On Section 6, Sir. The words used in the section are: "For the purpose of removing doubts", and I should like to have some information as to what is the intention of this section. In the original Act—that is, the Emergency Powers Act, 1939— certain powers are given in Section 2 (1). One might almost say that they are omnibus powers, and then sub-section (2) of that section of the Act sets out a number of individual authorisations or special powers, covering some two or three pages of the Act. Now, as to what the doubts are, I do not think that was explained on the Second Reading of the Bill. I took it that so far as the enumeration of certain specific powers is concerned it meant that it was placed beyond doubt that there was power to do those things and that there was reserved, in Section 1, other powers over and above those which were so set out. Perhaps we would hear what are the precise doubts that are being dispelled by this section, as it is strange that, having had the Act in operation for the best part of three years, same question, of which the House knows nothing, should have been raised, which prompted the insertion of this particular section.
Emergency Powers (Continuance and Amendment) Bill, 1942—Committee Stage.
I think the Deputy is mistaken when he says that no explanation as to the doubts was given on the Second Reading. I think I pointed out, in general terms, that the difficulty was that when you have general powers and, afterwards, specific powers —particularly if, in the enumeration of these specific powers, there are certain limitations—these specific powers would be interpreted as covering the particular thing in question, and that, to that extent, if they were in any way restricted, the restrictions that would be implied in that particular section would be implied in the general powers given. For example, in paragraph (d) of Section 2 (2), of the Emergency Powers Act, 1939, you have the phrase "otherwise than in Irish currency". It might be suggested, for instance, that because you make that limitation there in regard to the specific matter mentioned in paragraph (d)—that is, "the acquisition by or on behalf of the State of any currency other than Irish currency"—Irish currency was excluded because you excluded it in the particular enumeration. The court might hold that this matter was under consideration definitely in paragraph (d), that you exclude Irish currency and, therefore, that you are excluding it altogether from the power of the Minister or of the Government. Now, that was not the intention. Very often, you have these excluding paragraphs because you are enumerating a particular kind, and you just want to say that you are dealing with that particular kind and not with something else. It is to remove doubts of that sort that this section is introduced. That is a simple example that I have given, but in general there is that possibility, and the idea is to provide that such a possible interpretation of Section 2 (2) would not lead to a diminution of the generality of Section 2 (1).
On behalf of Deputy McGilligan. I move amendment No. 1:—
After the word "commission" in line 18, page 3, to add the words "nor operate to add a liability or to increase a penalty for such act on a person beyond the liabilities and the penalty prescribed at the date of the commission".
The first three amendments in the name of Deputy McGilligan seek to provide that a penalty shall not have retrospective effect. Amendments 1, 4 and 10, possibly, have some points of difference, but that is not clear. Amendment No. 3, in the name of the Taoiseach, may be considered to meet the points raised in some or all of Deputy McGilligan's amendments.
The purpose of amendment No. 1 is to ensure that that which was not an infringement of the law on an anterior date, should not be made so by this retrospective clause. The purpose is to ensure that the same safeguard would be inserted, in respect of a penalty, which would flow from declaring something retrospectively. For example, if it were decided to make the purchase of cigarettes subject to a certain penalty—let us say, a licence or something of that sort—and that an amendment of the law was made by means of an Emergency Powers Order, retrospectively imposing a licence fee in excess of the amount that was in force on a particular date, we are ensuring that there would be a safeguard where a thing of that sort would occur.
Under the various emergency Orders and other legislation of the State a sum of something like £20,000 has been collected out of licence fees and other things of that sort. It is a considerable sum, and in view of the tendency in this Act to add noughts either to penalties or fines, some safeguard should be inserted which would ensure that there would be no danger of an extra liability being incurred by any citizen of the State by reason of the retrospective power that is taken in this section. It is quite clear that in certain cases, if Orders are to be amended, in the interests of the public they should be amended retrospectively, as in the case mentioned on Second Reading. The supposition there was that an alteration took place in, say, the value of coupons for clothing. Suppose it were necessary to tender 40 coupons to-day for a suit, and that the Order requiring that number was amended to-morrow, reducing it to 20, it would be unfair, I think, to the person who tendered the 40 coupons yesterday not to make a return to him of 20. There is a necessity for the amendment, I think, in a case like that. There does not appear to be anything in the section as it stands to prevent an increase in any liability which may be imposed by means of this retrospective provision. It is for the purpose of dealing with such cases that the amendment was put down.
We propose to meet the point which the Deputy has raised in amendment No. 3, which appears in my name. Section 8 is the penalty section, and I think it would be more appropriate to bring in the matter of penalties there. If the Deputy turns to 6A he will see that, as it will appear when the proposed insertion is made, it covers his point.
It only covers portion of it, the portion which deals with the offence. Let us assume for the moment that on the 5th day of January this year the licence for selling wheat was £5, and that on the 5th day of February an Order was issued amending that emergency Order by laying it down that the licence to be paid for dealing in wheat was £50, that, I suggest, is not covered. What is covered is merely the offence, but the other matter, the liability which is more or less to be interpreted from the amended section, is not covered. One thing deals with something which is punishable, but the other thing— the liability—is not, I think, covered, and it is that point that I am concerned about.
That is possibly true. I will look into the matter. I am advised that there is the possibility that the Deputy's point is covered otherwise. I must say that my view is the same as the Deputy's at the moment.
Very good.
On behalf of Deputy McGilligan I move amendment No. 2:—
To delete lines 22 to 27, page 3, and substitute therefor the following:—
"(a) by the deletion in sub-section (6) of the words ‘and every person who not being an Irish citizen or ordinarily resident within the State commits or is deemed to have committed within the State an offence under this section';
(b) by the insertion of the following two sub-sections after sub-section (6), that is to say:—
‘(6) (a) Every person who,'".
The section in the original Act dealing with offences, punishments and so on consisted of eight sub-sections. This Section 8 seeks to amend that section in a number of ways. It proposes to increase the penalties on summary conviction. The fine is not to exceed £500, and there is provision for otherwise increasing the penalties that may be imposed. The purpose of this amendment is to divide the liabilities into two classes, keeping the penalties which are to be imposed on Irish citizens to what was laid down in the Emergency Powers Act of 1939, as originally passed, but allowing for the change that is proposed in this amending Bill to apply to persons who are not Irish citizens, persons not ordinarily domiciled in this State. The amendment marks this distinction: that a person coming in from outside to create a disturbance is regarded as being one almost outside the law. As regards persons who are Irish citizens, our desire would be to give them at least this measure of confidence, that we would hesitate to believe that, as citizens of ours, they would engage in such activities. We desire to mark that distinction between citizens and non-citizens in our legislation. When the original measure was introduced quite a number of changes were made in it before it finally emerged in the form in which it has been the law for some time. So far as the new and additional penalties are concerned, they are reserved, by this amendment, for non-citizens, while the penalties provided in the original Act, which is in operation to-day, are reserved for Irish citizens.
Unfortunately, the penalties originally provided do not appear to have been sufficient to deal with our own citizens. This measure has not been brought in to aim at one class of offender only. It does not propose to distinguish between those who are ordinarily resident here and non-citizens. The difficulty, apparently, has been with our own citizens. There have been a number of prosecutions and the penalties provided do not appear to have been sufficiently severe to indicate the magnitude of the offences committed. This particular measure has not been designed to deal with a particular class of offender, namely, those who are not citizens. If cases of the kind which the Deputy seems to have in mind occur, the justice has the power to distinguish between them. The penalties which are being provided are sufficiently high to enable a considerable amount of discretion to be exercised by the justices, even after this measure has been passed. We assume that if there was a situation, such as that indicated by the Deputy, the justices would duly note it.
However, the unfortunate part of it is that it is offences committed in the main by our own citizens which have given rise to the need for this. I do not think, therefore, that we would gain anything by leaving it as it was in regard to our own citizens. With regard to possible offences committed by people who are non-citizens, at the moment we shall have to leave that to the discretion of the justices in regard to the distance they will go beyond the minimum. If, of course there was an indication that there was a definite campaign by non-citizens resident here, then we might have to move in the direction of further excess penalties, in the direction the Deputy indicates, but I have no information that there is anything like that actually occurring at present.
It will be conceded that the penalties proposed are very heavy. The total punishment which a person might incur in this case is so heavy as almost to suggest that it is punishment for high treason. We have probably two methods of dealing with offences, one, a fairly generous and easy form of punishment, and the other, which is very heavy, one which might almost cripple a person's finances and leave him and his family in penury for the rest of their lives. That type of penalty rankles in the mind of a man and in the minds of his family. It is a very nice question as to how far persons conjure up these things in their minds before committing an offence. It is thought by quite a number of people that a man's downfall is brought about, as we learn in the catechism, by little and little and, consequently, he may find it easy to arrive at a stage in which he commits some offence which the State considers merits very severe punishment.
The real question at issue here is whether the penalty proposed is sufficient to deter people from committing an offence. If the very heavy penalty proposed is sufficient to deter people, then it is possible that there would not be so much objection on the part of Deputies to passing this section. But, human nature being what it is, we fear that it will not. There are quite a number of ways in which a person can become liable to this very heavy fine and you will then have a situation in which you are probably making a bad citizen out of an indifferent one, or perhaps even out of a good one. To that extent it struck us that the penalty proposed was too heavy; that it was almost dangerous to have a penalty of that sort; and that unless the offences are so serious as to warrant very special penalties, we ought not to pass a section so penal in its effect.
There is another aspect of this question of making the penalty as heavy as it is. Persons are inclined to take a risk that they will not be convicted owing to the enormous liability that would be incurred and owing to the operation of the law being so slow it is liable to come into contempt. However, what is at issue here is whether the offences are so serious as to warrant these very heavy fines and other penalties that are involved. I think the House is entitled to some sort of proof with regard to that. Take one particular offence which I believe has grown up since the emergency, namely, smuggling. Whatever prompted the legislature to make that a major offence, it was done, and every person responsible for altering the legislation in this country has followed suit. But it has not stopped it. In fact, if one can believe the rumours in connection with it, it has almost added zest to the activities of those engaged in it. When the penalties are enormous they say: "If we can get through on three journeys, it is possible to bear the heaviest penalty that could be imposed and to make money." Therefore, you have the speculative gambling spirit entering into the matter. If the fines were smaller, it is possible that there would be less sympathy for the persons who would be caught and what is surrounded now by a certain amount of bravado would be regarded in quite a different manner. Again we are faced with the problem: has it stopped it? Will this stop the breaking of the law? I fear it will not. Unless we were satisfied that the offences are so serious as to warrant very heavy punishment, I think the House ought not to pass so penal a clause as this one.
Mr. Brennan
I am very much disturbed by the penalties outlined in this section. I have in mind particularly what the Taoiseach said on the Second Reading when he referred to offences under the tillage regulations and was endeavouring to justify, particularly, the terms of this section which sets out penalties of a very severe order indeed and also sets out minimum penalties. After all, on reflection, why should we set out minimum penalties of that kind? We, as a legislature, do not presume to be dictators. We leave the matter to the judgment of the person who hears the case and who is justice appointed for the purpose. There are circumstances which we here cannot provide for and which we ought not to try to deal with in a general way. All people are not possessed of the same amount of intelligence and in very many cases there are extenuating circumstances with regard to these tillage offences. I know persons who have been prosecuted under the tillage regulations and in some cases very small fines have been inflicted. Perhaps the Taoiseach would not think they were commensurate with the gravity of the offence owing to the existence of the emergency. But it is quite possible, if the Taoiseach knew the weak mentality of some of these people and the conditions under which they have to live, he would feel very differently about it. If we provide a minimum penalty of £100 we will probably inflict very grave and very serious injustice on some people. We are not probably the best persons to judge in the matter, although the Taoiseach and the House may feel that we are the best persons to decide that an emergency exists. We certainly are not the best persons to judge on the merits of a particular case as it is presented in court.
It is quite possible that if the House indicated that it was not satisfied that some of the penalties imposed were commensurate with the gravity of the cases, there might be an improvement, if I might use that word, in that respect with regard to the penalties imposed. But when we set down, as is now proposed, that the penalties shall not be less in some cases than £100, or not more than £500, we are doing something the reactions of which may be very serious for us all. I feel that, in the majority of cases, if we insist on enforcing a penalty of that nature, we will be doing a very grave, a very serious, injustice to people. I think it is quite sufficient for us to make it known that there is not general satisfaction at the penalties that are being imposed in some cases; but that we should fix a minimum penalty and insist on not less than a specified amount of £100 or not more than £500 or a term of imprisonment of not less than six months, without knowing the circumstances of the various cases to which those penalties are to apply, would be inflicting a very serious injustice upon some people. It is quite possible that certain individuals would be getting off lightly—I am not disputing that—but even one instance of a very grave injustice to people who did not deserve it is something we ought not to be responsible for, if we can avoid it. I am entirely with the Taoiseach that, so far as tillage prosecutions are concerned, they ought to be dealt with according to their gravity, but I am opposed to a fixed minimum penalty. That is something we ought not to do, and I ask the Taoiseach to withdraw that particular portion of the Bill.
I am not quite sure, from what the Deputy has said, that he has carefully read this Bill. We are not here laying down definite penalties of not less than £100. We are merely envisaging a range of offences for which £100 might, in some instances, be a relatively small penalty. We are saying that, by order, certain things may be done, and we are defining the limits of the Order, the extent to which it can go. We are saying that a minimum penalty up to £100 may be prescribed in particular cases. I do not see that we are laying down a penalty of £100. We are merely indicating a range of offences in respect of which an Order may set out penalties. There is nothing in this measure which says that there shall be a minimum penalty of £100 for any offence.
Mr. Brennan
It sets out a specified amount, not exceeding £100.
Is the Deputy referring to 6A (a)?
Mr. Brennan
Yes.
According to that "the Government may, whenever and so often as they think fit, by order under Section 2 of this Act, do one of the following things, that is to say:—(a) Declare that the punishment which may be awarded, in respect of a specified offence under this section, on summary conviction thereof shall be a fine of not less than a specified amount (not exceeding one hundred pounds)...."
Mr. Brennan
It may reach £100.
It may. You must give a certain latitude to the Minister and the Government in making an Order, in view of the variety of cases to be covered. I agree with a good deal of what has been said with regard to penalties in general. It is true that people will take risks. What we have to do is to make the penalty sufficiently great that, if people are prepared to gamble, it will not be the gain side that they will have to look upon, but the other side. There may be big gains made by doing certain things, but they will have to consider the other side as well. What we have to do is to make them realise that the loss might be very much more of a certainty than the gain. If there was a certainty of punishment, it would have a deterrent effect. It is not possible to ensure that they will be caught. What you have to do is to make the risk sufficiently high.
Mr. Brennan
You are definitely endeavouring to get into the net the people inclined to gamble. I am not concerned with those people. I am concerned with people who very definitely cannot get on with their work. I know of a family who got into serious trouble over debts, and they could not get machinery or other things. They could not be described as gamblers. If there was a minimum penalty, and if those people had to bear it, it would be a very definite hardship and a great injustice. The district justice or some other judge should be the person to decide.
The Deputy has in mind one type of offence.
Mr. Brennan
I agree.
Unfortunately, we have a whole variety of offences to deal with. I have already read out a list of the different types of offences. You will have those who will think of private gain rather than the emergency and the community need. They will try to make money by using their lands in a way very different from the way in which the community requires them to be used at the moment. I mentioned the last day that it is the practice of the Department of Agriculture, before they prosecute, to satisfy themselves that there were no circumstances in individual cases which really mitigated the offence of non-compliance with the Order. That is the administrative side.
Mr. Brennan
I do not think it is the practice.
I am informed that has been their practice.
Mr. Brennan
That is not my experience.
I can only give the information which has reached me. I have been informed by the Minister and his officers that in regard to the enforcement of the Order there has been a practice of not prosecuting until they have satisfied themselves, prima facie anyhow, that this was a case where the tillage Order could have been applied and was not.
Mr. Brennan
My experience is that they compelled everybody, no matter what the conditions were—and I am entirely with them.
There is, as the Deputy probably is aware, the possibility of an appeal after the courts are finished with a case. There is the possibility of an appeal to the Minister for Justice, who is the Minister in charge of all these matters, for a mitigation of the fine.
How does he handle that?
I said to the House when I was dealing with that on the last occasion that it is quite true that the Minister has not all the material for forming a judgment that the justice would have. This form of legislation is distasteful to the Government and distasteful to everybody, if we could avoid it, but the emergency is such that we feel we cannot do without it. I have a whole list of cases where the penalties were ridiculous in view of the offence that seemed to be committed, that is, prima facie. Again, I am not the justice. But, when you get a large number of these cases, the general feeling is that the justices do not appreciate the gravity of the situation. One of the difficulties we are in is that we have followed the British system in regard to our system of law generally and in regard to our courts, and so on, but there are parts that we have not adopted.
One of the things, for instance, that we have not adopted is the practice of the British Home Office of sending around circulars, indicating certain general principles, not dealing with particular individuals, but indicating in regard to a particular type of offence and a particular piece of legislation what is the matter involved and what are the consequences from the community point of view. We do not do that. I would imagine that if we had that system, one of the first things we would have done when the Compulsory Tillage Order was made would be to issue a circular giving a general indication of the gravity of the crisis and the importance of growing sufficient food for the community.
It would be pointed out how grave an offence it was to feed wheat to animals and the danger to the community in doing that, that it was anti-social in an emergency like this to do it and that, consequently, the offence should be regarded by the justices as a very serious one. We did not do that and the result is that you have a great lack of uniformity between the attitude taken up by the various justices in different parts of the country. One man who appreciates the situation is inclined to be severe, may even go to the point of being more severe than the Minister or the Department would be if acting as judge. In another case you have people who treat it lightly. This legislation is brought in by reason of the fact that there was an accumulation of cases in which the justices seemed to regard offences in regard to this matter as if they were really trifling infringements of law, almost technical matters. Cases where people were let out under the Probation of Offenders Act, and so on, seemed to show want of appreciation on the part of the justice of the gravity of the situation.
There was no other course left. We postponed it; we hesitated about it; we put it back more than once, until finally the position was reached in which the Ministers said that they did not think that they would be able to get the regulations which they felt necessary to make the Orders effective unless we had this. We are coming to the House in the very same spirit. To meet the Deputy's point of extremely difficult cases, there is the remedy of an appeal for mitigation to the Minister and that is the only way in which we can cover these exceptional, hard cases that may occur. We agree that they may occur and, consequently, that some sort of machinery should be provided to deal with them. That is the only machinery we can see. However, the penalties here are not fixed in this Bill but there is power undoubtedly left to fix these. If you make the limits lower I am afraid you will put it out of the power of the Minister to make it sufficiently severe in a case where we probably would agree that the offence was of the type that the penalty should be as great as the Minister would make it. I am afraid, in view of the circumstances, that I cannot go any distance to meet the views for mitigation or lightening of these penalties. I am afraid if we were to make them less, we would put it out of the Minister's power, even in a case where the House would be prepared to grant that power to the Minister, to take the necessary action.
Mr. Brennan
May I put this point to the Taoiseach: he may be misjudging some of the justices and their judgments? I remember one case and I should like to put it to the Taoiseach to see what he would say to the decision in this case. A man was prosecuted for non-compliance with the tillage regulations. He is a small farmer. He was ill last year and he recovered. He had not very much money. In the ordinary way he would be subject to a fine of between £10 and £20. The district justice asked this man what he was prepared to do this year and the man said he was prepared to till his quota this year plus what he was short last year provided he was not fined anything, because if he were fined he would not be able to buy the seed.
That is a fair offer.
Mr. Brennan
The district justice imposed a very small nominal fine of £1 instead of a fine of £10 or £15 or £20. That man tilled three or four acres extra because of that and because he had the price of the seed. Was that judgment good or bad for the community? I put that to the Taoiseach. The judgment of that particular district justice might be taken up in this House and paraded as a most idiotic, ill-considered judgment, whereas I think it was a good judgment.
Deputy Brennan has taken the regulation fence before we pass the preliminary fence in relation to quite a number of these. We will come to that in its own time, but for the Deputy's information, I may tell him the Civil Service would not accept that explanation and anybody who knows it realises that what I am saying is quite true. There are various offences set out in this particular piece of legislation. We propose in connection with them to increase the fine to a fine not exceeding £500. We propose later, on conviction on indictment, to make the person liable to a fine of £5,000 and at the discretion of the court to ten years penal servitude. That is a pretty stiff proposition. A man would require to be guilty of a very serious offence in that case. Let us take an example. We will suppose that an Army officer took an aeroplane out of this country to one of the belligerents. Is that a type of case that would be regarded as a major offence under this legislation? Presumably, that man would be dealt with by a courtmartial and presumably also those who were responsible for courtmartial would have in mind the gravity of the effence and would fix the penalty to meet the gravity of the offence. I wonder would they fix a penalty of £5,000 and ten years penal servitude? I have the greatest possible doubt that they would do that. In fact, I would go so far as to say they would not do it. Very good. What is the offence under this Bill which renders a person liable to a fine of £5,000 and ten years penal servitude? We are laying down the law here for the courts. I am not going to go into it now, but we are in essence taking away from the courts a discretion which they have so wisely exercised down through the ages. The judges of the courts have earned the confidence and respect of the people because of their knowledge of humanity and their general acceptance of jurisprudence and because of the fact that a person who goes before them knows he is not there to be destroyed.
What I am afraid of is that this legislation means persecution and destruction and I do not think that legislation such as that will ever earn respect or consideration from the people. Amongst the series of offences for which I presume a person would be liable to heavy penalties is that of aiding, abetting or conspiring with another person to do certain things. Anybody who knows this country knows that sometimes quite a number of innocent people are often dragged unwittingly into cases of this sort and they may become liable, under this Bill, to a heavy penalty. For that reason I say that we should mark a distinction in this legislation in the gravity of these cases. I am prepared to give the Government these powers if they want to use them against persons who are not citizens of ours. If outsiders come in here and take these risks, if they interfere with our laws during a time of emergency, any power the Government desires to deal with them I would willingly concede to them, but I hope, as regards our own citizens, we shall temper justice with mercy. I should very much prefer to see minor infringements of the law go unpunished than that even a very limited number of the people would be convicted by the courts, in circumstances which would make these convictions rankle in their minds and the minds of their families for long afterward, or that they should feel that they had been unjustly dealt with by the authorities. As I said before, one peculiarity of this State and the neighbouring State is that the authorities regard any offence against the State as a mortal sin. If a man robs me of £2—it is about as much as ever I have in my pocket—that is regarded as a venial offence. But let him take 5/- from the State and he will probably get 12 or 18 months in jail. I am very much less able to sustain a loss of £2 than the State is of 5/-. There is, however, that sort of peculiarity, that there is a tendency to deify the State by this type of legislation. I think that is unwise and it is not likely to instil in our people that respect and veneration for our laws which it should be our duty to foster in all our legislation.
The Taoiseach made a very strange case in support of the fixing of a minimum penalty, when he stated that it was necessary to fix such penalties because we failed to follow the example of Great Britain in circularising justices in regard to the gravity of these offences. The question naturally arises why should we have failed to circularise the justices in regard to these offences? If the Taoiseach has to choose between two courses, surely the more humane and the more sensible would be to circularise the justices in regard to the seriousness of these offences rather than to tie their hands and to deprive them of any discretion. I am only concerned with the cases in regard to compulsory tillage. There will arise cases of aged people, perhaps of uneducated people, who may commit an offence, who are definitely guilty of a violation of the law and who could not escape being prosecuted on the plea the Taoiseach has mentioned that their violation of the law was justified. At the same time, the circumstances would be such that no justice would consider it desirable to impose upon them the maximum or minimum penalties which are prescribed here. Justices are only human beings like everybody else, and if they are called upon to convict, if they feel that a conviction means putting an unfortunate person out of his home or putting his children out on the road, they will be inclined to err in the other direction and acquit the person prosecuted. That is a consideration which should weigh with the Taoiseach. I think that the plan which he has mentioned as being followed by the British is a very wise one and should be followed here. In so far as maximum penalties are concerned, if they are not sufficient they should be increased to whatever extent is necessary in view of the nature of the offences.
I think in these cases the Government should be very careful before providing for minimum penalties. When the Oireachtas passes laws to impress upon everybody the seriousness of the situation, that should be done by providing heavy maximum penalties but the moment you decide to prescribe minimum penalties, all sorts of questions will arise. You will have cases coming before district justices in which the minimum penalty that can be imposed will be so serious that it will mean that a poor farmer may be put out of production. A case has arisen in my county at the moment in which a farmer, who owned a fair farm but who was ill for a considerable time and who had not much money, was called upon to till about 17 acres of land. He went to his bank, or to the bank in which he thought he would get some money, but he could not get any.
Mr. Brennan
Where he keeps his overdraft.
Yes. He could not get any money from that bank. He then applied to the Agricultural Credit Corporation for a loan but, because he owed some money to the bank he would not get a loan from the corporation. He then applied to the Minister for Agriculture to get a loan from the county council but he found that before he could get that, he would have to get two solvent securities who, of course, would be called upon to pay if he defaulted. While there may be many friendships in the country, it is very hard sometimes to get a security who must be a ratepayer of a certain valuation before he will be accepted by either the county council or the committee of agriculture. In the end the poor man himself was obliged to take his spade in his hand. He went out, himself and his family of six daughters—he had no sons—and they turned with their spades about four and a half acres.
And he could not get any credit from the banks!
That man worked from last November and he is working even yet, turning with his spade and doing the best that in him lay, but now he is summoned for failing to comply with the tillage regulations. That is an offence under this Act. Surely to goodness, when that man comes in and discloses his circumstances to the district justice, the district, justice should have discretionary power to say whether he honestly tried to comply with the law? He has about five acres tilled, but that is immaterial. The facts that can be established before the court are that the man made the best effort that within him lay to comply with the law. Of course, one might say that that farmer should have set that land, but, mind you, farmers in the country do not very much like people coming in on their farms. There are a thousand and one reasons why they do not want them. He may be able to get a lot of people to take the land if he opened the gate, but for his own reasons he felt it was better that he should hold his own fort and do the best he could. I think when the facts come before the district justice he should be able to say: "Very well; what will you do next year? Can you do so much better?" In a case like this—mind you there are many similar cases throughout the country, and I am just taking this one as a sample—the district justice should be allowed to say: "Very well; I will fine you 10/- or even 2/6 on condition that you do so much tillage next year." That poor unfortunate man does not know the first thing about petitioning the Minister. Perhaps he reads the Longford Leader or the Roscommon Herald once in the month if somebody else tells him there is something of importance in it. I think that the minimum fine should be taken out, and the maximum put there. What is the Taoiseach's point in having the minimum here? The district justices have not realised the seriousness of the situation? There is only one way for him to tell them that, and that is by putting in the maximum and impressing on them how serious it is.
The maximum is there.
Well, double it, or treble it. There is a very nice way out of it. If there is some set of facts brought before the Government which show that the district justice has so far forgotten his position and so far failed in his duty, is there not authority vested in the Government here to impugn that particular district justice? Can you not say that you propose to relieve him of so-and-so on the following grounds?
If you wish, I will talk about that later.
Yow wish to impress district justices with the seriousness of the situation, so you are going to tie their hands to such an extent that they cannot have the smallest little grain of mercy. If you put upon me the obligation that there is only one penalty for an offence, death, what are you doing to me? I cannot exercise mercy. I can only find the person not guilty. If I want to save that man's life, there is only one thing I can do, and that is find him not guilty, because I know if I find him guilty he will be shot in the morning. You are doing the same thing to the judiciary of this State. I think it is a rotten situation. I appeal to the Taoiseach not to do it. Put the maximum in there. The Minister for Justice can send for the district justices of the country——
He cannot. That is resented.
You have an Emergency Powers Act under which you can do anything. Send for them, and have a talk with them. Can you not call them into conference?
No.
If you cannot, then——
That is the position.
You control the Methodist Church under the same Act.
What Act?
The Emergency Powers Act.
I do not know what the Deputy is driving at. I do not understand.
He does not remember his misdeeds.
It you tie the district justice so that he has to impose this penalty, I think you will create a situation in which you will bring the law into disrepute, and in which there will be several people broken. It is like the economic war, in which certain farmers were smashed to the ropes. I know the Government regretted that, but because they had put themselves into a certain situation they could not do anything better about it. I think it would be much better to give the district justice at least the power which he has in the case of revenue offences, so that if he imposes a fine he can say that he recommends a reduction.
He can.
But it is not here.
It is not in the other place either, I am sure.
Will you look up your Revenue Act? You lay down exactly what the district justice fines in revenue cases. He finds that the facts have been proved; then, according to the Act, he imposes a fine of £100, reduced to so-and-so, with a further recommendation that it be reduced to so-and-so. The records show what the district justice has found. As this Bill stands, he cannot do anything like that at all. It is only when there is an appeal to the Minister that the thing is sent back to the district justice for his recommendations.
The district justice can take the initiative and make a recommendation.
If you have it this way, I think you are making a mistake, and I would advise you as strongly as I possibly can not to take that particular step.
I move amendment No. 3:—
In paragraph (a), line 34, page 3, to insert after the word a "force" the words "at the time the offence is committed".
The purpose of the amendment is that which I have already indicated.
I move amendment No. 4, standing in the name of Deputy McGilligan:
In line 1, page 4, after the word "may" to insert the words "not less than six months before a prosecution to which this sub-section relates and in any case before the commission of an offence to which this section relates.
This is the amendment which has been spoken to by Deputy MacEoin and Deputy Brennan already. By this amendment, it is hoped to effect two things; one, that the judgment of the Government may be made not in the heat and rancour of the moment, when they are filled with the importance of the case from the State's standpoint, and with resentment that the law has been broken; in other words, that they will amend the law or make changes in the law at a time when there is no heat and no feeling that the State has been outraged. The law will be laid down then in sober judgment, and will be fair to everybody. That is the second part of the amendment. The other part of the amendment is to ensure that the law will be at least six months' old prior to a prosecution under it. It is not unfair. It ought to be possible, with the experience that has been gained over the last three years, to settle those matters, so that first of all, the penalties will be there for everybody to see, and to realise what will be involved by breaking the law. In the second place, I want to ensure that, under no circumstances, will a penalty be increased after the offence has been committed. Let us assume that a man broke the law by using a motor car when he was not entitled to use it or by selling a suit for one coupon when he should have obtained 36. The offence having been committed, I want to secure that the penalty will not be increased after its commission. That is not unreasonable.
With regard to the six months' period, I am afraid Deputies cannot expect Departments, which have to deal with new events and new sets of circumstances arising under the emergency, to be able to anticipate six months ahead the type of Order which it may be necessary to make in the interests of the community. There is no question of deifying the State; it is a question of trying to safeguard the community. Departments cannot be expected to be able to make an Order with reference to some matter that may arise in six months and penalties cannot be arranged before the Order is made. With regard to the other point, as to the fixing of a penalty after the offence, I think that that is already covered by my own amendment.
I do not think so.
I am informed that it covers that point as well. It is intended that it should be covered. I shall look into the matter.
It is possible that one portion of it is covered by the words "at the time the offence is committed." Surely, six months is not an unreasonable period. There are people being regularly prosecuted under Acts of Edward III. Surely the penalty in respect of murder existed before even the great Queen Anne, who is looked upon as having died a very long time ago. Six months is a long time when we consider that we have three years' experience of infringements under this legislation. Directly an emergency of this sort was envisaged, those who used to be described as the "law officers of the Crown" immediately put their hands into a pigeon hole and took out an Act which, altered according to the changes that had taken place, would meet the situation. To say that you cannot anticipate six months before an offence is committed what the penalty should be is to say what is unreasonable.
The Deputy is not serious in that argument.
What is the law under which a person is charged with murder?
What we are talking about is the question of Orders which may have to be made, from time to time, by the Minister in relation to the present emergency. In dealing with offences of various kinds, Orders are made and penalties are prescribed. How can you anticipate six months ahead the Order you would make at a particular date?
Let us understand one another. "The Government may, whenever and so often as they think fit," change the penalties. The penalties are already there. What I want to secure is that the changes will not take place later than six months before the offence.
That is not what the amendment says.
"Not less than six months... and in any case before the commission of an offence." I want to secure that these changes must take place at least six months before the offence is committed. Suppose that Deputy Corry were Prime Minister and that Deputy Dillon committed an offence, I want to make sure that Deputy Corry will not be in a position to fix the penalty to meet Deputy Dillon's case. Surely, if an alteration is to be made in respect of a penalty, it should be made six months before the offence is committed. In 6a, it is stated that the Government may, whenever and so often as they think fit, declare that the punishment for an offence on summary conviction shall be fines of specified amounts.
Where is the word change in that section?
The Government may, by Order, change the penalty.
Six months before you make an Order, you are able to foresee all about it!
I do not want to have it alleged that, a person having been arrested and charged, the Government then specified the minimum, amount he could be fined.
That is secured already.
Where?
By the words "at the time the offence is committed".
That may meet one part of it. I want to make sure that these things will be, at least, six months in the refrigerator.
The Deputy will have to put down a different amendment.
The Government amendment did not appear until mine went in.
The Government amendment went in because Deputy McGilligan raised that point on Second Reading. It was intended to meet the point raised. His own amendment was intended to meet that and several other things.
These were drafted on the evening of the day of the Second Reading of this Bill.
Why should the Deputy make that foolish statement? He said that the amendment was put in: that was done because of the fact that Deputy McGilligan raised a number of points, which were considered reasonable and which we wanted to meet. The Deputy wanted to meet the same thing in his own amendment.
What is the objection to six months?
Because it cannot be foreseen. It is utter and arrant nonsense to say that it could. If you are making an Order, you cannot foresee six months ahead, and arrange the penalties. It means drafting an Order six months before you issue it.
Let us distinguish between making an Order and fixing the minimum penalty. This clause is one which enables the Government to fix the penalty and to change the penalty—that is, to put in a minimum penalty of £100, if they like, in respect of an offence. Take one case that we have been discussing here for a long time—the case of compulsory tillage. As the law stands, there were altogether some 540 persons alleged to be defaulters under the tillage Orders. I calculate that the exact proportion of that is three persons out of every 2,000 farmers in this country. This particular legislation will be law in a month's time—that is, in the month of August. I want to make sure that, in respect of next January or February, those people will not be liable to a fine of £100, because the Minister for Agriculture comes to the Government and, in a mad moment of political exaltation, tells them that, unless there is a fine of £100, he will not be able to keep control. I want to make sure of that. It is not unreasonable, having regard to the fact that only three persons are alleged to be defaulters out of every 2,000 farmers.
The Deputy, so far as I can see, is trying to force a door which is already open. The section reads:—
(i) in case the offence is one in respect of which any Order, made by virtue of the next following subsection...
that is, sub-section 6A,
is in force...
We have amended that to read:—
"is in force at the time the offence is committed."
If the Order is in force, the penalties in the Order are in force.
No, no.
The section says:—
Look at sub-section 6A.
That governs 6A. Otherwise, what is the meaning of the words "next sub-section"?
That is as regards the offence. I want to make sure that if the law is going to be changed, at least in respect of the penalty, six months' notice will be given prior to the commission of the offence.
But it cannot be fixed six months prior to the commission of the offence.
Of course it can.
I take it that an Order is made at any particular time because of a particular set of circumstances which require some regulation affecting the interests of the community. In the regulation a penalty is set out. What is the sense in saying that that penalty must be set out six months beforehand? You must begin somewhere, and you can only begin when the Order is made.
I will give the reason. I do not want a minimum fine of £100 in respect of an evasion of the tillage Order.
Mr. Brennan
This amendment of the Taoiseach does not at all clear up the point raised by the Leader of the Opposition. I take it that the Leader of the Opposition is seeking to amend the Bill, while the Taoiseach is reading his own amendment to show that the point is already met.
Yes.
Mr. Brennan
Supposing the Order came into force on 1st January. Supposing there was a change made on 1st January, and that a £100 fine was specified on that date. Then, supposing there was a commission of what is called an offence, on the 2nd January; then that person would be liable to a fine of £100. Is that not so?
Yes.
Mr. Brennan
What the leader of the Opposition is trying to get over is that the person who was liable to a fine of £100 on 2nd January should have six months' notification that such a fine would be imposed for such an offence.
In other words, that all the Orders made should not have force until six months after they were made?
Mr. Brennan
No.
That is what the Deputy proposes.
You can bring an Order into force to-day, but I want to ensure you are not going to increase the penalty—fixing a minimum, maybe, of £100—unless there is six months' notice that that will be done.
Surely you cannot give six months' notice if the Order is being made for a specific purpose. It is made because it is urgent and because acts in contravention of it can be offences the very moment it is made. Surely the penalty must be put into the Order and will have to be effective when the Order becomes effective. If the Deputy wants to make some exception to that, he will have to bring in an amendment on those lines. The amendment he is introducing now is covered by this proposed amendment. It is completely impracticable to see six months ahead. As far as the penalty is concerned, the amendment brought in states that the penalty must be stated at the time the offence is committed—in other words that you cannot go back, retrospectively, and change the particular penalty for an offence, after the offence has been committed.
Let us read the amendment, in conjunction with the sub-section:—
(i) in case the offence is one in respect of which any Order, made by virtue of the next following sub-section, is in force at the time the offence is committed, the penalties provided by such Order....
A man may not yet have committed an offence. It may be that he will be charged next February, March or April with having committed an offence. I want to make sure that an alteration will not be made in the penalty. We are giving the Government extraordinary powers in this matter. It is not usual to allow any Executive to regulate minimum penalties in respect of an offence. It is the exception rather than the rule. It is a concession that this House is giving to the Government. We are asking, in connection with that exception—and it is a remarkable exception which would not be given in circumstances other than those of an emergency——
It would not be asked, I take it.
I am not so sure, having regard to the trend in places on the Continent. We are asking that six months' notice should be given of the penalty. That is not unreasonable.
I think it is most unreasonable. I cannot understand it at all. As far as I can see, we are either arguing completely at cross-purposes or something else is happening. I cannot see what the Deputy is hoping to obtain by this. He is asking for six months and, to my mind, he is asking a complete impossibility. A number of Orders are made—not all of them tillage Orders—in which the offence begins to be committed at once and, therefore, the penalty must be stated in the Order, and must apply immediately. You cannot anticipate six months ahead. If you wanted a regulation in relation to a particular type of offence, it would have to be limited to that.
This reminds me of an argument we had some time ago about two things, and it was settled finally by the word "not", which happened to have been omitted from the draft. Neither of us was able to understand the other. I am afraid that there is complete want of understanding from the point of view of reading this. On the previous occasion, I was reading a document I held, and the Deputy was reading one which he held —apparently another draft. In this case I am anxious to do everything possible. I assure the House I do not want this type of legislation, if it is possible to do without it.
The Deputy has asked me why we do not circularise district justices as was done in Britain. I have been told of a case where it was done, and the justices resented it. They said it was an impertinence, so to speak, to do anything of the kind. It was an attempt to get some uniformity and proper understanding. There will be another occasion on which we shall have to go into this whole question, but as I read this amendment, one point in it is that there should not be penalties different from the penalties in existence when the act was committed. I take it that that is covered. If it is not, I promise the Deputy I shall look into it and assure myself, by my own reading of it, and by any expert advice I can get, that the position is as I have said I believe it to be. With regard to the Deputy's suggestion about six months' notice, I think he is asking something which is quite impracticable, and, with all the will in the world to endeavour to meet anything I can meet, I am not able to meet his point, because to attempt to do so would, I think, be contrary to common sense.
The first part of this section deals with increasing the maximum penalty which may be incurred for breaches of the Emergency Powers Act. We go on then to 6a, which says:—
"In case the offence is one in respect of which any Order, made by virtue of the next following sub-section is in force, the penalties provided by such Order..."
We can bring out an emergency Order to-morrow stating that a person who contravenes an emergency Order is liable to particular penalty, but, when we come to 6a, I say that the Government can exercise that power only six months before an offence under it— under that power and not under the other power—is committed. There is a change there in the penalty. It is a different thing from bringing in an Order and bringing in an Order with a penalty. This fixes the minimum penalty which, in essence, is £100. I am asking that in respect of that change—a very big and very important change—six months' notice of the penalty only shall be given. It is a penalty in respect of which a district justice has no discretion. A man is charged for not having tilled ten acres. He has tilled nine and a half acres and he must be fined £100. I say that that man must get six months' notice that he will be liable to a minimum fine of £100. Is that unreasonable?
I am prepared to accept everything the Minister for Agriculture and the Minister for Supplies say about the importance of this, but I am entitled to look at what has happened over the last 12 months. I find that three farmers out of 2,000 have been charged with breaches of the tillage Order. No discretion whatever with regard to extenuating circumstances or reasons of any sort or kind will be permitted to a district justice in dealing with a case of this type. There is a minimum penalty likely to be imposed in this case—a penalty of £100—and I am asking for six months' notice of the liability incurred by a breach of the tillage Order.
If the Deputy has something like that in mind, why did he not put it down in some place where it would have reference to tillage? The Deputy is evidently aiming at something like this, that in the case of tillage Orders, just as prices are announced in advance, where possible —there are a number of cases where it is quite impossible—some time in November, after estimating what the position is likely to be, a quota should be fixed and anybody who does not meet that quota will be liable to a certain penalty, and that penalty will remain unchanged. If the Deputy is aiming at that, I am quite willing to take it up with the Minister for Agriculture and to see how far it can be done.
That is all I wanted from the very beginning. I mentioned it often enough.
While the Deputy gives that as an example, his amendment is altogether wider in scope. There is a certain time for sowing and so on, aud I suppose it would be practicable to give notice in September or October and to indicate a particular quota, although I do not know whether there would be sufficient stock taken of the amount of food available to enable the Minister for Agriculture to do it as early as that. On a few occasions, we have had to change the tillage percentage. We fixed it at one time in the late autumn and had to change it in the spring because we found that the reserves were less than we expected. With regard to meeting the Deputy on the tillage point, it is a different matter, because it is of peculiar character, but I still protest that his amendment does not set that out. He is trying to get as to put into an Act of Parliament something which is quite impracticable, because, while it may be possible to anticipate in regard to tillage, it is not possible to anticipate in the case of Orders in general, and this amendment would apply to Orders in general.
I am quite prepared to ask the Minister for Agriculture if we could get some amendment to cover the point, so that he could give notice in that sense. One of the troubles is that he has to fix a date so that, if he has to enter on lands, it will still be possible to till, because the purpose of this section is not to punish anybody. All these penalties would be avoided if people tried to work in accordance with the spirit in which they are prescribed, and tried to secure the safety of the community, but in those cases in which it is not being done, the Minister must be allowed a margin of time, so that if he thinks the community's need of food is so great that he cannot allow certain lands which ought to be tilled to remain untilled, he may carry out that tilling. Deputy MacEoin spoke of hard cases, but I say that these hard cases will have to be met by the procedure I have indicated, that is, by way of appeal for mitigation to the Minister, but if everybody who finds it difficult, and in many cases it is difficult for farmers, to meet our tillage requirements takes that line, we shall not have for the community the bread required, and we ought to approach this whole matter from that point of view. It is not a deification of the State but ordinary commonsense to try to get every member of the community to realise the seriousness of the situation and the necessity for everybody to do his part, and the farmers will have to do it. In the case of other offences, other things have to be done. Certain prices are fixed, and so on, and those prices have to be kept to, so as to safeguard the community from being unfairly treated. In regard to the particular question of tillage, however, it does seem that in a case of that kind, where an Order was made, say, some time in the autumn which would cover the whole tillage requirements, you could not say that a particular farmer had not fulfilled these requirements up to some time in spring. I think there is some date fixed—February is the month fixed at present, I think—as the date on which the Minister, if he is not satisfied, may enter upon the lands. That matter, as I say, will require a little bit of careful examination, and I promise to give it.
I am conceding the point in regard to tillage, but why not consider this whole matter in general? The only thing I am concerned with here is the change in the penalty. All I am asking is that that would be considered, and I am only putting it forward from the point of view of ensuring respect for the law. For instance, if a person should come into court and be convicted there on a changed penalty—that penalty not having been in existence at the time of his offence—he would be entitled to say: "That has been changed only in the last six weeks."
My information is that so far as the question of the penalty fixed before the offence is concerned, it is covered.
I agree that it is covered; but why, then, should there not be at least some longer time than merely that date? I do not want to bind it down to six months. We only put down six months in order to draw attention to it. I think that in the case of tillage; six months' notice ought to be given because people must make their dispositions, arrangements, and so on, and it might be that it would take the whole of that period for a man to get what he would require in the way of seeds, manures, and so forth. I do say that the date before the offence was committed was too close. I would not bind myself to six months, but I certainly say that it should be at least three or four months.
The unfortunate thing is that the amendment, as far as I can see, is not phrased in such a way as would meet the points that the Deputy, clearly, has in mind. I take it that he wants that if an Order providing a penalty has been in existence for a certain time—say, that there was a certain penalty laid down in an Order for exceeding the price in selling tea— and that it is deemed desirable to change that Order—it is the word "change" there——
I am not considering the Order. It is the penalty that I am considering.
Yes, but the change of the penalty in the Order.
Yes.
But each change of penalty would mean a new Order. I take it, there are Orders in which there would be penalties which it would be possible to change without going into further detail, but there would be other cases where that would not be possible. However, I shall go into the point with a view to seeing whether we cannot get some phrasing, that if there is a change there will be a certain interval before the change takes place: that is, when a new Order changing a penalty is made, the new Order will indicate that the penalty will come into effect after a certain date. I can see, at the moment, that just as in the case of other evasions, some people might take advantage of that interval to do things which they would not do at all after the interval has passed. However, I shall have a word with the Minister. I take it that in this case it is the Minister for Supplies who will be most affected and I will take the matter up with him in order to see whether the cases we envisage would permit of that.
The only case I am interested in is one in which a minimum penalty is fixed. You can change the maximum any way you please.
That is, where there is a definite minimum?
Yes. That is only where I am interested—a definite minimum; in other words, where there is no discretion left in the district justice.
Well, we have two cases of that sort: first of all, where there is no discretion left and you want to change, and again where there is a new Order and you want to prescribe another minimum. The other is this—and I think it would be more difficult to get agreement on it, because, apparently, it is regarded as urgent to have this thing properly understood—that there would be new Orders made. It may be possible— again, it is all "maybe" because I have not examined these things in detail——
The two points of discretion and a minimum penalty are the only two points I am interested in.
I see what the Deputy is interested in, but his amendment does not cover these points in the terms in which it is phrased, as far as I can see. I shall examine it to see, when there is a change, whether an interval would have to elapse before that change becomes effective.
Amendments Nos. 5 to 9 deal with the proposal to reduce the minimum penalties. The amendments might be discussed together, but separate decisions will be given if desired. Amendments Nos. 6 and 9, obviously, run together.
On behalf of Deputy McGilligan, I move amendment No. 5:—
In line 8, page 4, to delete the words "one hundred" and substitute the words "twenty-five".
I have said practically all that I have to say in connection with these matters. I am against this proposition of immense fines. I do not know that they ever had the desired effect in this country, and by the desired effect I mean accepting the law, limiting the number of breaches of the law, getting respect for the law, and, generally, having order in the State. Where a person is liable to a very big penalty— and a penalty of £500 is big, no matter on whom it is imposed—and where the person concerned has had full advertence to the law, nobody has any great consideration for the person in that case. There is the second case, however, in which a person had no knowledge whatever of the danger that the was running and of the penalty under the law which he was incurring. Then there is the third case, in which there is indifference. The sum and substance of the whole thing amounts to this: Is the law that we are passing now likely to be generously accepted, or is it likely that there will be an attempt at general evasion? Is it likely that we will effect the purpose that we have in mind, of getting the law respected, by leaving in those impositions? Now, this is one of the cases in which the Government, "whenever and as often as they think fit, by Order declare any of the following things," and so on. That is to say, they made it clear that the punishment to be awarded may be a fine of £500, together with, in the case of a continuing offence, a further fine, not exceeding £10, for every day on which the offence is committed. I have a natural objection to this continuing fine business. It savours more of persecution than of prosecution, and I do not know that it is wise.
I said on the previous amendments practically all that I have to say. It would be highly desirable that we should get general acceptance of the law if it is passed. In a country with the history of this country, even for the last 20 years, if not for any period prior to that, there has not been, if one might say so, competition between the different political Parties in the State to show their desire to get the law respected. Now, there is general agreement upon this measure—not as regards its administration but as regards the necessity for having a code of this sort—and I think it was given a fairly generous measure of support from all parts of the House. We might conclude from that that an effort ought to be made to get the same measure of generosity extended towards any amendments of the law that may be involved. I disagree absolutely with Section 8. I dislike it because it is penal in every respect. It gives too much power to the Government. In my view a Government ought not, even in a time of emergency, seek the power to increase or vary penalties, and particularly the power to impose minimum penalties. I think that the case that has been made for this amendment of the law is not a strong one.
Take, for example, the tillage phase of the emergency Orders. The breaches that occurred have, to my mind, been negligible. Let us consider what was involved there. From 1927 to 1932 we had a period of political agitation of one sort or another in the country, one political Party in the State telling the farmers that there was no national liability on them in respect to the payment of the land annuities. We had then the economic war, during which the whole economy of the agricultural population was upset. Now, in a period of emergency, we tell the farmers that they must till 25 per cent. of their arable land. Let us see how they, responded to that demand. We find that only three out of 2,000 were liable to prosecution. Surely that represented a very generous acceptance, on the part of the farmers, of their responsibilities. Our answer to them is to bring in a law which gives power to impose penal liabilities on them: penalties of £500 and a continuing fine of £10 a day. I do not think it is advisable to hold such very heavy penalties over them, having regard to the very limited number of offenders that there have been.. On balance, I think that the amount of arable land tilled was higher than the 25 per cent. laid down in the Minister's Order. If there had been less, there might be a case for the giving of those powers. Suppose, for instance, there had been a conspiracy amongst a section of our people to defeat the law, there might be a case for some of those penalties. Generally, I dislike penalties of the size outlined here. Apart from an exceptional case in a particular county, I am of the opinion that any person engaged in agriculture who becomes liable to one of these penalties will be a broken man. If those penalties are imposed in his case he will hardly survive them. I do not think that we ought to pass a law which would create a situation of that sort for those engaged in agriculture. I think that some reconsideration ought to be given to those penalties in the light of all that has happened and of the knowledge that we have. There may be extenuating circumstances in particular cases. If these cannot be specified, we do not want to have them paraded so that certain people might say: "If we make a case we may get off." Allowing for the special circumstances to which I have referred, going back over the last 20 years, I think that the response made in regard to tillage has been very good, and that it might be well for us if we were to take a nought each off every one of those penalties.
The object of the amendments is to limit the enforcement of the minimum penalties set out in the Bill. Personally, I am opposed to the principle of minimum penalties. In these amendments an attempt is being made to mitigate what I would call an evil. Most of the discussion has centred round the penalties proposed to be imposed on farmers for non-compliance with tillage Orders. I am not quite sure that the object of the Bill generally is not directed against them I hope I am wrong in that, because I believe that, taking farmers generally, they are the most law-abiding section in the State. The figures quoted by Deputy Cosgrave prove that, since only three farmers out of 2,000 were prosecuted for failure to obey the regulations. I think the figure given by the Minister for Agriculture was one in 600 or 700. Either figure represents a very small percentage of the total. Could the same be said of any other section of the community: that only three out of 2,000 failed to obey some particular law? I am certain that minimum penalties are not necessary in regard to farmers. The figures quoted prove that, speaking generally, they discharged their duty under the tillage Orders very faithfully.
The number of delinquents was small. It may be that a good many of them were women who found it almost impossible to comply with the Orders. The fact that the district justices took that view proves my case, I think. Our district justices are not unreliable administrators of the law. They are an excellent body of men, and I believe are as anxious as any Minister that the law should be upheld. If, in the discharge of their duty, they find that there are extenuating circumstances in a particular case they ought be left a discretion and not forced to inflict penalties which they believe are not just. So far as the farmers are concerned, and I am speaking here principally for the members of the farming community, I resent the fact that they are being treated as Public Enemy No. 1 in the matter of the breaking of regulations. I do not believe that of them, nor does anybody else. In regard to these tillage Orders, if a farmer fails to comply with them his failure is almost certain to be detected. There is no chance of escape for him, because it will be obvious to everybody that he is not complying with the law. But, in regard to other sections of the community, they may break the law and still conceal the fact that they have done so. They can do that far more easily than the farmer can in regard to his tillage. Other classes in the community can not only break the law but can continue to break it without being detected.
To get away from the farmers for a moment, and to come to the ordinary, commercial people, the Taoiseach last week read out a list of people who had been convicted for breaches of Orders in order to justify imposing minimum penalties. I noticed that the great majority of the cases he quoted were cases where there was a very small breach of Orders; a case of a man selling tea at 3/8 per lb. instead of 3/4, or a man selling tea at 4/4 per lb. instead of 4/- when the price had been raised. Only in a very exceptional case was there a very severe breach of the regulations. Most of the cases he quoted were merely infinitesimal breaches of Orders. Out of the whole list there were not more than two or three cases of grave breaches of Orders. If we interfere with the discretion of the district justices in these cases, then we are administering the law in a harsher manner than I believe it is administered in any other country.
I have no doubt that there have been more serious breaches of the Orders than the Taoiseach read out. I am convinced that the infringements of the Order with regard to tea are not confined to charging 4d. or 6d. or even 1/- over the fixed price. But the majority of the cases which the Taoiseach quoted only referred to small breaches of Orders. The real offenders have not been caught and never will be caught, and providing for a minimum penalty will not catch them because they are too clever. The people who will be punished by these minimum penalties will be mostly those of whom I spoke, people who commit small infringements of the law and do not take any great trouble to conceal them. But you will not catch the real malefactors by this process more than by any other. They will still go on diddling the Minister and everybody else and will never come before a district justice. In cases which come before a district justice, I think the justice ought to have the discretion of deciding whether there were extenuating circumstances and of imposing a fine that will have some relation to the offence committed.
I, certainly, am opposed to the principle of minimum penalties in cases of breaches of the tillage operations. As I say, the offence is so obvious that it cannot go undetected, and the breaches of the regulations were so few that they only ranged from one in 600 to one in 2,000. There were evidently some reasons why that small number did not comply with the regulations, and if the district justices, after hearing the evidence, which the Minister will not hear, in their discretion see fit to impose a very small fine in certain cases, I do not think we ought to interfere with their discretion in the matter.
I think we weaken the case for this amendment by dwelling unduly on one particular class of defendant. The object of this amendment is to reduce the virulence of Section 8. Section 8 implies that every district justice and every Circuit Court judge are in a conspiracy to defeat the purpose of Oireachtas Eireann. Is that true or is it not? There never yet was an executive in any country that did not from time to time come to the conclusion that the judiciary were damn nuisances, that they were hindering and blocking the executive from giving effect to public policy and that something ought to be done to ginger them up. The plain truth is that Section 8 derives from exactly the same mentality as induced Deputy Smith, the Parliamentary Secretary to the Taoiseach, to say on one occasion that it was high time we cleared some of the old "cods" off the bench that were on it on the occasion on which he was speaking, because the judges would not do what Deputy Smith thought they ought to do. At that time the desire which inflamed his manly breast was that the judges should put all of us who were not in the Fianna Fáil Party in jail, and because they would not do it, he thought some of them ought to be got rid of.
Now the Taoiseach feels that persons who infringe emergency Orders ought to be fined up to £500 as the minimum penalty fixed by Executive Order, or six months in jail at the discretion of the district justice. That is a thoroughly rotten principle, and it is a thoroughly rotten principle for this reason: no matter how carefully legislation is framed in this House, cases of exceptional hardship will appear in court. If an Act of Parliament were proposed that women who murder infant children should be made amenable to the capital penalty, few persons would demur at such legislation. If women want to go out and murder infants, it seems well to declare that they ought to pay the penalty for murder. Such was the law. But it became so manifestly outrageous to enforce that law that in Great Britain they amended the law and introduced a special category of crime known, I think, as infanticide, for which a very much wider discretion was left to judges in inflicting penalties simply because judges declared that this habitual sentencing of women to death in circumstances which technically constituted murder was insufferable, because in certain circumstances it was perfectly manifest that they should not be sentenced to death.
Now in a very much minor degree we are attempting to create the very evil that the British Legislature was concerned to abate, because we are saying to the district justices: "If a person is convicted of any offence which comes within Section 8, you must impose the minimum penalty whatever the attendant circumstances may be." It is very typical of the bureaucratic and indeed of the urban mind to take up that position, because they cannot transfer themselves into the circumstances in which we who live in rural Ireland normally live. You get a case brought before the court in which it is perfectly clear that in fact the land has not been tilled as it should have been. But it emerges that the land is the property of a widow woman, that she has one son whom she is gallantly attempting to maintain before the neighbours is a normal boy, but who, in fact, is known by all the neighbours to be a half idiot. The district justice and the State solicitor knowing the circumstances admit at once that this woman did not till the land and should have tilled it. But everybody knows the reason it was not tilled, because the woman left it to this half-competent boy to get the work done that his father used to do and, of course, he did not get it done. According to this, that widow woman is to be fined £500.
The Taoiseach says that she can appeal to the Minister and the Minister can mitigate the penalty. That is all very well. The woman sentenced to death for infanticide in England always did appeal to the Home Secretary and the penalty was always mitigated. But that does not save the unfortunate creature in court the intolerable suffering and apprehension that such a penalty hanging over her head occasions to her. Take a respectable individual operating a little shop in the country. The junior assistant, perhaps a lad of 14 or 15 years, or a little girl, sells a loaf of bread and charges 6d. for it instead of 5½d. The shopkeeper is prosecuted. He goes to court and admits at once that there was overcharging and he expresses his regret. He explains that the boy, had stepped behind the counter only ten minutes before the customer arrived and he did not know the price of the bread and merely took whatever coin was offered to him and threw it into the till. The district justice, if he is satisfied with that explanation, will impose a nominal fine in order to mark that such overcharging cannot be sanctioned and must be penalised. In the circumstances, a nominal fine will meet the case and will make clear that the district justice saw no vice or criminal tendency in the defendant. Under this section the district justice is obliged to fine the merchant £500, if that be the minimum, prescribed penalty.
If you are going to set up a legal system in this country designed to do substantial justice among the various communities where judges function, let the judges function. Let not the Executive intervene to take from the judges that measure of discretion which it was deemed expedient to give them when we established a judiciary. If the judges are of such a character that they will not enforce the law, then they ought not to be judges and the proper constitutional measures ought to be taken to clear them out. I know of nobody here who will say that the judges are corrupt or incompetent. If they are, there is a way to deal with that. The Government can get powers to remove them and put in their places men who will honestly and fearlessly do their duty. But if our judges are honest and competent they understand the circumstances better than the Executive. They know how best to secure the proper observance of the law. They know the methods which will most effectively achieve that end. Why not leave them the discretion they always have had?
I am arguing that this amendment put forward by Deputy McGilligan is a pis aller, something a little less obnoxious than what appears in the section. I want to impress one thing on the Taoiseach, and he is the kind of man who ought to understand because he is, perhaps, the least detached from the rural community of any of the Ministers. He ought to realise the insufferable hardship involved in putting a shameful and onerous stigma on somebody who the judge is satisfied is guilty of no evil purpose— he is merely being convicted of a technical offence. The Taoiseach ought to know that saying to a country person: “You can apply to the Minister for a remission of the penalty”, is very poor compensation. There is no use in talking of the collection of £500 from a small shopkeeper or farmer. They have not got it. They know the moment that sentence is imposed it can never be given effect to, because they cannot pay the fine. It is no special compensation to them to say: “You will never have to pay it.” They can tell you that themselves, because they will not be able to pay it. But that does not materially mitigate their mental suffering.
What is the measure of our problem? Against whom is this section being directed? What crime in this country is being encouraged by the district justice by reason of inadequate penalties? Will the Taoiseach tell us? Is there a plague abroad of land owners who are not tilling their land in accordance with the requirements of the statutory Orders? If there is, I have not heard of it.
Perhaps one in 600.
An overwhelming majority of land owners have not only tilled the statutory minimum, but a substantial acreage in addition. Deputy O Briain agrees that that is true.
Some of them set their lands on the 11 months' system at £10 an acre and tilled the poor parts.
There is nothing to prevent their letting land on the 11 months' system. This section does nothing to meet that. Surely we are not going to allow ludicrous misrepresentations of this section? If Deputy Victory does not know what is in the section, is it not time the Taoiseach told him? It is suggested that this section is for the purpose of encouraging the farmers to till the best land on their holdings. Deputy O Briain knows what this section is intended to carry out. He knows that it is designed to get at what he describes as the very small minority. But is it not "daft" to suspend the whole system of judicial operation in order to get after an evil which all agree is microscopic, presents no serious problem, and shows no tendency to spread?
If this House accepts in this measure the principle that minimum penalties may be prescribed for offences against emergency Orders, it is not the last we will hear of it. This precedent will be quoted and used again and again. Any practising lawyer in this country will tell you that this principle will result in cruel hardship which will afflict not the grave offender, but the defenceless individual who has come technically within the reach of the law. I am thinking of my neighbours in the country, of simple people and the kind of suffering that is occasioned to them by situations such as will arise under this section. I am asking the Taoiseach to throw his mind back to these people who do not know where they are, people to whom being brought to court is in itself a great penalty, people who, when they hear they are fined £500, will be inconsolable, because that in their ears sounds a sentence of destruction.
I strongly object to the section and I prefer the amendment. I will vote for the amendment and against the section. I warn the House that if it does not defeat the section it will be used hereafter for the purpose of introducing a similar principle into other legislation and, if that is firmly fixed in our system of law, then the independence of the judiciary has been very materially qualified, and qualified, not at the expense of the Government, but at the expense of the individual citizen whom the judges were originally appointed to protect.
I wish to protest strongly against this section of the Emergency Powers Bill which fixes a minimum fine for failure to till the required amount. I think the Taoiseach is making a great mistake in doing that. It is a great wrong to the farmers in view of all they are doing for the country at the present time.
Surely the people who do it are not the people who are going to suffer.
I would ask the Taoiseach to put himself in the place of some of the farmers who did not comply with the Order. There is 99½ per cent. of the tillage quota done in Westmeath, I am told by one of the inspectors, but I see an advertisement that four acres are to be set by the Government. I would ask the Taoiseach to go down to the person concerned and investigate his case personally. If he does that, he will see the hardship that would be inflicted if the minimum fine fixed in this section were to be imposed. I think this is a poor return to the farmers after all they have done in growing food for the people of the country. I must say that were it not for the action of the district justice in Westmeath last year, the full amount of tillage would not be done. If the district justice had fined everybody that came before him last year £20 or £30 there would be no tillage carried out by these people. He did a very wise thing, in my opinion. He gave all the people that were brought before him a month or six weeks, after which they were to come back and if they had done the required amount of tillage in the meantime he would reconsider their case. I am sure 40 or 50 cases went through the courts in that way last winter in Westmeath and in every case, when the person concerned came before the district justice again, the tillage had been carried out and in the majority of cases more than the quota had been carried out. If a fine had been imposed for not doing the tillage in the beginning, none of those people would have done their tillage; they would have nothing to do it with. If a farmer of 20 or 30 acres were fined £20 or £30, he would be crippled and could not possibly do the quota. The district justice in Westmeath in my opinion did much to get the tillage done and to encourage people who were not complying with the law to comply with it. I suggest that that should be continued next year. If a man is short in his tillage he should be given a month or two and if he does not carry it out in that time a fine could then be imposed.
The fixing of a minimum fine of £500 is like holding a gun to the farmer's head. I do not think the farmers deserve that sort of treatment because, as Deputy Cosgrave pointed out, the farmers by the acts of this Government for the last ten or 15 years have been brought to very low water. It reflects credit on them that in County Westmeath there is 99 per cent. of the tillage done and if the amount that has been done in addition to the quota were counted, the total would be well over 100 per cent. I think the Government should reconsider very seriously that section. No minimum fine should be fixed, but it should be left in the hands of the district justices and the judges. They will deal with it in the right way and will get the work done. I would ask the Taoiseach to consider that and to accept the amendment.
I, like Deputy Fagan, of course, have every sympathy with the farmers in the great effort made by the great majority of them in this country, but we have exceptional cases who evade the law. I knew a man who did the ploughing and put in no crop.
Was that an offence?
Yes.
Was he prosecuted?
He got away because it as possible to put in a crop within the year. Instead of sowing it in February, he could sow it in December. He got away on a technical point. Deputy MacEoin cited a case here this evening which, on the face of it, looks like cruel hardship. I would suggest that if the tillage inspector were sent for by some of those people who have difficulties about getting their tillage done, the tillage inspector could arrange for the setting of the land and give the owners some reasonable compensation. There should be some way out for that class of person. We have not many such cases, but there are some. I think everyone in the House realises the importance of growing food to-day. We are driven back on self-sufficiency whether we like it or not.
Supposing they got credit to do the work they were required to do?
There is a class of person who is trying to evade the law. I know some of them. They try every kind of game and sneer and laugh behind backs. I want to bring that person to book. The tillage inspector should be sent for and if he cannot satisfy the tillage inspector, the inspector should take over the land and have it tilled and pay the owner compensation. That would get over the difficulty. None of us, particularly those of us who are farmers, likes the idea of a compulsory minimum fine. I would be inclined to say to the Government that they should consider this. I was amazed when Deputy Dillon told us that we should take notice of what the judiciary is doing. He criticised what the Parliamentary Secretary to the Taoiseach said on one occasion and then he came along and went further himself.
I heard Deputy Bennett saying here that some of these farmers were too clever. I agree with Deputy Bennett there. It is the mean type that the whole trouble is about. I would suggest that the fine should be reduced, if that is possible, but at the same time I would only reduce it on condition that the tillage inspector was sent for, that he investigated the whole case and, where necessary, that he would try to set the land and give some compensation for the land he took over.
I am all in favour of the law being absolutely enforced and I am all in favour of nothing going forth from this House as said by anyone here which would in any way bring the law into disrepute. One of the reasons why I would be against the innovation contained in this section is that I think the effect of it would be to bring the law into a certain amount of disrepute. There came to my notice— not in my professional capacity—a certain prosecution. A shopkeeper in a country town had in his employment a servant girl who happened to serve an inspector, or some person making inquiries, with a box of matches at, I think, a halfpenny above the regulation price. That constituted a breach of the law and constituted an offence. It was my view, on hearing about the case that, so far as the shopkeeper was concerned, particularly having regard to the early stage in the history of these newly created offences, that it was only a technical offence, but I recognised that somebody has got to carry the burden in order to advertise to the public what the law is. A very competent district justice heard the case and he imposed a penalty of £10. The shopkeeper was entirely unaware of the sale. The sale was through the instrumentality of the servant girl who came into the shop because somebody came into the shop at that moment and there was no one in the shop to serve. Obviously, it was implied that the shopkeeper had given her authority.
I think any Deputy would agree with me that £10 was, under the circumstances, a severe penalty, but it may have been necessary in the general course of things to advertise the position of the law. But what would be the position if the penalty were limited to at minimum penalty of £100 or £500 in the same circumstances? It would break that particular shopkeeper. That is a very serious matter. I think that this section is altogether too harsh. It is introducing a novelty into the administration of justice that is entirely uncalled for and is offering a gratuitous insult to the bulk of the population of this country.
Why? How is the bulk of the population of the country insulted?
I am sure it is an insult to the bulk of the people of this country to suggest that they are not going to obey the law. I have given an instance. I have told the Taoiseach of a particular case where there was a fine of £10. I am a lawyer; there are other lawyers here; all of us here are in one way or another connected with legislation, and we find it impossible— at least I do—to follow day after day the Orders that are put out by the Government. With the best will in the world, it is very hard to keep up-to-date with the various offences that are created from day to day. The general members of the public are undoubtedly unaware of what is an offence or what is not an offence. You go to bed one night having done a particular act during that day, and you wake up in the morning and find that if you do the same act you will be guilty of an offence. There is not a sufficient explanation of what the law is. On numerous occasions there must be, and are, breaches of the law by undoubtedly innocent people. I am not suggesting for a moment that the Government are deliberately going to create offences or to frame penalties to fit these offences negligently or without due regard to all the circumstances of the case, but I do submit that the innovation introduced in this section leaves them open to do that. I do not think that the circumstances of the case or a knowledge of what has been happening in the country justifies this section.
The Taoiseach objected to my use of the phrase "a gratuitous insult". I did not use that in any harsh sense, but it is a gratuitous insult to the bulk of the population to suggest that they have not obeyed the ordinary law or the law as reinforced in the particular Act with which we are dealing. It is now found necessary to tie the hands of the justices to such an extent that they must impose in certain circumstances a certain penalty. That is the opinion we have of how laws are going to be interpreted and obeyed in the country, and I do not think it is a very good thing.
I hold no brief for those who have been dabbling in the black market, or those who have been overcharging unfortunate people. I want to see them brought to justice where possible, but I must say that I think that, if we pass this section, we shall bring the law into a certain amount of contempt because possibly there will be cases where the district justice, with a knowledge of all the facts before him, will be obliged to impose the minimum penalty and that will only lead to further evasions of the law. It will bring the law into disrepute. One can almost imagine what a justice will say with the ruined head of a family before him. He will say: "I have no discretion. That is what Parliament has decreed and I must accordingly impose this penalty."
When it was found necessary to deal with infringements of the licensing laws in this country some years ago an innovation was introduced in a sense making it mandatory that a conviction should be recorded and that forfeiture of the licence should follow, with the result that for some time licences tended to disappear altogether. At present there have to be three records of convictions before the licence is abolished. That was a concession to the licensed trade which successfully endeavoured to get the law amended in that respect. There must he three records of convictions now before the licence can disappear, but in many cases, if the minimum penalty proposition is adopted here, it is within the power of the Government to so frame the laws that any person can not only be wiped out of business as a result of the commission of a technical offence, but must, in fact, be wiped out of business. We here are the persons who will be held responsible for that. Surely to goodness, there is enough public spirit left in the country that the laws, harsh and all as they are at the present moment, difficult and complicated as they are to understand, will be obeyed by the people of the country without the necessity of resorting to such a section as this. What has happened during the past three years since September, 1939, to justify the harshness of this section? Surely we could frame this Bill in a different way? It is not beyond the wit of the advisers of the Government to frame Bills in a different way to get hold of the real blackguards and the real delinquents without leaving this extraordinary power in the hands of the Government. I do not wish the Government to assume, from that remark of mine, that I suggest, in any way, that they are going to misuse these powers.
Oh!
I am not suggesting that.
I do, undoubtedly.
Deputy Dillon is capable of suggesting anything.
Experience has taught me.
I am speaking entirely for myself. I am not suggesting in any way that the Government will misuse these powers, but it is still a dangerous weapon to put in the hands of the Government and it is more or less a breach of trust in the people to give them these powers. When the original Act was passed in September, 1939, I thought that it was not such a good thing to give the Government these powers. I anticipated that they might be carelessly or improperly used. That was the breach, that was the chink in the armour, so to speak. We handed up the right of making laws to the Government. Now we are giving the Government not only the right of making laws but the right to fix minimum penalties afterwards and to limit the action of the judges in properly trying cases that come before them. I think it is a very unwise thing to do. It is neither necessary nor expedient and I do not think any case has been made for it.
If we could ever get to the Arcadian state of believing that the Government will not abuse powers given to it, of course we could wipe out the courts altogether. The only reason that the courts were established, that over the centuries the people have fought for the independence of the judges and have buttressed up and fortified the judges in their independence, is that there was that particular feeling that Governments would abuse their powers. If it were not for that feeling and if it were not for the experience people have with regard to the misuse of powers, a great deal of contentious history would never have been written. I have not reached the idyllic state of believing that the Government will not misuse their powers, and I want to guard against that misuse. I have listened to only one speaker trying to defend the section, Deputy Victory. He gave one case, and then he spoke of a category of cases. The one case is a case which in some way or another would escape the law altogether. It will not be met by this section. If it is a case which should have been caught and was not caught, the Government have ample power, which they avail themselves of frequently, to amend and change and repeal and put out new Orders. If it is only a case of getting wording to fit the offence, they have that power already. Deputy Victory then went on to speak of easing the fines. The whole burden of his song was to ease the situation which has been created in the country through the imposition, according to what gathered from him, of too severe penalties. That was the only speech made in defence of this section.
I want to try to find out what is the framework of all this. I have said already that, as far as the definition of offences is concerned, the Government have a free hand. They can define and re-define. They can do their usual business of testing by trial and error, and they can get there eventually. They can get a comprehensive definition which will catch anything they intend to catch, and they can do that by a series of Orders. If they are not capable of doing that, it is not our fault. They have the drafting experience, and they have considerable practice in these later days of trying to frame wording so that it will catch the particular offence they want to meet. So far as definition is concerned, they have every power that can be given to them. So far as the application of whatever definition they may get from time to time is concerned, I think they have the fullest possible power. In so far as they had not that power, they are given it now. Under an earlier section, they can make any Order retrospective. As Deputy Everett said, they have issued Orders and prosecuted under them at times when people, bona fide, were ignorant of what they were being charged with. I have personal experience of a case in which, under the Department of Agriculture, a person in the Cork and Kerry labour group was prosecuted; he was given time to do certain things, and up to the day on which that time limit expired it was not possible to get from the Stationery Office a copy of the Order under which he was prosecuted. But that did not deter the Department from going ahead, and that man had to be subservient to a particular piece of legislation of which he had no notice, and could have had no notice. I had notice, because as a Deputy I get advance copies of certain Orders. I was probably one of five or six people who had any knowledge of the matter. As far as that individual and his legal advisers were concerned, they attended at the Stationery Office day by day, until the last day of his term for complying with the law had come and gone, and day by day they were told that the Order had not been published. But that did not deter the application of the Order.
The definition is under the Government's control. The application, even with retrospective effect, is now under their control. As far as the penalty is concerned, and the sufficiency of it, there is no allegation made here that the extremity of the penalty is not sufficient to deter any of the people who may commit offences. As it used to be, it was fairly heavy; as it is going to be, under the early part of this Section 8, there is the possibility of a £500 fine, together with a fine of £10 a day for a continuing offence, and, at the discretion of the court, imprisonment for a period of 12 months, or, if the court likes, both such fine and such imprisonment. That ought to satisfy the most hardened bureaucrat as regards the weight of it. As if that were not enough, there is power that any goods or chattels in relation to or by means of which the offence was committed shall be forfeited, and those goods and chattels can be disposed of as the Department thinks fit. In the case of compulsory tillage, Orders have been made allowing entry on the land and the working of the land. As far as those land owners are concerned who may come under the harrow of the law, they can be fined up to £500, and, in case of a continuing offence, £10 a day; they can be sent to jail for 12 months, which ought to keep most of them from a repetition of the offence in the year afterwards, and in the meantime the land can be entered upon. If that is not a sufficient deterrent, the Government should have told us that it was the extent of the penalty that was not sufficient, and gone on to amend it still further.
On the lenienoy side, as far as the application is concerned, we are asked here to permit a minimum fine to be established. I asked that a case be made on that. I had hoped that some statistics would be produced—I gave an opportunity in a question put down yesterday—which would enable the House to form an opinion on one point, that is to say whether the cases in respect of which leniency is complained of are cases which are arising only in one or two parts of the country or all over the country. Very well, it is all over the country. I was wondering whether it was only in the case of one or two district justices, because the Government can prosecute anywhere they like. If one or two district justices are cranky about those things, no case need be brought before them. Those people can be prosecuted in any district court, irrespective of the place in which the person is alleged to have committed the offence. I find it is all over the country; in other words, it is the common view, the average view, and the district justices have from time to time, in respect of mitigating circumstances, worked towards leniency.
That, I think, is sufficient answer to any case that might be made. It is quite possible that you might get a district justice who was taking too lenient a view of a particular type of offence, but if the district justices on the average are, so to speak, being brought under adverse criticism here, then I think that is almost in itself a sufficient answer to the whole matter —that right over the country, when cases are brought before the District Court, the judges now and again find such mitigating circumstances as enable them to impose small fines.
I would not say, certainly in respect of one type of case, that there is any complaint about failing to find that an offence had been committed. I take a question that was asked yesterday in connection with the land offences, and I find that there are 430 occupiers prosecuted. Up to date, 341 cases have been heard in the courts, and 339 convictions were obtained; one case was adjourned and the other was dismissed without prejudice. Out of 341 cases taken into the courts, convictions have been obtained in all except two. Of those two, one was adjourned, so it is still pending, and the other was dismissed without prejudice. The district justices are certainly doing their duty in respect of finding that offences were committed. The fines ranged from the minimum of 1/- up to the maximum of £100. The question is whether the district justices were entitled to impose small fines in some of those cases, or whether it was proper for them to do so. They have the facts before them. The Taoiseach told us in this House that in certain cases the two Departments concerned, the Department of Agriculture and the Department of Supplies, did not believe that the mitigating circumstances were such that the particular fines imposed were sufficient. It depends on who reported to those two Departments. If it were the officials of the two Departments who were down in the courts, they might have felt rebuffed at the fact that a particular penalty was not imposed, and naturally their report back to the Department would be somewhat prejudiced. I think one would need to have heard not merely the Departmental side, but the opposite side before a correct judgment could be found as to whether or not the penalty imposed was a sufficient one.
On the known list of cases—this House at this stage I am sure will not go into the circumstances of mitigation and leniency—the Department simply having come to the conclusion that fines which were not proper were imposed, we are asked to change the whole law. In respect of an unspecified list of matters, we are to give the Government power, by Order, to declare that there is to be a minimum penalty. I think that that is too great a power to ask. We inquired about the question of an appeal and we were told that, if a minimum fine is imposed, so far as there is any complaint about the harshness of the fine, the only appeal is to be to the Department. Is not that getting very close to taking away the control of the judiciary and establishing a clear and open bureaucracy— giving the bureaucrats power, to be exercised on information which will be supplied to them behind closed doors, about which the public will not hear, where political considerations can weigh and where you are not going to have the same impartial outlook as that of a person who is buttressed in his position and accustomed to decide on the presentation of a case in open court? That is a bad change and a change for which no argument has been advanced. The only argument supposedly made in favour of it turned out to be an argument against it.
I ask the Government to reconsider this whole matter. If they do not think they have sufficient power in respect of any of the matters I have spoken about, they can describe the offence in anyway they like; they can hunt the offence by a series of phrases until they get the one that catches the point. They have considerable power and they have used that power to get people prosecuted in circumstances that seemed definitely unfair. There is power to impose a sufficient penalty, on conviction, to deter anybody from the commission of the offence. We find now, at the heel of the hunt, that, in so far as leniency is complained of, it is leniency on the part of the whole corps of district justices. Deputy Esmonde said that this was an insult to the public but surely we are now criticising, without any statement as to why, the whole corps of district justices. I do not think that that should be done.
At the outset, I said that it was with extreme reluctance the Government took the step of bringing in this measure, that we realised that it would be very much better if we could attain the purpose we had in view—to safeguard the community—by indicating maximum penalties in the usual way, leaving the law to be administered by the district justices in the ordinary way. I pointed out that there were long lists—I read a number of them—of cases in which there had been convictions in respect of offences of serious consequence to the community. That long list indicated to our minds that the district justices generally— perhaps, there were some exceptions— did not seem to realise the seriousness of the situation through which we are passing. Somebody said that this legislation was an innovation. Unfortunately, the whole crisis is an innovation. We are asked to do things which we do not have to do in normal times. We have to get the people to realise that the provision of food for the community in present conditions is a serious matter and that it is also a serious matter for people to make use of the shortage of supplies to enrich themselves. The whole of this legislation is in the interests of the community, as a whole, and it is ridiculous for Deputy Esmonde to suggest that it is an insult to the community as a whole. The only people aimed at are those who are not doing their duty. If the majority of the people are doing their duty, then it is right that the black sheep should not get away with their misdeeds.
I should like to add my word of compliment regarding the work done by the farmers. The farmers have done marvellously well under the circumstances but it is not much of a compliment to certain farmers who have done their duty with great difficulty that somebody beside them, who could much more easily have done his duty, should snap his fingers at the law and refuse to do his part. This legislation is not aimed at the farmers. That it took the particular turn it did, is due to the fact that, as soon as this legislation was mentioned, the farmers' position was brought up. This legislation refers much more to offences for contravening Orders made by the Department of Supplies than to any other offences. The maximum penalties must be large. You have to put the maximum high because you have to cover so great a variety of cases. You do not want to prevent the penalty going up to fit the crime when the crime is of a particular type. The variety of offences to be covered is so great that you must necessarily have the maxima high. If we are to have minimum fines specified, it is equally important that there should be as much discretion as possible given to the Government when making the Order, so that, when dealing with a whole range of matters, if they have to fix a minimum fine for a particular offence, that fine will be sufficiently large to be a deterrent.
It is ridiculous to say, that this is persecution, rather than prosecution; that if you have power to go after a person for a continuing offence you are necessarily persecuting him. The whole purpose of this Bill is to prevent people from contravening for selfish motives the law made in the interests of the community as a whole. If the Ministers responsible for safeguarding the community in this matter find they cannot do so because of the trifling nature of the fines imposed, compared with the seriousness of the offences committed, they might as well not make Orders at all. The House either wants the interests of the community to be safeguarded during the emergency, or it does not. The Ministers who are responsible in this matter believe that we, here, are serious and that we do want to have these Orders obeyed and the community safeguarded in the way these Orders are intended to safeguard them. You have, for instance, petrol coupons offered for sale and you have the Probation Act applied in that case. You have a person using kerosene, contrary to the emergency order, and you have the Probation Act applied.
This Act does not prevent that.
What is the second case?
A case of kerosene being used in a motor lorry contrary to the regulations. In other words, the Minister's Orders, to ration kerosene and make it available in the best and proper way for the community, are being set aside. I read a whole host of examples the other day. I have a long list here. I am not going to read it, but I will take some cases at random from it. I will not select those which are particularly bad. I find a case here of tea, which should be sold at 3/4 a lb., being sold at 5/- a lb. A fine of 5/- was imposed for overcharging and one of 10/- for not giving a receipt. I find another case of tea being sold at the rate of 8/- per lb., a second offence of failure to mark quantities and a third of refusal to issue receipts. The decisions in that particular case, where there were three offences, were: the Probation of Offenders Act was applied in the first case, there was a fine of 10/6 in the second, and a fine of £1, with costs, in the third.
There must have been mitigating circumstances.
The Deputy can say that there are mitigating circumstances in regard to every one of these cases. I have no means of examining the details.
That is all I want. If we cannot get any one of the cases examined from the point of view of the mitigating circumstances, how can we examine them here?
There is no use in doing that, as every person can say that there are mitigating circumstances. If we are to have a deterrent, in the interests of the country, we must ask whether you are going to take every circumstance as a mitigating circumstance. The point is that it will be hard to find any mitigating circumstances, anyhow, for a person charging 8/- for a lb. of tea when he knew the price was 3/4 a lb.
If you could buy it at that.
The fact is that tea is not permitted to be sold at more than 3/4 per lb. and was sold in the present case at 8/-. The penalty in these cases was the Probation of Offenders Act in the first case and a fine of 10/6 in the second.
May I ask the Taoiseach this question? If the Taoiseach discovered, in the case of any person— and I am not defending the black marketeers—that there was a breach of the, Emergency Powers Order in selling tea at 8/- a lb., and that that was a person living near the Border, who had more persons on the tea card than he could get tea for, who bought 5 lbs. of smuggled tea, and produced to the court a receipt showing that he paid to the smuggler 37/6 for the 5 lbs. of tea, would the Taoiseach think that there were extenuating circumstances in that case?
I am not going to answer hypothetical questions of that sort, nor will I go into all the points which the Deputy's imagination could bring.
I want only the facts as spoken in court, and not the imaginations.
If we were to take all these cases, even at the end we would be no better off, because in any particular case the justice dealing with it took the points into account, summed them up in the presence of the persons involved, saw the witnesses, and had full opportunities. I do not think we would get any further.
I think not.
I have a long list here which prima facie goes to show that the justices in different parts of the country do not appreciate the seriousness of the situation, and that there must be some method to see that the seriousness of it, as seen from the Executive side, will be brought before the community. We have not brought this in with anything like pleasure. In the case of tillage Orders, there are a number of cases here where fines have been imposed that seem to be altogether ridiculous. For instance, in a case where 63 acres were tilled out of 82. leaving 19 in default, which is a quarter of the amount, there was a fine of £2 with 2/6 costs. In another case, where 54½ acres were tilled out of 65, with 10½ in default, there was 10/- costs.
Did the Taoiseach hear the story of the man with the spade?
We all could get examples and use them to let other people off.
Why not put in a maximum and let the justices decide?
Because I have a list here which seems to indicate that the justices do not appreciate the seriousness of the situation through which we are passing. It is not their duty, from day to day, to take stock of the position as a whole. If there are cases like this, where 10½ acres are in default out of 65, and if other people take pattern by that, there will be a considerable shortage in the food supply. The Minister for Agriculture has seen where we will be if this is allowed to continue.
The Taoiseach is convicting district justices. He is putting the case to us to convict them.
I am convicting nobody, but these results seem to suggest to me that the district justices, from the penalties they have imposed, do not appear to realise the seriousness of the situation. The people at the centre, who are responsible for the safety of the community at the present time, must have some method of making apparent the way in which they see the situation.
Would the Taoiseach mind giving the date of that prosecution?
I asked deliberately that we should not have the names and the particulars.
I can ask for them later. Last year there was an epidemic of foot-and-mouth disease, and a man might have his land fully stocked and not be able to afford to till an extra 10½ acres. I am not saying that that was the case, but would that not be a case which a district justice should take into account?
I was assured by the Department of Agriculture that, before they prosecuted in those cases, the general practice was to satisfy themselves that there were not mitigating circumstances to such an extent as would explain the failure to comply with the Order.
The district justices thought that there were.
Has the district justice the responsibility for seeing that the community will be fed?
He has.
He is a private individual with a duty to perform.
The Taoiseach is convicting him.
I am saying that these cases show prima facie that the district justices have not realised the seriousness of the situation.
The Taoiseach is convicting them of that.
I am.
Which is untrue.
I can say what my opinion is.
So can we all.
I am putting it no farther than that. The situation is that we cannot hold the Minister for Agriculture, on the one hand, responsible for seeing that food is produced for the community, and on the other hand leave it completely and absolutely to other people to nullify his efforts, by giving altogether inadequate penalties as a deterrent. That would be an incentive to those who may have been inclined at first to obey the law.
The non-compliance with tillage Orders is not the most difficult or most serious case. The cases in the Department of Supplies are more serious. There is a shortage of certain supplies, and we must make some effort to spread the available supplies over all sections of the community. We cannot have some people in a particularly privileged position where, by money or some other means, they are able to get hold of these limited supplies and use them for their personal and private advantage. It is an attempt on the part of the Executive to see that if the rules made in the interests of the community are broken by people, they will pay a heavy penalty, and to see that they will not be tempted to gamble on the fact that they can make so much money if they contravene the law, and that, if they break the law and are caught, the penalty is going to be only a trifle. We want to balance up the account and make them feel that if they try to make money and are caught in trying to do it, at the public expense, at the expense of the poorer section of the community, they will have to pay a heavy penalty; that if they are going to gamble and speculate in that way, they will have to realise that there is a second side to it and that it is not all a question of gain for them.
I will admit, as I said before, that if we were able to be sure of catching all those who break the law, the certainty of punishment would be much better than the severity of it, but when you cannot make certain, as you cannot, that all those who do so will be caught, the neat best thing is to make sure that they will realise that they are running a big risk and, if caught, will pay a penalty. I can imagine all sorts of hard cases and all I can say about them—and I am not pretending that it is a complete and adequate safeguard —is that the district justice, if he thinks that in a particular case there are mitigating circumstances which warrant, a reduction of the penalty, can indicate to the Minister that, in his opinion, the Minister should exercise his discretion in that respect. The Minister in question would be the Minister for Justice. His Department is not the Department immediately involved in the enforcement of the Orders, so that, to that extent, there is an outside mind dealing with a particular case.
I will admit again in that connection that it is not as adequate as I should like it, because it is obvious that the Minister cannot try the case in the same way as the district justice trying it locally who has a view of the facts as a whole, and if it appeared to us that the justices realised the serious nature of the position, this provision would never have been brought in. It is because the Ministers who have the heavy responsibility of trying to ensure, firstly, that the community is fed, and, secondly, that those articles in short supply should be made available, feel that they cannot effectively do their work if penalties of the magnitude of those which have been inflicted in a number of cases continue to be inflicted.
That is the position as we find it, and I think the House will have to face it, too. We are in a serious situation. We want to get these things done and to make sure that those who are offending, and in many cases obviously offending wilfully, because it means money for them, will be severely dealt with. If there is any better way which can be suggested, I for one have an open mind, but having discussed this thing and seeing all the objections. which are being raised here—it is not the first time they occurred to us. I do not say that every particular objection did occur to us, but, in general, the principal objections raised here did suggest themselves to us—we reluctantly came to the conclusion that this power was necessary.
With regard to extending the scope of the provisions in regard to minimum fines—it is not absolutely new because there are two or three cases in which minimum fines are imposed by legislation already—we are not anxious at all to extend that scope. We can only say that we are passing through a dangerous crisis and the Executive must be armed with the necessary powers to safeguard the community, and, if justices do not realise the seriousness of the situation as we, whose business it is to see it as a whole, realise it, the only way in which we can convey it to them is by the Legislature, on the motion of the Executive, saying: "This is the case you make for it. We believe the situation is serious to the extent you mention, and we therefore convey it as a direct instruction of the Legislature to the justices that cases of this kind must be dealt with in the manner indicated by legislation."
The Taoiseach, so far from making a case for the minimum penalties proposed to be embodied in this section, has made a case against them. He has asked for suggestions as to some better method of achieving the purpose which he says he has in view and which I say we all have in view, and in so far as the Taoiseach in his opening remarks appeared to imply that any section of this House was in favour of any person taking advantage, or allowing any person in the community to take advantage, of the present emergency and the needs of the community, he was implying something which has no foundation whatever.
I do not think I said it and I did not mean to imply it. If, by any chance, anything I said could be read in that way, I want to say that I did not mean it.
That was the impression conveyed to my mind, but we may start with the certainty that all sections of the House are anxious and Willing to do everything possible to put an end to black marketing.
I hope so.
We object to this method of meeting the situation because we are entirely convinced that, so far from meeting the situation, it will merely aggravate, and, possibly, acerbate it. If the Taoiseach had taken the advice of some of his legal advisers, if he had had the industry to search into legal history, he would have found that one of the surest methods of bringing the law into contempt, one of the surest methods of providing means of evading the law, is the rigour of punishment. It has been the whole history of jurisprudence that over-rigorous punishment, so far from deterring criminals and so far from achieving the purpose desired, that is, the prevention of crime, had quite the opposite effect. British criminal law is built up on the manner in which severity of punishment was evaded by lawful and legal means.
What we object to is that while public opinion should be, and, to a very large extent, is, behind every effort to put an end to black marketing and to the exploitation of the needs of the community in the present crisis, over-severity of punishment, turning the district justice into a rubber stamp as this proposes to do, will cause a reaction in public opinion in favour of the black marketeers. That is what we object to. That is what over-severity of punishment always does. From the time I had anything to do with the administration of the law in this country from 1922, I fought inside against minimum penalties. I fought as Attorney-General against them, and I am fighting now as a Deputy in Opposition against them, because I believe they do not achieve their ends, and that, so far from achieving their ends, they bring about precisely the opposite of what is desired.
The Taoiseach appears to me to have adopted the theory of a writer on jurisprudence whom I remember reading. His speech recalled to me my student days when I read in some book on jurisprudence the theory that it is better for the law to be certain than just. That sentence appears to me to embody what the Taoiseach has just said: that it is better for the law to be certain than just. The Taoiseach wants to be absolutely certain that if there is an offence, however technical it may be, automatically the district justice has nothing to do but to record a conviction and impose a minimum penalty. What is going to be the result of that, apart from the effect on public opinion? The result is going to be that nothing but minimum penalties will be imposed on those who have mitigating circumstances and on those who have not mitigating circumstances. There is no objection from this side of the House to the maximum penalty, provided that it is the persons in whom the Executive have entrusted the exercise of judicial power in this State, by their own appointment, who do that sort of thing. We have no objection to a particular maximum penalty being put in to meet a particularly serious case, but to provide that every case, irrespective of the facts and circumstances, must be dealt with on the same par as a very serious case, and a case where there are no mitigating. circumstances whatever, is something that we cannot stand over.
The Taoiseach, on two occasions, in the course of his remarks, stated that there was a prima facie case against the district justices. He said that there was a prima facie case that their actions in connection with prosecutions, imposing fines and other penalties, gave the impression that the district justices did not appreciate the gravity of the crisis. A prima facie case? The only sort of case that could be made for this is a conclusive case, or, if not a conclusive case, at least a case that is not merely a prima facie case. A prima facie case, from its very terms and words, means a case that can be answered. If it is a prima facie case, an opportunity ought to be given to allow it to be answered. I heard the Taoiseach giving a few instances, which did not commend themselves to me at all, but before I refer to them I should like to ask this question. Have the Government, or the Ministers who are responsible for the prosecutions in the cases of which they now complain, made any representations, through State solicitors or State counsel, in any particular case or series of cases, that the circumstances of the time or the particular circumstances of the case, irrespective of mitigating circumstances, required that in view of the gravity of the crisis the offence should be marked by a heavy penalty? Have these representations been made by State solicitors or State counsel in court before the district justices, before these justices are condemned on what the Taoiseach has twice said is merely a prima facie case? Everybody knows what is meant by a prima facie case. It means a case that has not been really investigated, and that is the case that we are asked to pass this section on, a case that has not been thoroughly investigated.
The Taoiseach said—and, of course, it was perfectly obvious that he could not be in the position to say anything else—that he was not able to give the circumstances of each of these prosecutions which were before him. He spoke of somebody selling tea at 8/- a pound instead of 3/4. Everybody knows that 8/- a pound for tea in the black market is a ridiculous price. It is 5/- a quarter in Moore Street, and the usual price is £1 per pound in the black market. Leaving that aside, however, I can give a case, that came within my own purview in practice, and where there were mitigating circumstances, of a proprietor of a big concern who had given definite instructions to his employees not to contravene the Order, but an employee, perhaps for reasons of his own, sells the tea at 8/- instead of 3/4, and a prosecution follows. The proprietor comes in to the district justice and says: "I have done everything possible to comply with the law; the law has imposed on me liability for the acts of my employees, and I am prepared to accept that liability, but at the same time justice requires that if I have taken every step that was reasonably and humanly possible to see that the law was observed properly, I should not be punished in the same way as the person who actually did the job." I know of cases also where the actual person who sold the article at a greater price than the fixed price was fined less than his employer, who was held vicariously responsible for the act of his employee.
There must be some justice in this. Justice must be tempered with mercy, or there will be no respect either for justice or the law, and that is what we object to in this: that it will defeat its own ends. We object to it on the question of principle, in the first place, but also on the question of expediency. because we believe that if the district justices are treated fairly, they will do their duty by the people and the State as they have always done it. I want to know, and I ask again, can any Minister connected with these prosecutions tell me, or can the Taoiseach ascertain it from his Ministers and tell me, or any case where, a solicitor or counsel prosecuting in any offence having made representations in a particular case to the district justice, these representations were deliberately ignored?
The Taoiseach has spoken about a case of the sale of petrol coupons where the Probation of Offenders Act was applied. If that Act was improperly applied, the prosecution would have their remedy, as there is an appeal in a criminal matter, by certiorari, and I want to know if that was tried in this case of the application of the Probation of Offenders Act. I want to know if the Taoiseach has forgotten that in all these cases he has available to him the machinery of the Military Courts, the special tribunals, which have been largely availed of. Why not try them, as they have, in fact, been tried in certain cases—even in connection with the sale of petrol coupons? I have seen such cases come before the special tribunal, and what is the hullabaloo about, when you have that tribunal? It has not, perhaps, the judicial experience and the judicial training of the district justices, but where is the case for us condemning, by a legislative Act, on a prima facie case, an inconclusive case, a case in respect of which the Taoiseach is not able to give any details or any conclusive or coercive evidence—where is the case for us condemning the district justices for not realising the gravity of the crisis? I think it will be agreed that since 1923, when that body were established, they have given the greatest satisfaction of any branch of the judicial hierarchy and have done their duty in every crisis; and in ordinary fairness to them, a case of this kind should not have been made here, in the first place, and if there was a case to be made, at least there should have been an opportunity afforded of answering it; at least, the prosecuting counsel or solicitors, in condemning these cases, should have made their representations in open court and to each particular district justice. That is where the case should have been made, and not in this House—the case that has been made here for increases. in penalties.
We have not got any statement or any evidence whatever that these men have not realised the gravity of the situation. I would venture to say that probably the whole of them, and certainly 99 per cent. of them, are in closer touch with the people of this country than any member of this House, including the members of the Government. They are fully alive to what is going on around them. They live with the people in their districts and they know what is going on, and the gravity of the situation. They are in a judicial position. They have to act between the prosecutor and the person charged. No person can be a judge in his own cause and I say, and I emphasise it, that, particularly, no official either can be, or ought to be allowed to be, a judge in his own cause, because that is what is happening here. It is the officials who want this. It is they who want, as they always wanted, this thing of minimum penalties—that has been my experience since 1922—because they want to have their own way always, and they cannot understand a judge hearing a case impartially and then deciding against the way they want it to be decided.
I have seen—and I know as much about it as any member of the Government—that a person who is in a position to prosecute in any of these cases for the State, inevitably becomes an advocate. When he is making his report, you will not get a fair or impartial review of the circumstances of the case. You will get a grouse and a growl against any decision that is brought against the State. They always complain when there is an adverse decision. I have never known a case where any Government Department or Government official was satisfied when the case was given against them. I am quite satisfied that the judge or district. justice who decided a case against the State was not wrong, but that is what is happening here.
The last thing that I have to say is this: that so far as I know—and I am open to correction if I am wrong—in the case of the multitudinous Orders made during the last war under the Defence of the Realm Regulations, and in the case of the multitudinous. Orders that are being made at the present time in Great Britain when Great Britain is fighting for her very existence, I challenge the Taoiseach or any member of the Government or their legal advisers to produce any regulation which provided for minimum-penalties in a time of great crisis in that country.
Deputy Costello has said that everybody in this House wants to see black marketing suppressed. Certainly, the speeches made by members of the House in the past have given that impression. Most of those speeches were, however, directed towards demanding of the Government that effective action should be taken to that end. The Government, in order to take effective action, thinks it requires another instrument. Deputies, however, are now opposing the giving of that instrument to the Government. What was the burden of the complaints made by Deputies here in the past? First of all, that only a fraction of the number of cases of offences which are committed appear before the courts at all, and that when they do come before the courts the penalties imposed are, in a great many cases, inadequate to the offence. That has been the burden of Deputies' complaints, and they have voiced them as a criticism of the Government.
When did that happen?
On many occasions in the past.
Cite even one?
Do Deputies appreciate what the problem of dealing with black marketing is, or do they not?
Do not answer the question by asking another.
The Deputy's interruption is completely irrelevant. I am sure there is no Deputy in this House who will deny that, in the past, there have been many allegations made in the House that the Government was ineffective in the action it had taken against black marketing and that, in the cases where persons were brought to trial, the punishments imposed by district justices were inadequate. Is not that correct?
The first part is correct and the second part is not.
And you refused to prosecute in a number of cases brought to your notice.
Is that denied—that the complaint was made here time and time again that the penalties imposed by district justices were inadequate?
And you declined to prosecute in a number of cases.
Does Deputy Norton deny that he made that complaint?
I made the complaint on numerous occasions and will make it again.
And other Deputies made the same complaint. This device of minimum penalties is not new to the law. It has been adopted in other cases where the circumstances were such that the difficulty was in producing evidence that would lead to a conviction. Revenue cases are of that kind. Offences against the revenue, of smuggling goods into the country, the evasion of the payment of tax, are not infrequent, but only in a small number of cases is it possible to get evidence that will stand in a court of law and lead to a conviction. Because that was so, even in normal times, the device of minimum penalties was adopted in order to ensure that persons who took the risk of breaking the law would realise that the penalties that would follow detection were going to be severe. The penalties were designed to deter people from taking those risks, and they may have had that effect. I do not say they necessarily had that effect, but certainly people will be less inclined to take the risk of breaking the law when they know that severe penalties will follow than if they are led to believe by newspaper reports that the penalty will be a light one.
The whole difficulty in regard to enforcing price fixing Orders is of getting cases into court at all. Every Deputy knows that offences against these Orders are committed daily without the facts ever coming to light at all, because the purchaser, as well as the seller, is engaged in a conspiracy of getting around the law. It is not only in the interest of the seller of goods that a price fixing Order should be evaded. It is frequently also in the interest of the buyer of the goods. The buyer of goods may be getting supplies in excess of what he is entitled to. He may be getting an undue proportion of the limited quantities available for the people of his particular district. He is engaged in a conspiracy, with the seller of the goods, to break the law, and each is getting an advantage from their action. In such cases it is almost impossible to secure a conviction: to get evidence which will stand in court or justify the court in imposing a penalty. In the limited number of cases where it becomes known that an offence was committed, the difficulty is to get witnesses to give evidence. Do not Deputies know that? Is it not known to everybody in this House that even where it is well known that a trader is overcharging for tea, flour, or some other commodity, nobody in the district will come forward and give sworn testimony in the court to that fact?
Is that a case of allegation?
Is it not true? Is there any Deputy who denies that it is true?
The Minister is making the case for minimum penalties.
In the great majority of the cases that come to court the only evidence available is that of the officer in the Department of Supplies who detected the offence. That officer went, perhaps, into the trader's shop and succeeded in purchasing 1 lb. of tea at 10/- or 15/-. As a result of that one particular incident, the trader is brought to court. When that case appears before the court, the justice is dealing only with the facts that are sworn to before him, and what is sworn to is that on one occasion, to one person, that trader sold tea at a price in excess of that fixed by Order. But does anybody believe that in 99½ per cent. of these cases that have appeared before the courts the only offence committed by that trader was that for which he was convicted? Of course not.
Nobody except the inspector swears as to what happened when he went in?
I think so.
I challenge that.
The Deputy's interruption is stupid.
Was not the inspector breaking the law when he asked for tea that he was not entitled to get?
He was not. The Deputy is raising a most irrelevant and ridiculous point. I am referring to an authorised officer of the Department of Supplies whose duty it is to detect offences of that kind. When he brings his case before the court the trader is convicted of that one offence, but everybody in the parish knows that the trader was only caught on one occasion but had, no doubt, been breaking the law on a number of occasions. It may be that in an isolated case there was only one offence, but, in the great majority of cases, everybody knows that the traders who are caught were not merely the unlucky ones, but had been continuously breaking the law before they were actually convicted of one offence.
It is for that reason that you require minimum penalties. A justice, dealing with the facts sworn before him, may be disposed to impose only a penalty related to the facts of that one case but our circumstances require that the penalties are such that a trader will understand the big risk he is taking on every occasion that he breaks the law, even when he thinks that he is not going to be detected. Deputies may give lip service to the efforts of the Department to try to suppress black marketing, but if they are in earnest about it they must realise that the penalties imposed by the courts must be a deterrent upon all those people who will never come before the courts but who are equally guilty with those who are detected and charged. Deputy Costello spoke about over-severe penalties bringing the law into disrespect. He has suggested that the penalties that will be imposed under Orders made by the Government providing for minimum penalties will be over-severe. The Deputy is talking something for granted.
You are proving it.
I am not. What penalty is over-severe for some of the offences for which people have been convicted?
Any penalty that is a minimum penalty and that is automatically imposed irrespective of the facts of the case is an over-severe penalty.
That is nonsense. The circumstances may be such that the minimum penalty would be unduly lenient in view of the facts of the case.
They may be otherwise.
If a person takes wheat required for human food and feeds it to animals, what penalty is severe enough for that? There were people doing that and at the same time there were queues standing outside bread shops unable to get supplies of bread. While that was happening people were feeding wheat to pigs. The gravity of that offence obviously depends on the circumstances at the time. It was a less grave offence when our bread supplies were reasonably adequate, when we had the prospect of being able to maintain an adequate flow of flour and bread to meet the requirements of the community. It became a much more serious offence during the time in which bread was scarce. It may become, in certain circumstances, a very serious offence indeed. A man may take a sieve in a small mill and pass the product of the mill through it in order to get white flour to sell on the black market. That is a serious offence. But when we find in one case a man who was actually operating what was tantamount to a factory for the manufacture of white flour, with a number of people employed producing white flour from a 100 per cent. product on mass-production methods, white flour which he sold in the black market as having been smuggled over the Border at an exorbitant price, a man who was probably making, judging from the scale of his operations, a profit of £200 or £300 per week, being charged before the district court and fined £3, was that penalty over-Severe? What penalty would be severe enough in these circumstances?
Death.
That is Deputy MacEoin's suggestion. We are not suggesting that in this Bill. When we come to deal with these Orders which are designed to secure an equitable distribution of available supplies at a reasonable price, we are up against the immense difficulties of enforcement. I ask the Dáil to try to appreciate that. These difficulties of enforcement are such that, unless we can secure that the penalties imposed by the courts are severe enough to deter people from taking the chance of not being detected in evading the regulations, our efforts to enforce them are certain to be inadequate. I do not know what brings the law into disrespect more than the impression created by newspaper reports that there is not in the minds of the justices a proper appreciation of the gravity of our position in respect of matters of supply or the disproportion of the penalties imposed by one justice and the penalties imposed by another in what appear to be similar circumstances. I have seen cases reported on the same day where, for a precisely similar offence committed apparently, in precisely similar circumstances, one justice imposed a penalty of £10, or £15, or £20 and the other justice imposed a penalty of 1/- or 2/6. Does that help to bring the law into disrespect?
If the circumstances were the same.
In so far as the newspaper reports revealed the circumstances, they were the same. I am dealing now with the reactions of these newspaper reports on the minds of the public. One advantage of providing for minimum penalties is that disparity between decisions of different justices in similar circumstances is removed and a uniformity is secured in the punishments inflicted for offences of this kind. Many of these Orders made by the Government controlling supplies are of vital importance to the country. It may be that the justices do not appreciate that fact. They may not have the knowledge which will enable them to appreciate fully the gravity of the offence committed by the individual charged before them. That knowledge may be only available to the Minister who made the Order or the members of the Dáil who discussed it here and may not be fully appreciated by the members of the public, much less by the justices of the district court.
It is in such cases that the Government should have power to indicate the importance which they attach to the regulations made and the necessity for securing obedience to these regulations by putting in the Order provision for a minimum penalty. If we are to get respect for these Orders fixing prices, it must become obvious to the public that offences against these Orders are regarded as a serious matter, and that the persons committing these offences will be severely punished. It is only in that way that you can secure that traders and others will avoid the risk of detection. We can no doubt improve our methods of enforcement. We can multiply the number of our inspectors. We can adopt various devices in order to secure that these inspectors will be more effective in detecting offences. But, unless we can get behind all these methods the general idea that these offences are serious ones, that those who commit them are enemies of the people and should be punished as such, that the risk of breaking these regulations is a great one and involves serious consequences for the perpetrators of the offences, then all our efforts to suppress black marketing will be inadequate.
Deputies cannot pretend to be in earnest in their support of the efforts of the Government to suppress black marketing unless they will deal in their criticism of this proposal of the Government with the points I have mentioned, namely, the difficulties of securing convictions in cases of offences against this Order, the knowledge that there are a number of offences that will never appear before the courts, the fact that, even where it is well known to the public that, individuals are breaking the law, those who have that knowledge will not swear to it in court, and the impossibility of preventing people being encouraged into committing breaches of the law themselves by newspaper reports which indicate that those who committed these offences were lightly treated when charged before the court.
The Taoiseach said that if we could ensure that every case of a breach of these regulations was brought to trial, that in every instance in which people overcharged for tea or cigarettes or something else, they appeared eventually before a district justice to answer to that charge, then this need for a minimum penalty, this need for severe penalties, would not exist. If we knew that every offence would be brought before a court, there would be no difficulty in allowing the district justice to assess the offence committed in the individual case and to determine the penalty accordingly.
It is because we know that every case will not come before the court, that only a minority of the cases will come before the court, that the penalties must be such as to ensure that the importance which the Government attach to the offence becomes clearly recognised. It is the very inability of the State to secure a certainty of enforcement that makes this other device necessary. That was so in times of peace in relation to revenue offences and other classes of offences. It is doubly so now in present conditions when these offences are much more numerous and their consequences to the community much more serious.
If the sound and fury we have just listened to means anything in the way of argument, then this whole case has suddenly changed. We are now concerned with the leniency of the district justices. The Minister asks us to see to it that the gentleman who is caught is fined for the 10 or the 12 who commit an offence and who are not caught. That is his case, and he asks whether the penalties are going to be over-severe. Any penalty fixed on that basis is bound to be over-severe. One man will be caught out of 20 offenders and we are going to build up the penalty in such a way that, having convicted the man who is caught, we will penalise him for the 19 who have escaped. Of all the nonsensical arguments that have been used in this House, the limit has been reached to-night. That is the Minister's contention.
He asks us to believe that it is amazingly difficult to get offenders. Will it be more difficult or less difficult to get them if there are minimum penalties? What does the minimum penalty do with the evidence that is procurable in court? Nothing except this, that people might, on the feeling that the district justice might temper justice with mercy, go to court in order to give evidence. I suggest they will be more reluctant to do so when they realise that there is a minimum penalty of £100 to be imposed no matter how technical is the offence. The Minister, in his effort to make a case, succeeded in displaying his own weakness. He will be in a position to salt the single man that he is able to get into court for the 19 or the 20 who have escaped. There is no logic or sanity or justice in that line of argument.
Apparently, the Government are taking as their ideal the Revenue Commissioners and their penalties. We have changed the law again and again, not merely to give the Revenue Commissioners higher penalties, but to make things easier for them. What is the result? Revenue offences were never more numerous, and smuggling was never more rampant. Although the law has been eased year by year in favour of the Revenue Commissioners, we find that the number of people trying to evade the revenue laws are more numerous than ever before. And that is the example that the Minister thought fit to give us.
The Minister was exceptionally vague in his remarks about the man who was running a business and who was engaged in some black marketing in flour. Where was that case heard? Who is the district justice who tried it? I should like to have some information with reference to that case, so that I may track it in the newspapers and learn a little more about it than I could gather from the few phrases the Minister hurled at us. I do not think what the Minister has told us represents the correct picture. The statement he made merely conveyed that a man was proved to be making an income of almost £200 a week and he was fined only £3. I want the name of the person involved in that case, the area in which this particular offence occurred, the time it occurred— some definite statement, so that I can track the case in the newspapers; that is, if it was ever reported. I do not remember any such case and I wonder has that case ever occurred, as the Minister stated it?
It is conveyed to us that purchasers and sellers are in a conspiracy. There are times when the only person who can go into court to give evidence is an officer of the Department. How is that situation going to be eased by the application of minimum penalties? The Minister is critical of the House in its attitude towards the black market. He almost insinuates that Deputies here are not in favour of stopping the activities of the black market. It is suggested that people do not realise as seriously as they should that certain articles are in short supply. Who is to blame for that? I suggest that the Minister is. What has he done to get the people better enlightened as to the shortage of supplies? The fact of the matter is that his Department is a joke in the eyes of the public. It is hardly possible to get any respect for the Department. It is not easy to get credence even for the statements of the Minister.
Deputy Costello asked a cogent question. Has the Minister ever told those appearing in court for him to make, on a particular case, a representation to a district justice of the gravity of dealing with an article in short supply? If he has, will he let us know what the district justice said, how he behaved on such an occasion, and whether his penalty was tempered with too great leniency? It is at such a time that the case should be made and not here, through vague generalities, about people and their attitude to the black market and this man with the £200 a week who was fined only £3.
The Minister must know that by the populace he is regarded as the father and the mother of the black market, the man who was the main cause of it, the man who authorised the system of rationing through retailers, the man who left people in such a way that they could not demand or be entitled to get certain supplies. Once yon create the impression that articles are in short supply and you leave people in trade to parcel out what they have amongst customers, there is a golden opportunity at once for a black market. That has been the Minister's conduct up to recently. Then he went in for rationing by the coupon system, and it is not worth while at this point to speak about the result of that. The Minister is, to a great extent, to blame for two things: firstly, for giving marvellous opportunities for back market rackets and, secondly, for not sufficiently educating the public as to what the dangers were and are. I do not think he has set out on any course in order to educate the public and, if he has, whatever little result his efforts might have got ordinarily have failed, because his Department was derided by the public at the time he set out to educate them.
We have been told now by the Minister that people were feeding wheat to animals at a time when people here were queueing up for bread. The Minister used to say they were not queueing up for bread—it was for hot bread. It is a good argument at this moment to say that a district justice was lenient in the imposition of a penalty with regard to bread when it was in short supply. The Minister now refers to the time when people were queueing up. We remember how vehemently he used to deny that that was the situation so far as this city was concerned.
There are certain points that have to be answered. We want to be told the answer to the question that Deputy Costello put here. What representations have been made in court, and what are the occasions upon which these representations were not treated with the respect that should have been given to them? Will the Taoiseach do this, with the number of cases he has in front of him—will he tell me that the leniency would be a matter that would affect district justices all over the country?
I get back to my original argument with regard to people with trained minds, asked to relate circumstances to an individual case and the pleas made in court. These people all over the country have apparently failed to realise the gravity of the situation, in the phrase of the Minister for Supplies. That being the situation all over the country, would the Taoiseach go one step further and say from the cases that he even has at his disposal or has heard of, what percentage of all the offences that the district justices tried would the lenient cases be, as I certainly think this House ought not to be asked to pass legislation of a minimum penalty type on, say, 2 or 3 per cent. of cases in which even what the Department calls leniency was shown in respect of these cases. In relation to agricultural matters, the Minister was talking about evidence. There were 341 cases here and in all but two cases convictions have been recorded, and one of the two cases in which a conviction has not been recorded is a case which has been adjourned and is still pending. In one case out of 341 there was a dismissal without prejudice. That is the case as far as the Minister is concerned. If the penalties are not sufficient for the Minister, the Minister has power to enter on lands. If the Minister has not exercised that power it is for some reason known to himself which he will probably now tell the House about. If he has not exercised it effectively to make these Orders better observed all over the country, he will tell us why he has not entered a great many more times.
Deputy Costello referred to one other matter that I refer to here in conclusion. He said that it is possible, and we have seen it happen, that some of the cases that have been spoken of have been brought before the Military Tribunal. One of the cases referred to is this case about coupons. These cases have since gone before the Military Tribunal. If the Government want to make a demonstration of what they think as to the gravity of a particular situation in respect of some commodity, it is easy for them to schedule a particular, offence as an offence under the Offences Against the State Act and thereupon there is still somebody to deal with it who is not a member of the Department of Agriculture or the Department of Supplies. There are these people who are attached to the Military Tribunal and they can deal with it. It is possible, it seems to me, a situation might arise which would call for such treatment as that—it is not that I am commending it at the present moment—but the fact that the Government has not sought to treat any shortage of any material in what way indicates that the case made here at the moment is a completely artificial one and no case here can possibly commend itself to this side of the House unless in respect of, say, one or two cases where it is alleged too great leniency was shown, we are told what were the extenuating circumstances expressed to the district justice and how he responded to those.
I think anybody listening to this debate would, perhaps, form the impression that there were no such things as minimum fines already in existence. I happen to have had to deal with offences where minimum fines are inflicted. These were fishery offences. I take it that the reason these minimum fines were brought in in the beginning, for poaching and so on, was that, as the Minister for Supplies pointed out, it is so hard to detect these particular crimes and so hard to get evidence that they are not caught very often, but when they are caught the penalty has to be severe. I think, although Deputy McGilligan appeared to think that it was a ridiculous argument, that the legislators who drew up that legislation very many years ago, which has stood the test ever since, must have had that fact in mind: you do not catch them very often, but when you do catch them they must suffer the penalty.
Deputies talked here of the undesirability of having a Minister responsible for leniency rather than a district justice or judge. In that particular case, the district justice very often inflicts the minimum penalty and at the same time makes a recommendation for mercy. That recommendation comes to the Minister for Justice and the Minister for Justice, in practice, asks for the observations of the Gárdaí in the district and of the Board of Conservators, and if he finds that there is a volume of opinion in favour of leniency he, after consulting me, the Minister concerned, is always inclined to be lenient in these particular cases.
Deputy McGilligan talked of the number of tillage cases brought and the number of convictions. That has nothing to do with the minimum fines, for or against. The fact that of the 341 cases already heard under last year's Order, the Department got convictions in 339 cases I think only proves that they had very good evidence that the offence was committed. If they had brought cases where there was doubt we must presume that some at least would have been, thrown out but, evidently, there was no doubt in these cases.
And some of them had shilling fines.
Yes, that is the trouble.
That is the trouble.
The fine was not sufficient. There is not very much use in bringing a man before the court for say, having a number of acres untilled under the Order when he is fined 1/-. We feel it would be better if we had not brought him to court at all because we feel that, naturally, the farmers all around, if they are opposed to tillage and if they believe that from their own economic point of view it would be better if they did not till, will say: "We can easily take the risk of not tilling if the fine is going to be 1/-." As I said, it would be better not to bring the case at all.
Could the Minister tell us about any facts in relation to any case in which a shilling fine was imposed?
No; I could not give exact details.
Could he give any vague particulars?
I can tell the Deputy that in all these cases that were brought there was no question of mitigation in one case very much more than another. One man would make the plea that he found it hard to get the tractor, the tractor did not come in time although he had agreed with the person who owned the tractor.
Might not that be a fair case?
Yes, it might, but very often it is not. Another man will make the case that he tried to hire a man but could not get the man. Another man will make the case that he tried to buy seed and could not get it. Every person brought before the court —I think the Deputies who practise in court must have this experience—will have some mitigating circumstances to put up in his own defence but which often are not true.
And they are often fined very heavily.
And it would not help me or the Deputy in any way to know what the person said in court in his own defence.
It would help if the Minister would tell us the case that was made and how the justice treated it.
But the Deputy asked for one thing—he said he would like to know, for instance, with regard to the percentage of cases in which there was leniency. I could give some idea with regard to the percentage of cases where I believe the penalty was in no way adequate. I will take this point first: the Deputy also asked whether these inadequate penalties, in our opinion, were general all over the country or only in particular districts. They were, to some extent, general all over the country but, on the other hand—there is no doubt about this— some district justices were invariably very much more severe than others. I remember reading in the paper that one particular district justice said that in every tillage case that came before him he would fine £5 per acre and, as far as I could follow that district justice afterwards, he carried that out.
And you can bring every case before him.
We will look into that point, too. I am taking a note of that. He is a district justice who evidently looked on the offence as being fairly serious. I do not think he was severe enough but he did look on it as fairly serious when he proposed to inflict a fine of £5 per acre on everybody who came before him. There is another district justice, and if all the cases that came before him were taken, his average fins was about half-a-crown an acre. His maximum fine did not exceed £1 an acre. Several cases came before each of these two district justices. It is not possible, surely, that there were mitigating circumstances always in the case of Justice B. and never mitigating, circumstances in the case of Justice A. So, when Deputies argue here that the district justice is there to look into mitigating circumstances, it does not hold in all cases, at least, and if this minimum penalty were inflicted, on the whole, I am quite sure you would have very much better justice than you have under the present system.
Deputy McGilligan wanted to get some idea of the percentage of inadequate fines. I do not know what Deputies would agree is inadequate in these tillage cases. I think anything under £1 per acre is inadequate but I will go very much lower. Take, for instance, under £1 an acre. Last year, out of 134 cases, there were 65 cases under £1, that is, almost half the number of cases.
I think that everybody will agree that if we are to try to have compulsory tillage at all, there is no use in a fine of anything under £1 because, if a farmer is opposed to tillage, and if he has to be forced to do it, he will certainly believe that it would pay him better to pay £1 per acre and not till at all. It is quite obvious, therefore, that a fine of under £1 an acre is inadequate in these tillage cases. The returns show that the number of cases in which fines of between £1 and £2 were inflicted was 23. Adding 65 and 23 together, we find that in a very high percentage of the total the fines imposed were under £2. That gives some indication of the answer to the question put by Deputy McGilligan as to the percentage of cases in which the fines would be regarded as inadequate.
I mentioned already that there were two district justices, one of whom made it a practice to fine £5 per acre and the other of whom made it a practice to fine in or about half-a-crown per acre. I have here a sheet of fines running from 1/- in one case—and that was not per acre—up to £100 in another case. Strange to say, I find that the very lowest fine of 1/- is for a default of 6¼ acres and the very highest fine of £100 is also for a default of 6¼ acres. Deputy McGilligan may say that perhaps there were mitigating circumstances.
He is bound to say so.
Does the Deputy seriously contend, if he is taking the matter seriously, that there could possibly be mitigating circumstances which would warrant a fine of only 1/- in one case while there was a fine of £100 in another case?
Certainly.
Why not?
I am assuming now that Deputies are taking the matter seriously. It is all right if you merely want to score debating points. I know that if Deputy Costello, Deputy McGilligan and Deputy Dillon wish to deal with the matter in that way, we could debate these points for hours and never finish on them, but if we are going to deal with the situation in a serious way, does anybody suggest that a district justice who fined one man 1/- for a default of 6¼ acres and another man £100 for a similar default was doing justice as between the two men?
On the facts.
On a debating point perhaps the Deputy may get away with that.
Tell us the facts on which the justice made his decision.
The facts were that both persons put up the case that they could not get the work done.
It was believed in one case.
No.
It must have been.
It appeared from the decision of the district justice that the tillage did not matter in one case and in the other case it was believed that it was a very serious matter. If the Deputy will look at it and try to study the performance of the district justice in each case, he will see that mitigating circumstances did not affect the decision. We have some district justices who take these cases very seriously, and we have other district justices who seem to think that the Order should never have been made.
What percentage was left untilled in each case?
There were 6¼ acres left untilled in each case.
What was the total amount that should have been tilled?
In the case of the man who was fined 1/- he should have tilled 6¼ acres and he did not till 6¼ acres. In the case of the man who was fined £100 he should have tilled 6½ acres but he tilled only a quarter acre.
There must have been mitigating circumstances. What were the facts?
The facts are as I told the Deputy, that in each case they said they could not get the work done.
They were only the representations, but what were the facts?
The facts, as believed by my inspector, were that they could have got the work done; otherwise he would not have brought the cases. If we are going to treat this as a matter of levity we can enter into a debate and have a bit of fun over it if you like, but if we are going to take the matter seriously, let us be told how we are going to deal with these cases. I have heard farmers, and I am sure other Deputies have heard them too, say that they would prefer to pay a penalty of £3, £4 or £5 per acre rather than break up their land.
I never heard it.
Perhaps the Deputy did not, but there are, other Deputies who heard it. I have heard farmers say that, but, nevertheless, they tilled because they thought it a national duty.
That is a slander on farmers.
Oh, no. I am only talking of 341 farmers out of a total of 250,000. I am not slandering the farmers generally by referring to the 341 defaulters. It is possible, Deputy McGilligan says, to bring all the cases before one district justice. I believe it is under the Act. Again I say to Deputy McGilligan, Deputy Costello and other Deputies if they want to make nice debating points, they can argue in that way. It is a nice point to make, but do those Deputies who argue with such vehemence that we are going to bring the law into contempt by this provision think that in these cases of compulsory tillage, if I direct every case to be brought to one particular place and tried by one particular justice, that that will not create any contempt for the law?
A Deputy
The legal expenses would be high.
And the particular district justice might not be so pleased if such action were taken and he might not perhaps deal with the cases as severely as I would like.
What about the other alternative?
What is that?
Not to bring them before a particular justice.
The Deputy means to avoid certain justices? That might be done I suppose, but still I think the proposal put up here is better on the whole. If I bring a particular case here and I tell all the circumstances, I am quite sure that Deputy McGilligan or Deputy Dillon would get up and say that there might be mitigating circumstances under some heads. No one could argue on these lines. It is not going to help us to solve the problem we are up against in dealing with these offences, whether black market or tillage offences. I have the right of entry, it is true, and I have a very large number of inspectors. Probably Deputies will say that there are too many inspectors but, even with all the inspectors I have, they could not possibly deal with more than 1 per cent.—in fact, they could not deal with 1 per cent.—by way of entry because they must inspect those farms at a particular time in order to enter. They must go back later and deal with each case and see that the whole thing is done in a proper legal fashion. A great number of cases will only be detected after the sowing season is over. If by any chance we fail to enter on a farm and if later on we find on inspection when the sowing season is over that the particular farmer has defaulted in his tillage, then we should have some way of inflicting a penalty. The only penalty we have, or that I can even think of, is a monetary penalty. Again, the monetary penalty must be substantial; it must be adequate.
But why must it be a minimum? Even if it be substantial and adequate, why must it be a minimum? That is the point.
It must be substantial and adequate. I have already said that certain district justices did not make them substantial or adequate, and, therefore, there must be a minimum. The Taoisoach said here already that the Government reluctantly came to bring in this measure. I was certainly one of those who were reluctant to bring it in, and if Deputy Costello or Deputy McGilligan can suggest to me a way of dealing with those particular cases in which I am interested, I will not mind adopting the suggestion. Even though it comes from a member of the Opposition, I should be very glad to adopt it if I could avoid this particular way of doing it. But the Deputies have made no suggestions.
Here are the suggestions that were offered: make representations in court through your counsel; re-enter the lands; schedule the offence under the Offences Against the State Act; take them before the Military Tribunal. There are four suggestions.
I have dealt with the case of entry.
I do not think you have.
I think any Deputy, if he is reasonable——
How many cases have you dealt with?
I say that the number of cases we can deal with——
No; the number of cases in which you are complaining of leniency is not more than 100.
The Deputy is making a very valiant effort to make me contradict myself in some way, but I cannot contradict myself because I have only spoken of what the case really is. We dealt with 341 cases before the courts, and there may be others that must come before the courts yet. I say that we cannot inspect all the cases, and we certainly could not inspect them at the particular time when you could enter. We may inspect cases when the time for entry is over. How are we going to deal with them then without an adequate penalty?
There may be an adequate penalty, but why a minimum penalty?
It is the only way, I suggest, to make the penalty adequate. The Opposition have not suggested anything else. They suggested to-day that there is nothing very serious about those things; that there might be mitigating circumstances; that a man might charge 8/- a pound for tea and might be justified in doing it; and, therefore, that there should be no minimum penalty imposed. Deputies asked whether we had tried to get the State solicitors to urge that those cases were serious. We did; through the proper quarters—Deputy Costello knows what those are—I had the State solicitor in each county instructed to go to the district justice and impress on him the gravity of the situation with regard to those tillage cases.
Openly?
Of course; in court. Where else? It was done in every case. Those State solicitors went before the district justices and pointed out that the position was very serious as far as food supplies were concerned, and that those who were defaulters under the tillage regulations should be severely dealt with. As I have said already, some district justices were impressed by that—not to the extent that I should like to see then impressed— but some of them were impressed; others refused to be impressed, and went on with the very inadequate fines of 1/- or 2/6 per acre.
I will conclude by stating again that, if some alternative can be suggested which will give us what we want in this case, that is, that certain district justices will not continue to inflict those very inadequate fines. I certainly will be prepared to consider it.
Listening to this discussion, it appeared to me that each speaker was looking at a different phase of the problem. Under those conditions, it is not surprising that we have not had any sort of agreement. The Minister for Agriculture has been complaining about the inadequate penalties in cases where the tillage Order has been evaded, and in fact he has mentioned that there are certain farmers who would pay a fine of so many pounds an acre rather than till those acres. I do not know whether that is true or not, but it seems to me that, even if there are such farmers, what the country wants is the food produced from those acres and not the imposition of fines. The Minister has complained that no alternative suggestions have been made. I should like to suggest one alternative, and that is that defaulters be required to till double the number of acres in respect of which they were in default.
But supposing they refuse to do that, too, what is the next step?
You could impose a very large suspensory fine, which would be done away with if they came forward the next year having tilled the required amount. I merely want to put that suggestion forward.
There was also another case in which I was rather interested, and that was the case mentioned by the Minister for Supplies, where a black-market mill was milling white flour, and the owner was supposed to be making a profit of a few hundred pounds per week. It was complained that in that case the district justice had merely imposed a fine of £3. I should like to ask whether there is not one trifling circumstance which the Minister has left out of account in that case, and perhaps the district justice took it into consideration as a mitigating circumstance. I take it that the mill owner had his mill taken from him as a result of being caught milling white flour? I take it that the mill was closed down, thus depriving him of his livelihood? If that was not done, there is certainly power to do it.
I think that the Government do not need dungeons if they can prevent offenders from earning their livelihood. In this case, I am assuming that the mill was closed down. Surely, it was represented to the district justice that this man had had his livelihood taken from him? I do not know how far that would have entered into the calculations, but certainly it shows that in some of those instances which have been brought before us it would have been better if we could have gone to the end of the road and seen whether there were any mitigating circumstances which might have been taken into account. I take it that, in this particular case, a very different story would have been presented on both sides. On the one side we have a miller who was making £300 a week in the black market, and who was fined £3, while on the other side it might be put forward that here was a man who had had his livelihood taken from him. Surely, that would be an adequate penalty. We have here to consider how far we ought to make the punishment fit the crime. In the old days, people were transported to the colonies for stealing a head of cabbage. That did not stop, the stealing of cabbages. It is not stopped even at the present time. But nobody would now suggest that people should be transported, even if we could transport them, for stealing cabbages.
They are transporting themselves.
They might transport themselves if they got warning that somebody in another country was looking for cabbages. Speaking as an ordinary individual, if one had to give evidence in a black-market case a certain effect would be produced if one felt that a savage penalty would be imposed. I take it that what the Taoiseach really wants is to educate the country into appreciating the gravity of the situation and realising that the punishment should fit the crime.
I listened with great interest to the arguments for and against this proposal. On the Second Reading of the Bill, I spoke against the proposal. I am still convinced that it is very objectionable from the point of view of every section of the community and, particularly, from the point of view of the agricultural community, I cannot see how it can be operated with equity and justice. The Taoiseach warned the House of the gravity and seriousness of the whole situation. Deputies appreciate the seriousness of the situation and are anxious to help in every possible way but, as pointed out by Deputies on this side, there is a responsibility on the House to secure that any enactment passed will ensure justice and equity to the individual. We feel that we cannot ensure that in the proposals now before us.
It appears to me that the measure is unduly interfering with the discretion of justices. If an individual is appointed to a judicial position, it must be presumed that he is fully qualified for that position and that he is fully trained as regards the imposition of penalties that will meet the gravity of offences charged before him. We cannot stand over the argument that there must be minimum penalties and that extenuating circumstances cannot be considered. I am particularly concerned with offences under the tillage Order. I fully appreciate that there must be a wide variation in the seriousness of offences. I have no sympathy with a man who deliberately refuses to comply with the Compulsory Tillage Order and who makes no effort whatever to do his quota of tillage. But a man who all but complies with the Order—say, a man who has to do 25 acres of tillage and who does 22 or 23 acres—may find this minimum penalty operated against him. It is quite on the cards that the man who deliberately refused to comply with the Order might be fined merely the same amount as the man who had gone very close to full compliance with the Order. From that point of view, the Bill is very objectionable. You are taking from the justice his right to exercise discretion and to exercise his legal training so as to fit the penalty to the offence. The case made by Deputy Costello should have impressed any Deputy. Where the minimum penalty is operated harshly, you will have the sympathy of the public, in general, with the individual who has been harshly treated. That is the danger I see. It is unjust and unfair that we should pass any such provision.
The Minister for Agriculture referred to the number of excuses put forward by farmers for non-compliance with the tillage Order—that they could not get tractors and that tractor owners promised to send them tractors to do the cultivation and failed to send them. I know a number of cases where that did occur. It occurred mainly in non-tillage districts, where equipment was scarce and difficult to procure. On several occasions here, I told the Minister for Agriculture that it was his responsibility to organise equipment in districts where equipment was difficult to procure. He has ignored that situation and it is now proposed in this Bill that he is to be the sole judge and arbiter of any mitigating circumstances. The mitigating circumstance may be that he himself has failed to make provision for equipment where provision ought to have been made by organised methods. Surely, the Taoiseach appreciates that there are many districts where little or no tillage was carried on in the past and where the amount of equipment available was not sufficient to carry out the tillage required by the Order. A number of men were harshly treated as a result of their failure to comply with the Order—men who found it impossible to obtain the necessary equipment and who received no assistance from the Department of Agriculture. I have said to the Minister for Agriculture that his inspectors should be in a position, where the farmer makes the excuse that he is unable to hire the necessary equipment to say that they will send equipment on the following Monday morning. The Minister's inspectors should be in that position. The Minister has never attempted to organise equipment behind them, so as to ensure that wherever equipment is lacking it will be sent there by the Department. The extraordinary paradox about the whole proposal is that the Minister has failed in that respect and now we are asked to make him the sole court of appeal, where an individual feels that there are mitigating circumstances which ought to be considered. He, and he alone, who has contributed to the failure, is to be the judge in such matters. That is altogether wrong and unfair; there would be no justice or equity in such a proposal.
I regret that Deputy Alfred Byrne is not here to-night, and also Deputy Dillon and Deputy Mulcahy, and a few others who were making all the noise here about the bread queues recently.
Long ago we told the Deputy where he would get wheat in the country.
There was talk about people in Dublin starving and deprived of food. The acting and levity of some people will not improve the situation, or get us out of our difficulties. Deputies have the first responsibility to see that there is sufficient food in the country for our people. There should be no tillage offences—there should be no occasion for them. Deputy Hughes tells us about the poor fellow who could not do his tillage in time. The inspector entered on those lands in March or April and the man had until September to plough them, if he wished to do so. He was not inclined to do it; he did not want to do it.
Speaking for a county where not 25 per cent. but at least 40 per cent. of the land is under tillage to-day, providing food for the people, I would like to protest here against the manner in which the tillage Order has been treated all over the country, and the manner in which individuals and areas have evaded it. Anyone travelling up here every week, by road or rail, as do Deputies from Cork, can see the way in which the tillage Order has been treated in certain counties—it is being ignored completely in some areas. The very Deputies who were shouting about the poor having no bread are the individuals who object now to a minimum fine being put on people who will not produce that food. I speak as a farmer and as much a representative of farmers as any other Deputy. Coming from a county where the farmers really do their duty, I have no sympathy whatever with the farmers who are not prepared to till their land.
I made a suggestion to the Minister some time ago—that there should be compulsory notification by the owners of land, on or before the 1st November each year, of their inability to carry out tillage operations. If, for any reason, a farmer thinks he will be unable to till his quota, he should be compelled to go to the local Gárda barracks and notify them, say in October of each year, that he cannot carry out his obligations. If there are such areas, as suggested by Deputy Hughes, the Minister would then be able to send down tillage equipment to those areas and have the land tilled. In the case of 6,000 acres, where last year 3,000 were tilled and the crop brought in was not 25 per cent. of a normal crop, the land was not entered on until April and May when grain crops could not be grown.
Apparently, there is any amount of supporters of the black market now on the opposite benches—even Deputy Dockrell. I have no doubt it is a good investment. We had Deputy O'Donovan and Deputy Tadhg Murphy here the other day, and other Deputies from West Cork, complaining about the scarcity of flour in West Cork and the difficulties in regard to sugar and tea there. Yet we see a case where 40 tons of sugar were taken out of West Cork Creamery and sent up to Sligo to go over the Border. That was 40 tons of sugar from the poor of West Cork, to go over the Border in exchange for luxury white flour and tea for the aristocracy. They say that poor fellow should not be fined, as his business is gone from him. No doubt it was a lucrative business: I suppose it would pay 100 per cent. on capital invested— far better than any National Loan. Those who invest in a risky business like that must be prepared to pay the piper.
I agree with some Deputies over there who stated that the ordinary court is not the place for those gentlemen. Those who take 40 tons of sugar from the poor in West Cork and send it up for the Orangemen, who can afford to pay £100 a ton for it, should be tried before a military court and the penalty, as Deputy MacEoin said a few moments ago, should be the bullet. That is the only way to end that kind of game. The situation is too serious to have lawyers quibbling over the penalties to be imposed, and objecting to a minimum penalty.
The farmers are prepared to do their duty, and the majority of them are doing it. If there are farmers who think they have the legal fraternity of this House behind them in evading that duty, and that they can get cheap law and cheap defences if they go to the court, I would not blame them at all for trying to evade the Order. I do not think a fine is sufficient in a black-market case. There is only one way of stopping black-market operations and that is the imposition of a jail sentence. I would impose a jail sentence without the option of a fine, or together with a fine, in every black-market case. It is the only way to stop it. The profit which the gentleman who bought that sugar at the controlled price and was selling it over the Border at £140 a ton—that was the statement made in court—was making was such that he was not going to be stopped by a £5 or £10 fine. The position at present is that a poor workman who wants to cycle to his work and has no tyre for his bicycle has to pay 30/- or 35/- for a 4/6 tyre, in order that the capitalists of this country might have a safe home investment for their capital.
There is none to be got unless you buy in the black market.
That is what is wrong with Deputies and evidently what has influenced the Front Bench opposite in making such an anxious defence of the black marketeer, of those who refused to produce bread for our people and to produce oatmeal for our people. Deputies are afraid they will lose their job of demanding from the Minister for Supplies the reasons for the long queue in such a street last month, of people waiting for bread which they could not get. What can be the defence of a farmer for not putting at least the minimum acreage under tillage this year? He has a choice of grain. If his land is unable to grow wheat, he can grow barley or oats and I can see no defence for him—and I speak here as a farmer—and I am not prepared to allow him any defence, either. We had Deputies shouting a month ago about bread queues in the streets of Dublin, and now coming in here to defend those who caused these bread queues in the first instance— the people who were not prepared to till their quota of land to provide food for the people. There is only one cure for it, that is, to insist that in all cases not alone will a minimum fine be imposed but a jail penalty as well.
Deputy Corry says he speaks as a farmer, but he is a privileged farmer. He is in such a position that he was able to boast of having so much artificial manure last year, and that he got the contract for sowing beet seed last year.
Because other Deputies were too lazy to do it.
He might not shout about the farmers of Cork doing their bit. What can the majority of them do with their land but till it? It is fit for nothing else. He speaks about bread queues, but were it not for the British Government we would not have bread to-day. It was not the farmers of Cork who provided it; it was the British Government. There is no secret or hiding of that. The farmers of Cork would not have given it to the people. Deputy Corry knows nothing about the farmers of the midlands, who are in a different position.
The Deputy means the graziers.
Whatever you like to call them.
I went up to Westmeath and converted many of them.
Only for the graziers we would have very little bread to-day. You people have your land wheat-sick and unable to grow anything at present. It grows nothing but pressach and charlock, but we in the midlands are the people who will stand by you because our land is not wheat-sick, and the farmers there should not be treated as they are being treated by this proposal of a minimum fine. These people stood by the Government when they asked them and speeches like that of Deputy Corry are a shame and a disgrace to the Party to which he belongs.
Arising out of the observations of the Minister for Supplies and the Minister for Agriculture, it appears to me that both these Ministers have confused in their statements the difficulty of detecting black marketeers and the necessity for getting adequate fines. There is no relation whatever between the complaint made by the Government that district justices are not imposing fines adequate to meet the gravity of the situation and the difficulty of securing evidence against people who are engaged in black marketing. The Minister for Agriculture contrasted the actions of two district justices, one of whom imposes a fine of 2/6 an acre and the other of whom has announced in advance that in every case, no matter what the facts are, he will impose a fine of £5 an acre. I give my compliments to the half-crown district justice, and I say that the other district justice who has announced in advance what he is going to do, irrespective of the facts or merits of the case, is not dealing out justice.
I have ascertained who the justice is to whom the Minister referred and, when the facts are known, the compliments which I hand out to the half-crown district justice will be found to be well justified. What has happened here is that the Government have taken a list and have seen on it fines ranging from £100 to 1/- and, without knowing what the facts are, they have drawn deductions from them. If the Taoiseach and members of his Government got a list of the convictions and sentences from Green Street, they would find sentences ranging from 15 years' imprisonment to the application of the Probation of Offenders Act, and, if they draw conclusions from that, they will draw the same conclusion, that is, that the Circuit and High Court judges are not doing their duty either. The same conclusion is drawn from the same premises. With reference to the so-called half-crown district justice, he is a justice who has caused the Acts and Orders properly to be administered in his county, and the results of his operations have been that not merely has there been no necessity to impose fines, but in every respect the Orders have been carried out and more tillage has been secured as a result of his method of dealing with prosecutions than any minimum or maximum penalty the Government can devise would secure.
I suppose there is no use in arguing this any further.
There are a few more things to be said.
Is it possible that you propose to argue it still further?
There is only half a minute left. Would the Taoiseach before to-morrow investigate whether what Deputy Costello has said is a fact, that the district justice in respect of whom allegations were made to-night has in fact secured better compliance with the tillage Order than any other justice?
That may be, but it would not help us very much. I was quite frank with the House when I said that it was on general evidence that I had to act.
Use the phrase: "prima facie case”. The Taoiseach just baulked at using the phrase for the third time.
I will make the Deputy a present of it. "On the surface" is what I take a prima facie case to be. I cannot investigate each one of these cases and I have not said I could. I have a list before me. It is an extensive list, and, on looking at it, I am satisfied that, in general terms, the position is as I have stated. There may be exceptional cases and mitigating circumstances, and I can see only one way to meet them if this Bill is to pass, that is, an appeal to the Minister for Justice and an examination of whether there is sufficient mitigation to warrant a reduction. Taking cases from this list at random, I find, for instance, that where a person's quota was 45 acres, 16 acres were tilled, there being default in respect of 29 acres and the fine imposed is £5. I do not think that a fine of £5 on a person who has failed to till 29 acres, when he was able to till 16 acres, will act as a deterrent.
Suppose he eventually tills the 29 acres?
I will admit all these things which can be imagined, but we have to try to deter people from breaking the law and to ensure compliance. That is the whole purpose of it. I find further on this list that, where 8 acres were to be tilled, a quarter acre was tilled, leaving 7¾ acres untilled, and the Probation of Offenders Act was applied. Other cases are: 6½ acres to be tilled: 1¼ acres tilled—5¼ acres untilled and the Probation of Offenders Act applied; 9 acres to be tilled: 5 acres tilled—4 acres untilled and a fine of 10/- with 14/- costs; 3 acres to be tilled: nil tilled—3 acres untilled and a fine of 10/-; 15 acres to be tilled: 7 acres tilled—8 acres untilled and a fine of 10/-, with 2/- costs; and so on.
I move to report progress.