I am constrained to support this measure in view of the emergency but there is a natural and general dissatisfaction regarding the administration of the law since the powers were given. Take just one case. Quite recently, the members of the Dáil, I think, have been presented with 17 of those Orders. They deal with a whole variety of subjects— paraffin, motor spirit, wool, waste paper, personal injuries, motor lorries, fuel, thread, textiles, creamery butter, woollens again, sugar, pigs and bacon, the use of fire-arms in holding prisoners by the military, hose tubing and pipes, marble chippings and laminated springs. In the compilation of those Orders it would appear as if every effort was made to mystify people and where extracts are taken from previous Acts a lot of time is wasted in looking up the extracts and making the necessary annotations and alterations in it and then they are only for a short period. In addition to that, those Orders are issued some time after the date upon which they have been given the force of law or rather the date upon which they are signed. I am not aware at present of the exact date upon which they become law. Some Orders that we have received now go back to the 13th June and they have been in operation for some time presumably. One is dated the 6th June. I suppose there is a regulation regarding the method of their issue but they do not appear to be issued to members of the Dáil in any sort of regular order. Order No. 173, to which Deputy Dillon made reference, is one which would not have passed this House. The House, unless I am very much mistaken as to its temper, is not at any time going to give authority to a Minister to delegate his power to an officer of his Department and to give him practically a law-making authority with regard to a matter affecting the public.
Last year, a very fair criticism of this Act was made by Deputy O'Sullivan, but a real objection which lies to this Bill is to be found in the amendment put down by Deputy Norton, which, if it were not for the emergency, we would be bound to support. That Order ought to have been introduced here. If a case were made for it, particularly at the present time, there is no doubt whatever that the Order would get fair consideration. A similar Order was made either in Northern Ireland or in Great Britain, based on a far better method of dealing with the problem. Order No. 83 was not very long in operation until an amending Order came along, and further amendments have been made since. There does not appear to be any guiding principle in connection with the operation of that Order. Let me give just one example. The wage taken as a rule is one of 50/- a week, and persons with that wage are entitled to consideration in respect of cost-of-living bonus or an improvement in that wage. Recently there have been added to the list of persons exempted from the operation of the Order persons earning from £3 to £6 per week. I enter no objection to the £3 a week, but I find it difficult to justify to any person outside who speaks to me about the Order the refusal of one class of citizen with £3 a week and allowing others with up to £6 a week to have their remuneration considered. That was done by a single clause in one of the amendments to this Order quite recently.
Let me give one illustration as to how objectionable this present system is. I recently had a communication from a neighbour of mine. He is in receipt of home assistance and he gets some unemployment assistance, as well as milk and other supplies in kind, under the Finance Act of last year. These amount to a sum of approximately two guineas per week. He has nine children and he was recently served with notice to go to work at a place eight miles distant for a wage of 36/-. He is a hard-working man, but he said that he could not, in justice to his family, take on that work. That is typical of cases which, I presume, were it not for this Order could come under review.
We are practically deluged with these Orders, and, at a time when there are complaints of a shortage of paper, they are furnished to us bilingually. I raised this question on the Vote for the Department of the Turf Controller. There is no objection to having the translators providing a second page, keeping it in the office and compiling it into a volume to be published at the end of the emergency, but it is not necessary at present, when we are endeavouring to save paper, that the ordinary citizen should have furnished to him an Order of eight pages when four pages would suffice. If there is need for conserving supplies, we would do no injustice to any person on our staff by keeping the records and having them published subsequently.
These Orders would have very much more respect from the public if greater care were taken to decide matters involved in them, prior to their issue. Let us take one case which has occasioned very grave dissatisfaction all over the country—the coupon system for clothing. It was introduced on 8th June and this is 1st July. It was altered within three days of its issue, altered the following week and it has been altered since. We ask for respect for our laws and their administration, and for the giving of authority to Ministers, and surely we may expect that an Order issued by a Minister will have a longer life than three days without alteration within a week, within a fortnight and within three weeks. The disturbance occasioned by these alterations is really serious for people who cannot afford time to study them. Take the case of a person who parted with coupons for portion of a suit, a dress, handkerchiefs or articles of that kind. The retrospective clause here entitles that person to go back to the shop and ask for the return of coupons. That causes trouble and inconvenience for the trader and involves a double journey by the purchaser and all because of a hasty or panicky decision regarding the terms of the Order.
In the issuing of these Orders, two Ministers deal with one matter, namely, fuel. One regulates what is a turf area and the other what is a coal area, and quite a number of Orders have been issued and amended in respect of those two items. One Minister sticks to the original description of various places, Donegal being his first county and Sligo his second, and he makes up the different counties in some manner suited, I suppose, to the convenience of his Department, or, perhaps, in a haphazard fashion, while the other arranges them in alphabetical order, with the result that the person studying these Orders has to tick off the counties at the expense of his time in order to find out what alterations have been made. Very often, when we are amending Acts of Parliament here, we get simply a reference and we deal with it in that fashion. In this case, they might have added a county, an area of a county, a county borough or some other simple description showing the alteration made. That is as far as the system has gone up to this.
There are other matters which can be dealt with under other Votes, as, for example, censorship, and so on, but when we come to the alterations that are proposed here, they are to some extent alarming. There are three main alterations. One is the retrospective clause. All Legislatures, as they mature, object to retrospective legislation. The official mind disregards all these human objections. The official mind is merely a machine which wants things in a certain order. If it finds a difficulty, a huge machine is brought in to flatten out something for which, possibly, a pound weight would have effected the same result. Retrospective legislation has always been condemned.
Now, according to the discretion we have got, the reason for this form of retrospective legislation is to enable certain things to be easily effected, but my interpretation of this clause, as it stands, would be that it gives very much more power. From my experience, both in and out of office, it appears that once the power is there, the official mind only knows how to use it, or, to put the matter better, once the power is there, it is bound to be availed of for every purpose other than that for which it was instituted.
Now, take the second case, and the second case is really disturbing. As this stands, on any particular case—on any case, and I am taking now the most extreme criticism which is likely to be passed in connection with this matter—a man may be prosecuted for not tilling. An Order comes out on the day that he gets his prosecution, altering the penalty. Now, what is that man's mind on the subject? Is it not that the Order was specially designed to hit him? Of course, I know quite well that that is not the intention, but can anybody persuade that man, who is going to be affected by the Order, that that was not the intention? I do not believe that a choir of angels would convince him of it. Now, why should that be done? It is said that the tillage Order has not been complied with. Well, there is a legal right that citizens, assuredly, ought to be able to exercise, and if it is our business to pass laws, we should be able to pass them in such a way as to deal with all cases, and if a man finds that the State cannot secure a prosecution against him, he is entitled to that right. You will get no respect for law if you ever depart from that principle.
The tillage Order, generally, has been accepted very well all over the country, but how has its administration been regarded, or what is the manner in which the Department has seen to it that the tillage Order would be put into operation? One case came before me; I do not know whether it is descriptive of many cases or not, but it was mentioned to me by a farmer who came up here. He had only just purchased land which had been used by a neighbour in the previous year; it had been let in conacre. He asked if the sale was popular and was told that it was. In any event, the land was put up for auction and he bought it, but he was not ready to till it at the moment, and in any case he wanted to give the same advantages to the people who had been using the land prior to his purchase of it. There was no bidding for the land, but within, I think, 48 hours, an official from the Department of Agriculture came along, took possession of the land, and handed it out, at, I think, £1 an acre. Obviously, that was an unjust thing to the man who had bought the land. Now, if there are other cases of that sort, if there are other people going to be mulcted in very heavy fines in cases of that sort, it will only lead to disrespect for the law. In passing this law here, we should not disregard circumstances which ought to be taken into account, and which would be taken into account, possibly, in any court. We concern ourselves here with fixing a minimum penalty, but the minimum penalty in this case is really a maximum penalty, and I do not think that the penalty here is a just one.
I think that this is a penal law. Everybody knows what the canon law interpretation of a penal law is: that a person is entitled to evade it and to take every opportunity of evading it, but that a generous law should be interpreted strictly. Assume, for a moment, that these fines are imposed. What happens? It may be that the persons who are fined will be ruined. Now, the purpose for which the tillage Order was passed was to secure the provision of food—to get food. These penal restrictions will not get us the food. They may, perhaps, compel certain people, who would otherwise be lax, to till, but if the axe falls in particular cases on persons who, for one reason or another, were unable to do the work, and if the operation of our law is unjust to them, or does an injustice to them, the effect is not going to be good. Assuming, for a moment, that a man had a family of five or six children and dies, let us say, in February. The man has been ill, let us assume, for a month or two previously, and has left the place in some debt, as a result of which his wife finds difficulty in undertaking the work. This law, if it is passed, is going to deal with her case in just the same way as with that of a well-to-do man, with plenty of capital, stock and plant, and all the means necessary for doing the work. Would it not be far better, in a case of that sort, to leave some discretion to the justice, rather than what we have here: telling him that under no circumstances can he exercise his own judgment and discretion in dealing with a case of that sort?
The case that has been made in connection with this matter is a very good case: that the community requires food. So it does, but it is not depending absolutely on the particular farmers in question. In the case of a person who waters milk and is prosecuted for it, and who, by reason of his iniquity, occasions the deterioration in health of whole families and large numbers of children, we do not follow him up with penalties of the same sort as we have here, and it is much the same kind of thing in the long run. The official mind is always in favour of these severe penalties, and in certain circumstances it may be that you must have a severe penalty, but I have never yet met a jurist—a person who is accustomed to the administration of the law and who has had any experience in administering the law—who would agree that in the case of penal laws of such a kind a judge should be merely a machine. To that extent, I think, there is a case for a real modification of this measure. If there were widespread evasion and if people were disinclined to respond to their national responsibilities, there would be a stronger case for considering severe penalties, but, as has been said, in imposing severe penalties one must always temper justice with mercy. By doing so it will probably produce a better effect in the long run.
I also object to the proposal to give the Government power to declare the punishment which may be awarded in particular cases. It would be far better that that should be done by the Oireachtas. We should not let it get into the people's heads, in connection with the administration of the law or the ordinary functions of Government, that there is a body sitting in Dublin bent upon pursuing somebody in some part of the country. If penalties are to be inflicted, then let us have behind them the full power and authority of the Oireachtas. We should not leave it open to anybody to say that we gave authority to any section of the Oireachtas to change the law, at a moment's notice, so far as penalties are concerned. If we do that, we will damage the reputation of this House. In my view, power of that kind will not strengthen the Government. It will not call forth what we all desire, namely, a general acceptance of the law.
The official mind is very much opposed to those who went into court and defended the prosecutions brought against them in connection with the tillage Order principally. That is one of the disadvantages that both Governments and officials must put up with. It happens in nearly every country at some time that reverses of that kind will take place. It is almost impossible to frame legislation that will turn out to be foolproof. Goodness knows sufficient power has already been taken to ensure that, in these cases, whatever regulations are laid down should be in accordance with the law and be complied with. I think it is a very grave mistake—an error of judgment— to go beyond what is called the ordinary law which has no such penalties as are being provided in this Bill. I think that some of the things in it might be described as persecutions rather than prosecutions.