As regards the other limitation, it is proposed to bring in a slight change so as to provide for reconstruction which would not, at the same time, mean change of control. It is proposed to reject that. I have heard no reason why it should be rejected. As Deputy Dockrell mentioned, many companies may want to undergo a process of reconstruction in the ordinary course of business and, with the two overriding considerations to which I have alluded remaining, there is no weakening of the Bill by this amendment.
The matter is not quite so simple as Deputy McGilligan and Deputy Dockrell make out. I am legally advised that such a reconstruction might affect the beneficial ownership of the shares of the company even though nominally the control would be the same and the direction of the business would be the same. That is the real reason why we object to this amendment. The reconstruction of the company might very well be operated to ensure that what we look upon as the beneficial ownership of the company would be changed entirely, so that any group of foreign capitalists could come in and have the beneficial ownership of the company. While nominal control would be possible, or apparently possible, under the same management the actual beneficial ownership might be changed if this is accepted.
The amendment does not say nominal change and control. It says "change of control." That there is change of control and that the controlling influence has gone, or the previously owned management does not apply. The amendment deals with change of control and the Court will have to decide what that means. We are told that there might be such change that the beneficial ownership has passed. This Bill is founded on the point that it does not matter who owns the shares so long as the control is in the hands of nationals. That runs through the Bill. It is the control that is owned. I was told that it does not matter how much foreign capital there was so long as the purpose be national. There is no weakening of the phrase which reads: "or by a body corporate... without change of control." If there is no change of control and the beneficial ownership happens to be outside nationals it has got to continue.
I pointed out that the whole spirit of the Bill is that the foreign shares in any company are not to be over fifty per cent. That is running through the Bill and it is very definitely in the measure. What I said is that the beneficial ownership might pass out of the hands of nationals.
But the control cannot.
Whoever holds the majority of the shares can control the company.
This has nothing to do with nominal control.
We feel that the control lies where the shares are held.
We held that view on Second Reading and it was denied.
Amendment 4 is disagreed with.
Yes, again under protest.
I move that the Committee agree with the Seanad in amendment No. 10:—
Section 2, sub-section (1). After paragraph (e), line 20, a new paragraph inserted as follows:—
"(f) such business was carried on in Saorstát Eireann on the 1st day of June, 1932, and such business is, at the time such thing is done, owned by a body corporate the issued shares of which are beneficially owned to an extent exceeding one half (in nominal value) by the individual or individuals by whom the business was beneficially owned on the 1st day of June, 1932, and the doing of such thing would, if it had been done on the said 1st day of June, 1932, or within one month immediately preceding that date, have been in the ordinary course or formed part of such business or have been a reasonable extension of such business as then carried on in Saorstát Eireann; or"
What does this amendment mean?
The real purpose behind this amendment was to insert the words "or within one month immediately preceding that date." There was a good deal of discussion with regard to the inserting of the definite date, the 1st day of June, 1932. It was assumed that by some chance a business might not be operating on that date. I thought the amendment was quite unnecessary, but at any rate the amendment was made.
I want to find out more about this now. This is a new special paragraph and does not displace (e) or (f), because there is nothing in it dealing with these paragraphs. So far as putting in the words "or within one month immediately preceding that date," they are already inserted in paragraph (e) by amendment 8. I think there must be something more in this amendment than we have been told.
It also deals with the extension or any development of the business. Senator Douglas was very anxious to provide that there could be a reasonable extension of the business and that that would be covered by this section. His case was that a certain business might wish to adapt itself to further extension. There was a good deal of discussion as to what was extension or development in a new business, or a transfer from one business to another. We agreed, so long as it was to be taken as a reasonable extension of such business, that that would cover it. The insertion of the words " one month immediately preceding that date" was the main object Senator Douglas had in view.
But the words "one month immediately preceding that date" are already inserted in paragraphs (e) and (f).
But we had to include it here.
In what? This is a new paragraph. It is not ordinary procedure to insert words and then bring them up again merely for the sake of repetition. There must be some idea in the new paragraph and I would like to find out what it is.
That is the only reason I know for it.
Again I must protest. This is a new paragraph and it takes up and deals with most of the matters in the two preceding paragraphs. The Minister said the new paragraph is a necessary extension by way of the insertion of the words "one month immediately preceeding" for a reasonable extension of business, but in paragraphs (e) and (f) we have already dealt with these points. This new paragraph seems to me to be an entire repetition.
In our opinion it was not necessary, but the Seanad insisted upon it. They wanted it put in and we agreed and accepted it.
Not knowing what it meant.
Oh, yes. It is a reaffirmation of these two things. That is the only purpose I can see they had in mind.
The Minister says it is a reaffirmation of what is already in paragraphs (e) and (f).
That is your interpretation.
We could close this discussion if we got an admission that this amendment was accepted by the Minister without knowing what it meant.
But it is a repetition of what is in paragraphs (e) and (f).
Let us look at the general words: "business carried on in Saorstát Eireann on the 1st day of June 1932." As I said the same is in paragraphs (e) and (f). The next paragraph is "owned by a body corporate." This is the preamble to the second part of (e) and (f). Then it comes boldly away from (e) and (f) and says "owned by a body corporate the issued shares of which are beneficially owned on the 1st day of June 1932." Does the Minister see a glimmering of sense even in this amendment?
As I say, it was insisted on by the Seanad, and the main purpose, as I explained, was, or at least what was conveyed to me was, that it was intended to cover a reasonable extension of this business.
Has not the Minister the advantage of the advice of the Attorney-General and some other legal officers to explain what it means so that he could explain to this House what it means. The explanation he has given to-day does not show what it means. Let us take an example. A particular company has a distribution of shares on 1st June, 1932, in the proportion, let us say, of 60-40 per cent.—that is, 60 per cent. national and 40 per cent. non-national. It wants to start a new business on 1st August. If 51 per cent. of the shares have been unchanged, and the distribution not affected thereby, they can go on with the business according to this sub-section. In other words, if the business was manufacturing soap and they found that as one of their by-products they could manufacture explosives, they can go on with that even though the share capital has come down from 60 to 49.
Deputy McGilligan apparently feels that this amendment is quite unnecessary. We felt that this was unnecessary——
That is not my contention at all.
We felt that this was quite unnecessary. The Seanad felt uneasy with regard to this problem of the extension, or the possibility of extension, and it was one of the points on which there was most discussion in that Chamber. If Deputy McGilligan feels that this is quite unnecessary, I will agree to the rejection of it here.
The Minister is now going every way. He was only going two ways up to this.
I am not going every way. I am only trying to point out that we tried, as far as was possible, to meet absurd objections, and in trying to meet them we accepted 20 out of 29 amendments. We felt that a large number of these were quite unnecessary, but we did it to satisfy a certain type of mind which is suspicious of everything we do. If Deputy McGilligan feels that it is quite unnecessary—and to some extent, I agree with him—I am prepared to have it rejected by the House.
I suggest that the whole performance this morning would lead not to the rejection of the amendment but to the rejection of the Minister. Let us have a clear explanation.
I have already explained it, and it is up to the House to reject it or not. I have already explained it and the reasons——
The three reasons were, first of all, that it was to bring in the extension of a manufacture, but certainly not into paragraphs (d) and (e). Secondly, by way of retreat, that it meant an extension of the business.
Those two things were definitely intended by the Seanad.
But not in (d) and (e), because they were already put in Then we were told by the Minister definitely that it was mere repetition. I asked him in what clause and he cannot tell me.
I move that the Committee agree with the Seanad in amendment No. 11:—
Section 2, sub-section (2). The following added at the end of the sub-section:—
(e) where the issued shares of a body corporate are transferred to a bank, being a body corporate, by way of security for an advance and such bank is registered as the owner of such shares in the register of shareholders of such body corporate, such transfer and registration shall not operate to transfer the ownership of such shares to such bank; and
(f) whenever the issued shares of a body corporate cease to be held in the manner stated in the said paragraph (e), such shares shall be deemed to continue to be held in accordance with that paragraph for a period of six months after they cease to be in fact so held."
I also move that the Committee agree with the Seanad in the following amendment to amendment No. 11: "That the word ‘not' in the second last line of paragraph (e) shall be deleted and insert the words ‘be deemed not to."
That the word "not" shall be deleted?
And insert instead: "Shall be deemed not to."
I would like the Ceann Comhairle to read the passage.
At the end of (e): "such transfer and registration shall be deemed not to operate to transfer the ownership of such shares to such bank."
To what paragraph of the preceding sub-section does this have reference?
It is to be added at the end of paragraph (e) of sub-section (2). Do you mean that paragraph of it?
No, no. Sub-section (2) is governed by the preamble "For the purposes of paragraph (b) of the immediately preceding sub-section but not further or otherwise the following provisions shall have effect." And now we are going to add on something. Is not that so?
So far as I am advised that will simply follow sub-section (c).
No, no. How will it follow?
It will come at the end of sub-section (2) of Section 2. That is, that this sub-section will be sub-section (e).
Yes, but (a), (b), (c) and (d) are all governed by the words in lines 45, 46 and 47. They read "For the purposes of paragraph (b) of the immediately preceding sub-section but not further or otherwise the following provisions shall have effect." Therefore, this must apply to paragraph (b).
That is a misprint in the Bill.
I suggest that it should be paragraphs (b) and (c).
I do not quite get the Deputy's point. The fact of the matter was that this new sub-section that we proposed to add was also the cause of a great deal of controversy in the Seanad, and it was felt that a bank owning shares or having shares as collateral would be deemed the owner. Accordingly, the argument was that the banks might have to make an investigation with regard to all their shareholders to find out if they were a body corporate within the meaning of the Act. This further amendment yesterday was put in at the request of the bankers to ensure that there would be no difficulty regarding their holding shares either as owners or as collateral.
Am I to take it now that as well as moving amendment No. 11 we are also moving to amend line 45 by deleting (b) and (c)?
I have made no suggestion of the sort.
I thought the Minister said that (b) was a misprint and should be (c). I want the Minister to deliberate on what he is doing. He is transferring the whole of the provisions of paragraph (c) and paragraph (b). Is that what he really means? I suggest for his consideration—and, if necessary, we can adjourn this to have it considered—that what should be done is to say "for the purpose of paragraphs (b) and (c) of the immediately preceding sub-section." because if the Minister looks at it he will see that what is left here, paragraphs (a), (b), (c) and (d), all refer to paragraph (b) of the preceeding sub-section, but that the new thing we are putting in refers to paragraph (c). Clearly, the new paragraph we are putting in has no reference to (b). It must have reference to (c).
I am advised by the draftsman that a printer's error did take place in this and that what is printed as (b) should refer to paragraph (c).
This is very absurd. Let us read any one of the sub-sections referred to. It stands at the moment "for the purpose of paragraph (b)" and a number of things follow. It was paragraph (b) as the Bill was introduced in the House. It was argued in its reactions on (b), and it was sought to extend it to (d), I think, but that was refused, and, all the time, the argument and the Bill and the framework of the whole operations have proceeded on this, that whatever is in sub-section (2) of Section 2 has relation to paragraph (b) only. A change has been made in the Seanad, and, if the Minister looks through sub-section (1) of Section 2 he will see that the clearly relevant portion is paragraph (c) of that sub-section, but that the other paragraphs (a), (b), (c) and (d) still remain with all the relevance they had heretofore to paragraph (b) and that the change that should be made is not at all the change of amending the letter (b) with the brackets, to the letter (c) with the brackets, but by making the change "for the purpose of paragraphs (b) and (c)." If the Minister will look at it, he will see, I think, easily enough, that (a) refers to a national dying who is the beneficial owner of shares in a body corporate. Paragraph (b) refers to the man who becomes a bankrupt and the operative words are "and at the time of his bankruptcy was the beneficial owner of shares in a body corporate." Surely that refers altogether to (b). It does not refer to (c). We have in paragraphs (a), (b) and (c) death, bankruptcy and trusteeship, and (d) refers to shares held in proportion of holding as between different people and it clearly has reference to (b), but the new thing introduced is "the issued shares of a body corporate are transferred to a bank being a body corporate by way of security for an advance." I think that has clearly reference to (c) but it is such an important point that it would be a good thing to have it brought before the draftsman. We can pass it for the moment and take it up again before the sitting ends. I think it is a matter of great importance.
I agree with the Deputy that it does obviously apply to (b) and (c) now, as this section comes in. I do not know what the procedure will be in this House or what it will be necessary to do. I do not know whether it can be amended now merely as a printer's error or what will have to be done.
Surely it is not a printer's error. Paragraph (b) was always correct. What has happened is that the amendment of the Seanad needs the verbal change of putting in "(c)."
If the House will direct me as to what the procedure is with regard to getting that done——
It can be done now; we are in Committee.
It is consequential on No. 11 and it is a verbal change. I suggest that the matter might be given some consideration. I am putting forward a point of view simply having these amendments before me. I have been told that the draftsman advises that (b) should always have been (c). I do not think that can be correct at all. Taking out (c) would be a verbal change.
Is the Minister moving the rejection of the Seanad's amendment (e)?
There is agreement on No. 11.
Except for the slight amendment in the three words.
You are putting in "shall be deemed not to."
That is so.
There was only one point in the Minister's remarks which struck me as peculiar. He talked about the banks having to go over their shareholders' lists. Surely this amendment refers to quite a different matter. It is not the holding of the bank's own stocks that it refers to but to the pawning of other stocks with the bank. I think the Minister was in error in his reference to that.
I tried to explain that what were concerned were shares transferred to a bank as collateral, and, in many cases, these are transferred to the ownership of the bank in order to secure the necessary banking facilities. Senator Jameson raised the point that, if the amendment stood without the words "be deemed not to," the question arose, then, as to whether a bank could be considered to be the owners of them. I pointed out that the introductory paragraph of the section "for the purpose of paragraph (b) of the immediately preceding sub-section, but not further or otherwise" seemed to me to be adequate covering for a bank, that is to say, that collateral, registered in the ownership of the bank, was owned by the bank, but not for the purpose of this Act, and these words were inserted, after a good deal of discussion, to ensure that it was only for the purpose of this Act that ownership of the shares was not supposed to be in the hands of the bank.
I perfectly understand the point the Minister is making, but, at the same time—I suppose I misunderstood him—I understood him to say that the bank would have to go over the register of its own shareholders. If I am wrong, there is no point in it.
What was pointed out was that this amendment as drafted now eliminates the necessity for that. There are other covering regulations that will cover it, also, but this eliminates the necessity for questioning a bank as an owner of shares in a company.
But is it its own shares?
No, collateral shares.
That is all right then.
I move that the Committee do not agree with the Seanad in amendment 13:
Section 2, sub-section (4). After the word "section" in line 25 the words "andprima facie evidence of such offence has been given” inserted.
We are resisting this amendment on the ground that the Minister will have to prove that manufacture is being carried on. The company or individuals will then have to prove that, for some one or more of the matters mentioned in paragraphs (a), (b), (c), (d) and (e), a licence is not required. We are not clear as to whatprima facie evidence the Minister can give. This is a legal point which, I must confess, I do not understand, but the legal point of view in the Department is that the amendment seems to be almost meaningless. We cannot understand what prima facie evidence the Minister could give. We, therefore, feel that it is quite unnecessary and we propose its rejection.
This amendment, together with Nos. 15 and 16, are the most important amendments that have come down from the Seanad, and No. 13, I think, is one that should be pressed. This Bill is setting up a completely new system with regard to manufactures in the country and breaking into the ordinary freedom of contract that heretofore operated in the country and the privacy of people's business. That being the case, it seems that the Minister should have the onus of proof put upon him, even though he has only to establish in aprima facie way—a term that is well understood—that an offence has been committed.
The Minister must remember that manufacture has been carried on, and therefore the onus of proving (a), (b), (c), (d), (e), (f), (g), (h) would lie on those carrying on the manufacture and the Department does not know whatprima facie evidence there is of any of these things. Such prima facie evidence might be given by the Minister. Take (d). This business was carried on in Saorstát Eireann on 1st June, 1932. Under the Companies Act a body corporate would be registered and would have to register with regard to the date. It is the easiest thing in the world for the Minister to establish a good prima facie case that the business was not carried on on 1st June, 1932, by that body corporate. That is all that is asked in the amendment. The same thing applies to the other paragraphs. Surely it is easy for the Minister to raise the presumption that the business is not the same, is not owned by the body corporate, and is not in beneficial ownership, and the onus shifts back to the manufacturers. As far as most of the paragraphs are concerned this is an interference with business already established, and under these circumstances I think the rule should be that the Minister should have the obligation put upon him of making a prima facie case. That is all that is asked. There are heavy penalties for contravention. In addition to imposing penalties, and imposing a completely new system, sub-section (4) says that the onus of proving the matters mentioned in the paragraphs shall be on the person so charged. I should not have minded if the Ministry had put in this section at all but let the ordinary rules apply. As far as I can understand generally, where matters are regarded peculiarly within the knowledge and control of the people engaged in the manufactures, the onus would naturally shift by the ordinary rules upon these people. Where that case cannot be made, and where matters are not supposed to be within the knowledge and control of the persons charged, the onus would be on those making the charge. If there was no such paragraph in the section the ordinary court rules would apply. The Minister may impose penalties and in addition the onus shall be on the person charged, which is a complete reversal. The Seanad objects and with a very moderate amendment says that the onus should lie on the person charged where the matter is within his control or information and once the Minister has made a prima facie case. That is all that is requested.
I would point out to Deputy McGilligan that there seems to be a good deal of relief afforded in amendment 14, where we are asking the House to agree that the certificate will be accepted.
(a) that he is the beneficial owner of such shares and is a national of Saorstát Eireann, or
(b) that he holds such shares on behalf of another person and that such other person is a national of Saorstát Eireann.
Those will be accepted asprima facie evidence if the facts are certified. This is a legal matter and I am advised that the position should be that the onus shall be on the person proceeded against.
What would that phrase mean—advised legally that this should be?
Not at all. You mean as a matter of policy?
I leave this to the decision of the House. It is purely a legal matter and a question, I suppose, upon which lawyers disagree. It is for the House to decide.
I would like to press for consideration for this amendment. It is very important from the commercial point of view, because I take it all the proceedings under this Bill, when it is an Act, will not come into court. It will be a great help to manufacturers who have not the benefit of skilled legal advice, to get some sort ofprima facie evidence given to them when a charge is made. It also leaves them in the position that they feel they cannot be harassed by undue inquiries because—while it might not be the case here—when they get a couple of inquiries or a couple of requisitions from the Government they usually ask themselves why the Government has a spite against them. I am very glad the Minister is leaving the matter for decision by the House.
When this Bill was first introduced I drew the attention of the Minister for Industry and Commerce to this point, and stated that this proviso could deeply reverse a vital principle in well-established common law, that every man is innocent until proved guilty. If the proposal brought a man into court, and possibly into the dock, on a charge of misdemeanour, and if it is on him to prove that he is innocent of the charge brought forward by the State, that reverses the whole principle of jurisprudence, as practised at present. It may look insignificant under this Bill but I suggest to the House that what has to be remembered is that once we adopt a principle of this character, it will be quoted as a precedent by every succeeding administration, and probably by this administration for a similar proviso in perhaps much more pressing circumstances. I think we should appreciate very warmly the attitude of the Minister in leaving this to a free vote of the House. I would appreciate it much more if he would accept the recommendation. I sincerely hope the House will do so. We are accepting the recommendation simply on the ground that in the present form of the section we are making a serious inroad on a very great protection to civil liberty. If the Minister at a later stage produces an amendment we should facilitate the Government. I am sure the House would go a long way to meet him if he could meet the situation here without infringing on liberty.
With the lawyers, I have gone into the particular method introduced in the amendment, and it seems to me that it is purely a legal business. Some say it does not mean anything while others, such as Deputy McGilligan, say it does. I am disposed to agree with both of the last speakers, that if there is a principle, whereby anything that is now the normal course of law has been set aside, that should not happen. Therefore I accept the amendment.
I move: "That the Committee do not agree with the Seanad in the following amendment":
Section 5, sub-section (1). The words "in his absolute discretion" deleted in lines 54-55 and the words "in accordance with provisions contained in regulations made under this Act" substitued therefor.
The Minister may grant a licence under Section 5 if he is of opinion that the granting of the licence is to enable the applicant to do some or any of the things specified in his application. That is the policy of the Bill and we feel that this amendment would be in contradiction to the whole principle of the Bill. The same applies to amendment 16. We are dealing with amendment 15 now and I ask the House to reject it.
Would the Minister say what principle of the Act is this amendment a breach of?
The Seanad want the words "in the absolute discretion of the Minister" deleted. They want these deleted and we feel that the nature of this Bill and the conditions of this Bill leave it absolutely necessary that the Minister's discretion should operate in the administration of this Bill. We feel that no other method but the discretion of the Minister could be exercised. It was argued elsewhere that a Commission should be set up or that a Special Committee should be set up and we resisted that because we feel that after all the Minister administering the Bill is responsible to the Executive Council who are in turn responsible to the Oireachtas, and that the Minister is the person to exercise the discretionary powers given to him.
We are told now that the principle of the Bill really requires that the Minister should have absolute discretion. That is what the Minister's talk comes to. I want to point out what we are asked to do by the Seanad. We are not cutting out "absolute discretion" and to have everything brought before the House. What is being asked is that, instead of having the Minister acting absolutely in his discretion in each particular case, he will act still within his discretion, whatever discretion the House allows him in accordance with the regulation. The House wants to protect the State from this, that the Minister is to deal at his own will and pleasure with the industries one by one. The amendment wants to have that done by general regulations. The Minister can make regulations but the regulations must be laid down. The regulations when made must be laid before the House. The majority supporting a Government can always get regulations made but they must get regulations made not one by one but in a general series. We are told now that the Minister must have absolute discretion; that he cannot even bring the regulations before the House even though the regulations would be in general terms. One thing you could provide by the regulations would be that you would save preferential treatment as between firm and firm, unless the Minister in each case was able to bring forward evidence that the necessities of the situation demanded preferential treatment for one firm as against another. All that this amendment says is that the Minister must act "in accordance with provisions contained in regulations made under this Act"; and that he must bring these regulations before the House. He may act on the regulations before the House. He is to bring in regulations afterwards. If he cannot get them approved, the regulations will go by the board. That is all that the Seanad asks—not to wipe out the discretion of the Minister absolutely and entirely but to substitute for these words that before the Minister is to act he must have laid down the regulations for his own guidance and that those regulations must be promulgated to the House.
I want to support the amendment. There is a point that is not being brought out sufficiently with regard to the regulations as opposed to the absolute discretion of the Minister. You are dealing with firms who are making application for new licences. Those presumably in a great number of cases may be foreign firms. It would be a great advantage in considering the possibilities of manufacture in the Free State for manufacturers to be able to get the Act, to sit down and read it over and then to read the regulations so as to see if they were able with those regulations to get the permission granted and to secure the licence. It would be a great advantage for a manufacturer to know that under the regulations he would be able to see beforehand that the licence would be granted. But take the position as the Government wish it. The Government wish that the foreign firm should go to the expense of preliminary negotiations over here and then to make special application to the Minister which might or might not be granted. I suggest that there ought to be general regulations on reading which anybody can find out whether he is entitled to get his application rejected or accepted. I think it would be desirable for any manufacturer who had to make a preliminary survey of the possibilities of manufacture in this country to have that knowledge to start with. That manufacturer could then go ahead. But if the Minister were to take out of his pocket something and consider whether the application of the manufacturer ought to be accepted or rejected it would be quite a different matter. I suggest that that is not the way in which legislation should be carried out in this country. This House ought to make its rules so that the people would be able to see what the prospects were of getting permission granted. There are far too much special exceptions and special rejections possible under the Bill.
I pointed out that there are many things embodied in this Bill which clearly indicate what manufacturers requiring a licence have got to do. But there are many other things that must be left to the discretion of the Minister. There are, for instance, conditions in a particular industry where a new manufacturer may want to come in; where a firm may be in a position and be willing and ready to apply for permission but where it would not be desirable to give the licence. Regulations will be laid down but these regulations should and will be in the hands of the Minister. The Minister is always responsible to the Oireachtas. It is impossible in a Bill of this kind to foresee all the possibilities, all the evasions, the possible operations and the various methods and means that may be attempted to get inside the terms of the Bill. Therein lies the need for the discretionary power of the Minister.
Who need not foresee them. There is no question of foreseeing them arising. They need not be foreseen. They can be dealt with under the regulations.
Only to a certain extent.
For all sorts of reasons. We have a number of manufacturers, say, whom we have induced to go into industry here. It may not be desirable that we should allow a foreign manufacturer to operate through dumping an association and creating 51 per cent. of the stock. It might not be desirable to let such a company come in.
You need not do it.
This Bill in its operation will require the utmost discretion of the Minister and I suggest that this amendment would limit his discretion and it would be against the whole spirit of the Bill. The Minister is more likely to be responsible to public opinion and to criticism than he would be under any other method that might be devised.
I think the objections which the Minister has raised with regard to this amendment inserted by the Seanad are not at all well-founded. The main purpose of the amendment is to ensure uniformity of practice within which the Minister may exercise his discretion. The Minister has given one example as to the necessity for having an absolute discretion. The example is this: A company which came within the provisions of the Bill might apply to the Minister to carry on a certain species of manufacture in the country. The Minister, having regard to existing industries carried on here, might desire to refuse such an application. So far as I can see, a regulation would presumably be needed to meet the case which the Minister puts forward. It would be very easy for him to say that licences may be refused on certain grounds. The first ground he could set out would be where the particular class of manufacture proposed to be carried on would be, in the opinion of the Minister, hurtful to existing industries of that class. If a regulation of that type were passed by the Dáil, then within the terms of that regulation the Minister would have full discretion which could not be questioned by anybody.
I think, from the Minister's own point of view, it would be a great saving to him to have specific regulations which would be known to the public and which would be approved by the House. It could not then be said that for some fantastical reason or other, some underground reason, the Minister was refusing particular people permission to carry on business. If the wording of the Bill is left as it is, it will come back on the Minister. Perhaps a perfectlybona fide exercise of discretion by him might be ascribed to improper motives. The Bill gives power to make regulations and ten or twenty different sets of regulations can be framed. It is not necessary to make one set of regulations to govern procedure for all time. The Minister has every power to make regulations which can be exercised by him from time to time. The Interpretation Act of 1923, in accordance with which this Bill when passed into law must be construed, indicates that where any power is given to the Minister it can be exercised from time to time.
From the point of view of people desirous of engaging in industry here it is absolutely essential that there should be some settled, uniform grounds upon which the Minister may exercise his discretion. That will not in any way impair the discretion which is given to the Minister. The regulations can set out in a perfectly clear manner the grounds upon which the Minister can exercise his discretion. If he thinks a particular case comes within these grounds, his exercise of discretion is absolute and final. From the point of view of the Minister, it would be a useful change to import into the Bill the suggestion made by the Seanad.
The Minister for Industry and Commerce, before he went to Ottawa, communicated to this House that he had been approached in advance by certain firms desiring to set up immediately and they requested him to indicate if he would, in face of the then existing situation, grant them a licence when the Bill became law. He informed the House that he was obliged to say "No." I asked him why. The Minister for Posts and Telegraphs to-day mentioned that there is security under the Bill as it stands to the extent that the Minister must answer to the House for his decision. When I asked the Minister why certain firms were given that negative reply he said he could not answer that question as it might not be fair to the firms and it was not in accord with public policy. I sympathised with the Minister. I realised that he might have had confidential information from firms—they might have made a full disclosure to him-and it would not be fair that he should reveal that information. But if he had sets of regulations that had been already approved by the Oireachtas he would be in a position to assert: "I satisfied myself that this firm does not comply with the regulation."
Under the wording of this Bill, I do not think the firm could contest the Minister's decision, because his decision is final. It would, in my opinion, be a much more desirable situation if the Minister were in a position to say. "There are the regulations and this firm does not come within them." It would be open to a Deputy to produce facts in the Dáil to prove that the firm did come within the regulations. A firm might authorise a member of the Dáil to do that and give him confidential information. That would relieve the Minister of the obligation not to divulge secret information. The Minister, under the Bill as it stands, is given possession of certain information and, when he is called to produce the safeguards promised to the Dáil, he is obliged to say that it would not be fair to the firm to divulge the information and it would not be in the interests of public policy.
- Aiken, Frank.
- Bartley, Gerald.
- Beegan, Patrick.
- Blaney, Neal.
- Boland, Gerald.
- Boland, Patrick.
- Bourke, Daniel.
- Brady, Bryan.
- Breathnach, Cormac.
- Briscoe, Robert.
- Browne, William Frazer.
- Carney, Frank.
- Carty, Frank.
- Clery, Mícheál.
- Colbert, James.
- Cooney, Eamonn.
- Corry, Martin John.
- Crowley, Fred. Hugh.
- Crowley, Tadhg.
- Curran, Patrick Joseph.
- Derrig, Thomas.
- De Valera, Eamon.
- Dowdall, Thomas P.
- Flinn, Hugo V.
- Flynn, John.
- Flynn, Stephen.
- Fogarty, Andrew.
- Geoghegan, James.
- Gormley, Francis.
- Gorry, Patrick Joseph.
- Goulding, John.
- Harris, Thomas.
- Hogan, Patrick (Clare).
- Jordan, Stephen.
- Kennedy, Michael Joseph.
- Keyes, Raphael Patrick.
- Kilroy, Michael.
- Kissane, Eamonn.
- Lynch, James B.
- Maguire, Ben.
- Maguire, Conor Alexander.
- Moane, Edward.
- Moore, Séamus.
- Murphy, Patrick Stephen.
- Norton, William.
- O'Grady, Seán.
- O'Reilly, Matthew.
- O'Reilly, Thomas J.
- O'Rourke, Daniel.
- Powell, Thomas P.
- Rice, Edward.
- Ruttledge, Patrick J.
- Ryan, Robert.
- Sexton, Martin.
- Sheehy, Timothy.
- Sheridan, Michael.
- Smith, Patrick.
- Traynor, Oscar.
- Walsh, Richard.
- Ward, Francis C. (Dr.)
- Alton, Ernest Henry.
- Anthony, Richard.
- Beckett, James Walter.
- Bennett, George Cecil.
- Blythe, Ernest.
- Brasier, Brooke.
- Broderick, William Jos.
- Byrne, Alfred.
- Byrne, John Joseph.
- Coburn, James.
- Collins-O'Driscoll, Mrs. Margt.
- Conlon, Martin.
- Cosgrave, William T.
- Davis, Michael.
- Desmond, William.
- Dillon, James M.
- Dockrell, Henry Morgan.
- Doherty, Eugene.
- Duggan, Edmund John.
- Finlay, Thomas A.
- Fitzgerald, Desmond.
- Fitzgerald-Kenney, James.
- Good, John.
- Gorey, Denis John.
- Hayes, Michael.
- Hennessy, Thomas.
- Hennigan, John.
- Hogan, Patrick (Galway).
- Keating, John.
- Keogh, Myles.
- Lynch, Finian.
- McDonogh, Fred.
- MacEoin, Seán.
- McGilligan, Patrick.
- Minch, Sydney B.
- Mongan, Joseph W.
- Morrissey, Daniel.
- Mulcahy, Richard.
- Myles, James Sproule.
- Nally, Martin.
- O'Connor, Batt.
- O'Mahony, The.
- Roddy, Martin.
- Thrift, William Edward.
I move: That the Committee do not agree with the Seanad in amendment 16:—
Section 5, sub-section (2). The words "the Minister thinks proper and states in such licence" deleted in lines 20-21 and the words "shall be in accordance with provisions contained in regulations made under this Act" substituted therefor.
It is felt that it would be quite impossible to get any blanketing regulation that would cover all the terms and conditions for the various companies, and that there would, inevitably, have to be different terms applying to different licences. That will probably be as much in the interests of the intended manufacturer as in the carrying out of the Act. It is felt that it would not be possible to lay down any general regulation covering the terms under which any particular company would act and we, therefore, ask the Dáil to reject the amendment.
Will the Minister not lay down regulations for the guidance of his own Department so that we may have continuity of action? Will regulations not be necessary in that case for the guidance of his own Department? Surely some regulations are necessary for guidance in a matter of this importance.
Regulations will be necessary and are provided for under Section 11, but this would limit the power of the Minister with regard to the conditions under which a licence would be granted, and certain conditions will be necessary in certain licences. There will be no uniformity of regulation embodied in the licence. We have had already one or two cases that are under consideration where manufacturers coming in would want almost certain guarantees before they would start operations, and such a clause would inevitably have to be embodied in such licence to give the manufacturer himself the necessary protection.
This amendment is consequential on the last but there is a point of difference and the point of difference is important. What is at issue is not the difficulty of making the licence fit new circumstances or different occasions because that can be done under the regulations. These points need not be foreseen. They can be dealt with as they arise. The regulations can be framed so as to meet the new circumstances but the regulation after the event of the granting of the licence should be brought before the House. There is no question of hardship involved and no question of holding up the Ministry in the praise-worthy work of promoting new industries. The only issue is secrecy. Bring the regulations before the House. Make them as specialised to the circumstances as is necessary but bring them before the House.
I want to point out that the Minister in making his regulations is making offences because this Section 5 must be read in conjunction with the next Section 6 which states:
If any person who is the holder of a new manufacture licence fails or neglects or refuses to comply with the terms and conditions subject to which such licence was granted, such person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds.
The Minister is creating an offence in so far as he is creating conditions and putting them in the licence. Although these may have to be proved in court for the purpose of a summary conviction, it is not thought desirable to bring them before the House after the event. That is the only thing that is at issue. The whole thing is that the Ministry wants secrecy, not the secrecy that is understandable because the secrecy that is understandable appertains, say, to the collection of statistical information for an individual business. You require a certain amount of confidence in these matters and therefore would require a certain amount of secrecy but that secrecy can be covered by a regulation of a general type. All these regulations even though of a general type should be brought before the House. Again, I repeat, after the event of the granting of the licence.
I move that the Committee agree with the Seanad in the following amendment:
Section 10, sub-section (4). The words "and whether he is or is not a national of Saorstát Eireann" deleted in lines 1-2.
We do not know what is the meaning of this amendment.
This is another Seanad amendment to which we agreed. This amendment was inserted in the Seanad and it was agreed to on the advice of our legal adviser. The amendment was put up by the Seanad.
What is the explanation?
That is the most lucid explanation the Minister has yet given.
The Minister referred to the legal adviser. Is the Minister referring to the Attorney-General?
No, the legal adviser in the Department.
Was the Attorney-General asked to give an opinion on this? He might have two opinions on this also.
We are quite agreeable to have the amendment rejected here. It was only on the wish of the Seanad that it was accepted.
That is the most utter nonsense. We ask what is the meaning of the amendment. The Minister proposes to accept it. What is the meaning of it?
Sub-section (4) reads:
The Minister may from time to time serve a notice in writing on any person who holds any shares in a body corporate carrying on a business to which this section applies requiring such person within twentyeight days after the service of such notice to send to the Minister a return stating whether he is or is not the beneficial owner of such shares and in respect of such (if any) of the said shares as are held by him for other persons, the names and addresses of such other persons, specifying in the case of each such other persons the number and nominal value of the shares held for and whether he is or is not a national of Saorstát Eireann.
The objection in the Seanad apparently was that they did not want a person in giving information about shares to state whether he was or was not a citizen of Saorstát Eireann. That is the meaning of the amendment so far as I can read it.
Just in so far as the Minister can read it?
Yes, that is the understanding.
The understanding! What is the meaning? It is not the reading of it we want. May I put the question in another way?
I think it is quite logical as it reads now.
It was always logical, even as it stood before. It is not a matter of logic. It is a matter that the amendment is being accepted. Has the Minister any further information?
It was felt in the Seanad that the Minister should not ask such people in giving information, whether the shares were held by a national or not.
That is not the point. It is whether he is or is not a national, not if the shares——
Is there any penalty for not answering the question?
Not so far as I know.
The Minister does not go very far in his reading.
It is reducing the nature of the question.
Look it up, again.
The section would now read... "a return stating whether he is or is not the beneficial owner of such shares and in respect of such (if any) of the said shares as are held by him for other persons, the names and addresses of such other persons, specifying in the case of each such other person, the number and nominal value of the shares held for him." I think that is quite clear.
It is so clear that if the Minister reads it a second time he will become more perplexed than he is.
I am not perplexed.
The Minister said there was no penalty under this section. Sub-section (6) states:—
If any person on whom a notice is served under this section either refuses or neglects to make a return in accordance with such notice or makes a return which is flase or misleading in any material respect, such person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding twenty pounds.
The Minister said there was not any penalty in answer to Deputy Cosgrave. If the question is a proper one to ask, if the information that comes back does not give a proper return, then there is an offence committed. This is the Bill that was violently boosted about, a Bill about which the Minister made such pother and he does not yet know that this is an offence. I am making this point. It is apparently considered desirable to have the Minister empowered to ask for certain information and it was at one time considered desirable to have him empowered to ask for this information— is a certain man or is he not a national of Saorstát Eireann? It is now proposed not to give the Minister power to ask that question. This is a fundamental question and all the others that may be asked may well turn on the point as to whether he is a national or not. Why is it proposed to except this from the questions that may be asked by the Minister?
We acceded to the urge of the Seanad that we should not ask this question. That is all I have to say about the matter. We agreed to their proposal that these words should be eliminated. With regard to the question raised by Deputy Cosgrave, I misunderstood him when I stated that there was no penalty. I assumed that he asked whether it would be a penalty if we asked the information which it is now proposed to eliminate. If these words are eliminated that question does not arise. If the Dáil insists on leaving the Bill as it is and rejecting this amendment we would be all the happier and there would be a penalty.
I have only one observation to make in connection with this recommendation and that is that its influence on the Minister and on the Ministry has been very remarkable.
I have only one other observation to make on this recommendation: We were talking for a few days past about how revenue could be raised. I suggest that the Senator be put on as a comic turn at the Theatre Royal explaining a Bill, and we would get plenty of money.
The Deputy specialises and always did specialise in turns of that nature.
You are giving the turn this morning.
I agree. I have always given the Deputy a turn. The Deputy has exerted his legal ingenuity to find out little, trifling, legal technicalities on which he can trip a non-legal person. I have made up this Bill. It is a most intricate and difficult Bill and there is not a section of it on which an astute and clever lawyer could not trip up anybody operating it. One thing one has always to remember about the Deputy is that any Bill not drawn up by him for the Department of Industry and Commerce or the Department of External Affairs is condemned. One more remark before I sit down——
Are we discussing Deputy McGilligan or the Bill?
Deputy McGilligan has introduced personalities and I want to make my come-back. I have only one regret about Deputy McGilligan. That is that his ability is completely over-shadowed by his nature. It was a tragedy that when the Lord was giving him or thought He was giving him human blood, He poured vinegar into his veins instead.
May I ask the Minister for what purpose the sub-section exists at all having regard to the amendment? I ask as a matter of curiosity, purely and simply.
It is not even curiosity on the part of Deputy Cosgrave; it is petty debating tactics and I do not propose to answer the question.
If these words had been left in they might have been a service to the Ministry, but they are taking them out.
Is the Minister accepting the Seanad amendment?
Without knowing what it means.
I have explained what it means and the reasons for its being accepted.
May I point out that we now have the information that the elimination of the phrase "and whether he is or is not a national of Saorstát Eireann" is a matter that requires legal astuteness.
I am not referring to your analysis of this particular matter.
Then the Minister is referring to previous matters such as that which was going to make complete nonsense of the Bill were it not for the amendment which he had to accept—where he had certain amendments relating to paragraphs which were not the proper ones.
A draftsman's error.
The Minister has that habit. He went to the Seanad and complained of the Civil Service as having blundered. It does not take one to be long in this House to learn who is likely to make the blunders. The blunderers are discovered.
That is a matter for the House to decide.
The House had an opportunity of deciding it this morning. As regards that tariffed article, vinegar, may I say that I prefer my own vinegar to the milk of human kindness which has got so curdled in the case of the Minister.
I move that the Committee agree with the Seanad in amendment 23 as follows:—
Section 10, sub-section (6). After the word "thereof" in line 16 the following words inserted:—"in the case of a first conviction to a fine not exceeding ten pounds, or in the case of a second or subsequent conviction".
I move that the Committee agree with the Seanad in amendment 24:
Section 10, sub-section (8). The following words deleted in lines 24-26:—"or by leaving it with a person over the age of sixteen years at the premises where the person to whom it is addressed carries on business.
I move that the Committee disagree with the Seanad in amendment 25:
Section 11, sub-section (2). The word "if" deleted in line 34 and the word "unless" substituted therefor.
Under this provision regulations made by the Minister are valid and can be acted upon. When laid on the Table of the House, if either House wishes to annul these regulations, they have that power without prejudice to anything done previously under the regulations. This amendment would change that. It would provide that the regulations would have to be laid on the Table of the two Houses and if approved by both Houses would then be valid. We ask the House to reject these three amendments on the ground that this House or the Seanad could deliberately hold up the operations of the Minister under the Act if this were done.
In amendment No. 26 "sub-section (3)" should read "sub-section (2)."
I wonder whose error is that? I do not think that these regulations make any difference now. If certain other amendments of the Seanad had been accepted, then the regulations would become a matter of importance. As it is, the Ministry can do anything at its discretion, but if the Minister chooses to submit himself to the process of regulation the regulation may come before the House. It is rather evidence of the type of mind under which we have to live at the moment when we are told that to change the form of regulation-making into that desired by the Seanad would enable the Oireachtas to hold up its Minister. I did not know that the Oireachtas had any other purpose than to hold up the Minister when they thought he should be held up and to give him freedom when they thought he should be given freedom. However, as the regulations have been reduced to the small limits that they have been, it does not matter what happens them.
I move that the Committee do not agree with the Seanad in the following amendments:—
26. Section 11, sub-section (3). The word "either" deleted in line 34 and the word "each" substituted therefor.
27. Section 11, sub-section (2). The words "annulling such resolution" deleted in line 36 and the words "approving of the regulation" substituted therefor.
28. Section 11, sub-section (2). The words "be annulled accordingly" deleted in line 37 and the words "cease to have effect" substituted therefor.
I move that the Committee agree with the Seanad in amendment 29:—
Section 14. The following words added at the end of the section:—"or to agriculture or to the altering or repairing by a retailer of an article intended to be sold retail by him."
What about the end of it—the altering or repairing by a retailer?
The Bill might have seemed to handicap or interfere with the ordinary minor alterations that have to be made, particularly in the clothing trade. It was on representations from the clothing trade that this addition was put in.
That refers only to clothing?
And with regard to the other things embodied in the amendment—"or to agriculture or the altering or repairing by a retailer of an article intended to be sold by him."
It is the drafting of this amendment which makes me curious. I can understand the omission of agriculture by a special amendment put in in Section 14, which already exempts milling. "This Act," the section states, "shall not apply to the process of milling wheat or the adapting for sale at a mill any product of wheat milled at such mill" or to agriculture. We come on to the other matter of altering or repairing by a retailer of an article intended to be sold retail by him. I ask those interested to look back at the definition section. Previously, we had not a definition of "adapt for sale." At some stage of the passage of the Bill through this House, the definition, as it now stands, was put in—"the expression adapt for sale includes pack, bottle or label for sale, but does not include the packing, bottling or labelling by a retailer of an article intended to be sold retail by him." At that time, an effort was made in this House to find out whether this was intended to apply to manufacturers as ordinarily understood or to the retail business. We were told that it was intended not to have application to the retail business. An amendment was put down to exclude the retail business as such but that was not accepted. Later, we find ourselves in the peculiar position that Section 2 —the operative section—does bring in the very words which are now taken out in part—altering or repairing. Section 2 says "it shall not be lawful for any person who carries on a business by way of trade for the purposes of gain to do any of the following things in the course or as part of such business, that is to say, to make, alter, repair, ornament, finish or to adapt for sale any article, material or substance or to adapt for sale any article, material or substance..."
We now come back to the position where alteration and repair goes into the operative section without any relation to manufacture. Alteration or repair may be done as a separate operation when the goods are sent back. It might be done in cases of retailers. We have an extension of the whole measure by the phrase "adapted for sale." Now we exclude where necessary in Section 2 the general words. We had a refusal to accept retail, as such, or any one of those smaller matters as done by the retailers on goods for retail. Now we find that we have this back again in the last section but one. What is to be the repercussions of this upon Section 2—the main section of the Bill? The Minister gave us as an explanation that the main contention upon which his mind turned in accepting this amendment was on the repair of articles of clothing. That very example was brought up in this House when a similar amendment was not accepted. What is it that has changed the mind of the Ministry? Why do they extend alteration if done by the retailer for the purposes of sale? Do they intend to limit it or is it to be comprehensive of all retail goods? If so, why give the definite suggestion here: get it out of retail? It was an obvious suggestion at one time.
I understood the suggestion, all through the Bill, was it had nothing to do with the retail trade. In spite of that it was pointed out by a Senator that quite a number of large manufacturing firms who could be considered manufacturers and wholesalers could, at the same time, be considered as retailers if they kept limited staffs for altering goods already on show, and on sale, for retail here. It might be argued that they were evading the Act, that they were manufacturing outside and that these alterations and repairs would be carried on for the purpose of the Act.
The Committee disagrees with the Seanad in amendments 1, 4, 15, 16, 25, 26, 27 and 28; and agrees with amendments 2, 3, 5, 6, 7, 8, 9, 10, 11—as amended—12, 13, 14, 17, 18, 19, 20, 21, 22, 23, 24 and 29.
Amendments reported accordingly.
On amendment 11, I want to know what is going to happen to that. It is a matter, I think, that still requires a little bit of consideration. If the Minister comes here with the suggestion that he wants to get the letter, instead of the paragraphs in sub-section (2) of Section 2, changed to (c) that is not provided for in the amendment. It does not come as an amendment from the Seanad because the whole Bill was argued as if Section 2 (2) had reference to paragraph (b). If it is amended an amendment of that kind is not provided for. The amendment is one of substance and should again come before us. If it merely changed by putting in an additional (c) then I agree.
The Chair has taken the amendment as reading "For the purposes of paragraphs (b) and (c)," in line 45, page 3 of the Bill as passed by Dáil Eireann.
That was accepted rather casually I am afraid. I understood that there was some consideration to be given to the matter.
It was taken by the Chair that that was the amendment.