Dáil Éireann debate -
Tuesday, 14 Jul 1942

Vol. 88 No. 5

Committee on Finance. - Emergency Powers (Continuance and Amendment) Bill, 1942—Report and Fifth Stages.

Mr. Cosgrave

I move amendment No. 1:—

In page 4, line 36, at the end of Section 8 to add a new paragraph as follows:—

(d) by the insertion after sub-section (8) of the following sub-section that is to say:—

(9) Whenever a person is convicted of an offence in respect of which any Order, made by virtue of sub-section (6) (A), is in force at the time the offence is committed and is awarded punishment either by way of fine, imprisonment or fine and imprisonment under or in accordance with such Order and such person appeals to the Circuit Court the judge of the Circuit Court on the hearing of such appeal may, though affirming such conviction, if satisfied that by reason of the trivial nature of the offence or by reason of extenuating circumstances such punishment should be remitted, varied or reduced, remit, vary in any way or reduce to any degree such punishment and generally make such order as may be necessary for the purpose of doing justice in the case before the court and shall in every case in which the fine or imprisonment is reduced below the minimum specified state in the order of the court the extenuating circumstances or the circumstances which reduce the offence to one of a trivial nature.

On the Committee Stage of this measure, if not on the Second Reading, mention was made of the consideration by a Minister of State of the sentence that would be imposed on a person under this section. It is an unusual section in many respects. In the first place, it gives power to the Government to make an Order, whenever and so often as they think fit, fixing what is called a minimum penalty in respect of particular offences.

To fix a penalty, described as a minimum penalty, is really to fix a maximum penalty, because the discretion is taken from the court. A penalty of not less than a specified amount must, on conviction, be imposed. All the court has to do is to fix the penalty in accordance with the Order made by the Executive. That being the situation, this amendment proposes that there should be an appeal to the Circuit Court. An appeal of this nature is not without precedent. In a previous statute to correct certain abuses, a very severe penalty was provided. But the statute gave authority to the district justice to exercise his discretion as to whether the case was serious or trivial. If the justice considered that it was a serious matter, the person convicted had a right of appeal to the Circuit Court. Alternatively, if counsel for the State or the Attorney-General considered that it was not a trivial case, and the justice had decided to the contrary, it was open to the State to appeal to the Circuit Court.

The advantage of this amendment is that it keeps the administration of justice within the ambit of the court. A person is tried in open court; he is convicted in open court; he appeals from that decision to another court and the case is there tried in open court again. Compare that situation, which this amendment seeks to establish, with the situation in which appeal is made to the Minister. The Minister does not sit in court; he may, or may not, hear evidence; he may remit, or decline to remit, the penalty and he need give no reason for any action he takes. That is an undesirable situation. It is quite true that the Executive has power to review the sentences of the courts, but it is not desirable or advisable that they should indulge in that function. If they do, it leaves the charge open that, if a person has influence, he may exercise it in this regard. It is very undesirable that that should be the keynote of our legislation.

So far as this measure is concerned and so far as the objects which it is designed to ensure are concerned, it is very desirable that prosecutions should take place in open court. It is still more desirable that any remission, arising out of a reconsideration of these cases, should be the result of proceedings in open court. There is no reason why it should not. There is every reason why it should. Any Minister of State has quite sufficient work to do without reviewing or reconsidering cases previously considered by the court. There may be an exception to that. Additional evidence may, for example, be forthcoming but it would be a sad thing if an impression were to get currency in the country that, no matter what the decision of a court might be, it would be possible to have that decision varied and convictions, perhaps, remitted by Ministers. One of the first things that will happen as a result of declining to permit the courts to consider the penalties in those cases will be that people will get it into their minds that it will not matter what may happen in the courts if one has sufficient influence to have the case reconsidered in the Ministerial chamber. That would be highly undesirable.

Deputy McGilligan sought to get some material on which to base a case for this amendment and he gave notice of a series of questions which would enable him to appraise the events of the past few years so far as these cases are concerned. To our mind, this is a very serious break with the ordinary, established administration of the law. It is no excuse for the Government to say that they are really determined to wipe out black marketing. One has only got to inquire from any citizen outside as to what his experience has been and what his knowledge is of black marketing to get the answer to that statement. One has only got to look at the reports of prosecutions in the newspapers to see how negligible their number has been in this connection. A Minister, in the course of his statement on this measure, said he did not expect that there would be one prosecution out of 20 offences. In other words, 19 persons out of 20 would have a full fling in connection with black marketing. I venture to say that the Minister would have been much more correct if he had referred to one prosecution in a thousand. That would be more in keeping with the view outside. So far as the putting down of black marketing is concerned, no body is more anxious that that should be done than the Party on these benches is.

We are not satisfied that it will be accomplished by this method and we have said so. Here we have simply increased the penalty. When the penalty was small there was an easy method of effecting a prosecution and securing conviction. It is said that it has absolutely failed. If a minimum price of £100 is to be the minimum penalty, is it likely that the number of prosecutions will increase? Will that stop the black marketing?

One of the ways I suggest for dealing with a matter of this sort is to satisfy all the people of the country that the administration of the law is above reproach, that the courts are open to everybody for fair consideration of every man's case, that political influence or influence of any other sort or kind does not operate and will not be allowed to operate in the courts, that the matter is considered and decided on the evidence before the court and that there is no such thing as a star chamber. They must be assured that consideration of a claim against a man, or of a man's appeal, is held in open court with the fullest possible publicity, and that there is fair play and justice for everybody. It is in these circumstances that we have put down this motion, which we hope would mitigate to some extent the unfortunate tendency disclosed in this new section. What would be, to our minds, a very serious abuse of power would be corrected. The administration of law and of justice should take place in the courts, and this House should be against any star chamber consideration of appeals or remissions, or anything of that kind.

The Taoiseach

I do not think there is any half-way house possible in this case. As I pointed out on the last day, the idea of introducing minimum penalties was accepted by the Government only after the fullest possible consideration. The fullest weight was given to all the considerations that have been mentioned here since the Bill was introduced. We must do our utmost to safeguard the community in the present emergency. As I have pointed out, if justices give an indication of the public appreciation of the gravity of offences by imposing penalties which appear—on the surface at any rate, having regard to the seriousness of the situation—as trifling penalties, there is no use in our trying to impress the public with the seriousness of the offence, and there is no hope that, by public opinion, we will deter those who want to make money out of the present situation. The idea of making it possible for the Government to prescribe, by Order, minimum penalties in certain cases is considered helpful, in the opinion of the Ministers responsible—whether it be the Minister for Supplies, in regard to black marketing, or the Minister for Agriculture, in regard to agriculture.

The first idea of which we must disabuse ourselves is the false notion that we are prescribing here a definite minimum fine of £100 in all cases. We are not doing anything of the kind. We are making it possible to have the Government make, by Order, a suitable minimum penalty relating to the offence, in such cases as they think it advisable to prescribe such a minimum fine. We are saying that, no matter how grave an offence and no matter how they may be disposed to increase the minimum penalty, they cannot go beyond £100. That is one thing we must be clear about. They may consider that the offence is one in which the minimum might be much less—we do not know at this particular stage; they have to decide that—and all we say is that they cannot go beyond £100. I do not think it is necessary to go into the whole merits of this matter, as we debated them already on the Second Stage of the Bill to a certain extent, and still more on the Committee Stage.

The point in this particular amendment is to introduce the Circuit Court as a court of appeal. The example of certain licensing provisions has been quoted, but if we go back to find out how that has worked, we find that, as far as the State taking the appeal is concerned, it was absolutely a dead letter. This is one of those examples where you must have the whole or none at all. You must have the minimum fine prescribed and it must be the duty of the court to find whether or not the offence was committed, with no option to go below the minimum prescribed, but with permission to go well above the minimum if the case is sufficiently serious. When the minimum is fixed, as it will be for some cases, and where it appears that the minimum is far less than should be awarded for the crime committed, I hope the court will not hesitate to go well above the penalty. I hope that the suggestion that the minimum would be the maximum will prove to be absolutely unfounded.

In a time of crisis like this, the safeguarding of the community as a whole is a task which has to be appreciated by the Government, and they will, by fixing the minimum, indicate their opinion of the least punishment that should be given for a definite class of offences. If there are cases which deserve far greater penalties, I hope that the justices will go up to the maximum prescribed by legislation. We feel that this is a matter for appreciation by the Government, and that we cannot leave it to justices—whether district justices or Circuit Court judges —to express their appreciation of the public need and public danger. As I have said several times—and this is one of the arguments, of course, against the Bill—if there should happen to be an occasional case in which there are such extenuating circumstances as would, in fact, justify a mitigation or diminution of the fine, it will have to be dealt with in the usual way in which such cases are dealt with. The recommendation for mitigation will go to the Department of Justice.

I do not at all see this crop of appeals coming forward, because if, notwithstanding the publicity there has been about the black market, there are people who are found guilty of overcharging, or otherwise using this time of emergency for their own private advantage, I hope the Minister for Justice will be particularly severe, and will not reduce the penalties, unless he is absolutely convinced that the circumstances of the case were such as to involve a grave injustice, if the penalty were not reduced. When speaking about grave injustice, we must remember that, on the one hand, it is the community who must be protected, and, on the other, the individual who, as a member of the community, ought to make it his business, in a time like this, to co-operate in the general interest. If, either through negligence or otherwise, he does not do so, the needs of the community are to be put above his particular interest.

I admit that there may be occasional cases of grave hardship—although I think they will be very few—and I do not know that you could even speak of injustice in such cases. It is a very nice point as to whether, when the interest of the community as a whole has to be safeguarded, if a certain hardship, not intended or designed by the community, but which is incidental to the measures which the community must take to safeguard itself, arises in relation to a particular individual, you can speak of injustice, but I will say that, if there is a hardship which those responsible, the Legislature, would, on consideration of a particular case, think too great, the only representative of the Legislature left in such a case is the Minister for Justice, because we would undoubtedly fall between two stools otherwise. We would have, in respect of cases in which big money was being made, all the expense and delay of appeals, and, finally, we would have a position in which the public need was to be estimated by a judge, rather than by those who have the responsibility for estimating that public need, namely, in the present circumstances, the Government.

It is, of course, a purely emergency measure. I think that, in the ordinary law, there are a few precedents for this type of proceeding. I have said that we are not at all anxious to have it, but the position in relation to the public need is such that we think the possibility of the few cases of hardship, which, in the long run, can be dealt with by way of mitigation by the Minister for Justice, ought not to be held sufficient completely to deter us from this line of action. I am sorry that I must oppose the amendment.

General Mulcahy

This is a case of the Government, in very difficult circumstances in which not only the assistance of everybody but the intelligent outlook of everybody in the country is required to carry on, to get us through our difficulties and to deal with any objectionable practices that prevail, in which the strength and intelligence of the people as a whole are required to settle the matters complained of here, carrying instead of realising that fact, into this particular realm that which has been wrong with them all along: they have no confidence in anybody in the country to do anything. There is no confidence in the judges or justices to estimate the gravity of a particular offence, or its reactions on general public policy. Deputy Costello, on the Committee Stage, dealt very fully with the objection to the new principle of the Bill, that is, the principle of minimum penalties, and I do not want to discuss that matter further in view of the downright statement of the Taoiseach.

The Taoiseach, however, did say that the appeal in this matter would be to the Minister for Justice. I should like to know if that is so. There are very many matters affecting various Departments which are likely to be covered by this, and is it a fact that the Minister for Justice will be the person who will sit as judge of these cases in which there is an appeal, who will examine the facts and consider any mitigating circumstances, or will the Minister for Agriculture deal with matters affecting agriculture and the Minister for Supplies with supplies? Is it the position that the Minister for Justice, before coming to a decision, will have to refer these cases to the Government to get the Government's view? Is this a matter in which the Government, not trusting anybody to do his own work, will also not trust the Minister for Justice to do his? Will these cases be considered from the point of view of justice and the particular cases, or will the Minister for Justice, in his examination of these matters, be subject to the opinion and the direction of the Government, or of any particular Minister, such as the Minister for Agriculture or the Minister for Supplies?

Mr. Bennett

Deputy Mulcahy has suggested that there is not a Deputy of any Party who would not be behind the Government, in the particular circumstances prevailing, in ensuring that the people generally will have a sufficiency, so far as it can be provided, of food, in ensuring the provision of as many of the essentials of daily life as can be provided and the proper distribution of these essentials. Every Deputy will go that distance and will make every effort to support the Government in that respect, but this section we seek to amend is obnoxious to a great many people, and from the speeches of the Taoiseach, I think he is not greatly enamoured of it. Some of us have suggested that it is not essential that the powers of considering extenuating circumstances should be taken away from the justices and, looking at it in another light, it is not at all good for the country that we should set up a principle here that under any circumstances the justices should be limited in their discretion or jurisdiction. That is the main objection which some of us have to this section. The amendment is an attempt to mitigate the evils we see in the section and an attempt to provide, if we cannot get our own way and have the section deleted, that matters in dispute shall be submitted to another set of judges to decide whether the justice, in the first instance, was right in considering extenuating circumstances when deciding on the penalty. I think it right that there should be some arbiter other than a Minister in that respect, and it is on that ground the amendment is put forward.

The Taoiseach

Deputy Mulcahy asked whether the Minister for Justice is to be the Minister to decide such appeals as may come in. In law he is, but naturally, in coming to a decision in cases such as this, he would want to get as much information as he could before coming to a decision, and naturally would communicate with the Minister in charge of the particular Department affected. If it affected the Department of Supplies he would get in touch with the Minister for Supplies to find out what he had to say. It would be the same if the Department of Agriculture were affected. On the other hand, there is full and complete responsibility on the Government for policy as a whole. You could not carry on as a Government, if there were violent conflict between two Departments, without having some method of adjusting and settling it. I do not think anything like that will arise, but if there were very definite and rather strong differences of view between two Departments—although the Minister for Justice is responsible—and the situation developed to such an extent that it interfered with the general harmony that should exist amongst members of the Government, then it would have to be settled in the way in which these things ordinarily are settled.

There is a variety of ways by which differences of that sort are adjusted. Sometimes the head of the Government might be brought in with a view to adjusting the differences and, at other times, if he were not able to do that, then it might be a question of having the matter definitely decided by the Government. That is assuming that things were going to get into a very bad position indeed. The responsibility is with the Minister for Justice, and where any case occurs, he will have, so to speak, to exercise his judgment by getting all the facts and satisfying himself that in the particular case in question the mitigating circumstances would justify him in running counter to the general view that had been expressed either by Supplies or some other Department, in regard to fixing a definite minimum fine for a definite offence. I should add that if he had representations from justices he would naturally take these into account.

Amendment put and declared lost.

The Taoiseach

I move amendment No. 2:—

In page 4, Section 9 (1), to delete paragraph (b), lines 44 and 45, and substitute the following paragraph:—

"(b) the said act remains, after the date of such conviction, unperformed by him,";

The House will remember that on the last occasion Deputy Costello drew attention to the fact that the word "default" might be interpreted as meaning two things. The point is that a date or a prescribed period is one thing, and that there is an act to be performed before that date. There are two things, the date and the act. In the Deputy's view "default" might cover not only the date but the act, or it might cover both. That was not the view taken by those who drafted the measure. It is a question whether that view is right or not. We are in the position now that we can remove the doubt. I am grateful to the Deputy who raised it in that particular way. It escaped my personal notice, but I think it is desirable, if there is any possibility of doubt, even though it might be held by the Department that the courts would hold in only one way, that we take the opportunity to put all doubts at rest, and it is for that purpose I have introduced the amendment to separate the act which is to be performed from the date. If it remains unfulfilled there will be a continuing offence.

Amendment agreed to.

The Taoiseach

I move amendment No. 3:—

In page 4, Section 9 (1), line 49, to delete the words "the default continues" and substitute the words "the said act remains unperformed by him".

This is consequential.

Amendment agreed to.

Question—"That the Bill be received for final consideration"—put and agreed to.

Question proposed: "That the Bill do now pass."

General Mulcahy

From the remarks of the Taoiseach with regard to the position that the Minister for Justice holds now, I think we might leave the Minister for Justice out. Apparently decisions are going to be taken on questions of policy and not so much on questions of justice. It only shows the position we are likely to get in a measure like this, and we must let time show exactly what that position will be. I want to draw attention to a very remarkable use of the Emergency Powers Act that has just taken place, in order to ask how far the use of that Act is likely to go in this direction. Emergency Powers Order No. 194, dated July 7th, provides that:

"It shall not be lawful for any person by legal proceedings (whether instituted before or after the making of this Order) in any court or by any other means (a) to enforce or attempt to enforce any contract to which this Order applies, or to recover or attempt to recover damages for any breach or alleged breach by Irish Steel, Limited, of any such contract, etc."

The effect of the Order is that no action can be taken against Irish Steel, Limited, for any arrears of salary, any arrears of fees, or any arrears of commission of any kind that may be due by Irish Steel, Limited, nor will it be possible for anybody with whom Irish Steel, Limited, has broken a contract to take any legal proceedings either to get a contract carried out or to recover any money due under a contract, or to recover any money that may be due as a result of any debentures or debenture stock which they held, and generally that Irish Steel, Limited, shall not be brought into court on any matter connected with any contract or anything they owe. A number of things have injured credit in this country, but that does not come under the Emergency Powers Bill and cannot, I suppose, be referred to now. Is there anything more likely to injure credit with regard to industrial or commercial concerns than to have the Government utilising the Emergency Powers Act to step in in the case of people who either have debentures, fees or salaries owing to them, or who have contracts of any form, and to find themselves prevented suddenly from getting their rights.

The argument may be that this is a very important concern and that the security of the people as a whole has to be guarded. Surely it is likely, even during the emergency, that industries of one kind or another will be looking for credit, and will have to get credit if they are to carry on, and if the security of the people in other directions is to be made certain. What likelihood is there of people readily investing money which is likely to be affected in this particular way when the more important the industry is the more likely is it that the Government will take such an interest in it as to come into the picture in this way? This is a most remarkable and a most unanticipated use of the Emergency Powers Order, apart altogether from the machinery used.

I think we ought to have some kind of an explanation of why this Order is used, and that we ought to have some kind of an idea as to whether this is a type of thing which the Government feel that they are likely to have to use in any other cases, because, if so, then this should not be slipped out as one of the many hundreds of emergency and sub-emergency Orders that are finding their way into our hands and that may or may not be read. I think that the Order is a very remarkable one and that it is proper to call attention to it here and ask for an explanation of it and a comment as to what it implies in regard to Government policy or Government action.

Mr. Dockrell

I should like to add my voice in protest against this Order. Years ago, in industrial life, when a company came out they floated ordinary shares and preference shares, and then, if they got into difficulties, they floated a debenture and that was very often considered sharp practice by some of the people who held ordinary and preference stock; but one of the things which a debenture, in return for a very low rate of interest, had to recommend it was its absolute security. Are the Government going to come along and add another step to that scale and do away with the security of the debenture holders? One of the securities of the debenture holders is, or was, that the whole concern could be sold up in the debenture holders' interest. That might seem to be a very harsh way of doing business, but it was part of the debenture security and bond. I should like to ask the Taoiseach, what are the extraordinary circumstances in this case which prevent the debenture holders being allowed to take any remedy that they think they may have in their hands? Let us say that it is the case of an ordinary commercial concern which has got into difficulties. If the law were allowed to take its ordinary course, the concern, probably, would be sold up by the debenture holders and purchased by somebody at market value. Why can not the Government do that in this case and have a proper arrangement? Why should something extraordinary and outside the ordinary course of the law take place? It is a most undesirable precedent. Mind you, expressed in its simplest form, it is cheating the previous debenture holders of something which they possessed or thought that they possessed. I should like to put that aspect before the Taoiseach.

Now, in this Order they say that by this provision—whether you call it a moratorium or whatever you like to call it—the debenture holders will not be allowed to exercise their rights. It is put down in this Order that this will not take place with any subsequent issues of debentures. How far are the ordinary public going to rely on that? Expressed in its simplest form again, it means: "I cheated you once but I will not cheat you again if you put up the money a second time." I should like to suggest to the Taoiseach that this is a horrible practice. Mind you, I could understand that, in the case of an emergency, the interests of the debenture holders might have to be swept aside. If the interests of the country suggested that they should be swept aside. I would certainly be prepared to recommend it, but this is merely a case of taking their money from them and then preventing them from realising any more. I wish to add my protest in regard to this matter. It seems to me to smack very much of the emergency powers, referred to earlier, in connection with an individual who may commit an offence for which, by the time he is tried, there may be quite a different penalty. Now, apparently, capital is brought under the same principle: that the money is put up on one understanding, and then, before the finish, quite another set of circumstances have arisen. I wish to protest in the strongest possible terms against such a practice.

The Taoiseach

I have difficulty in dealing with this matter as I have not a copy of the actual Order before me.

General Mulcahy

I have a copy here, and shall be glad to give it to the Taoiseach.

The Taoiseach

I suppose that, probably, the Deputy feels that, as the Dáil will be adjourning soon, he might not have the opportunity of dealing with this in the ordinary way.

General Mulcahy

If necessary, we could move to annual the Order.

The Taoiseach

Yes, that would be the natural way to have this matter discussed.

General Mulcahy

Is it not the natural thing to raise it on the Fifth Stage of the Bill?

The Taoiseach

It hardly is.

General Mulcahy

Surely, it is.

The Taoiseach

I am not protesting against the ruling of the Chair in that connection, but I do say that this is a matter of very great detail. I know that the question of getting a steel mill going for the production of steel in this country has occupied the attention of successive Ministers for Industry and Commerce. I think it was actually when the present Minister for Supplies was formerly Minister for Industry and Commerce that it was occupying his attention. Then, when the present Minister for Local Government was Minister for Industry and Commerce it occupied his time, and finally it has occupied the time of the present Minister for Industry and Commerce. The importance of getting steel produced in this country is clear to everybody. There was a mill that was in a position to supply a certain amount of steel, and it was desirable that the public interest should be served by getting that mill going. There was a lot of detail in connection with the affairs of the company, and so on, which needed very careful examination, and the successive Ministers were trying to get some way in which they could get this disentangled.

Finally, with regard to a trade loan, it was essential that a trade loan would, in fact, be used for getting the mill going and not for some other purpose. It is in order to protect public money that this particular Order has been made. It would take a considerable time to deal with this particular case and to put all the facts before the House. I do not want to deal partially with it. If the matter came up on an annulment motion the House would have a full opportunity of hearing what the Minister had to say, and I have not the slightest doubt that when Deputies had heard him they would be satisfied that the measures which he has taken through this Order were necessary. I do not feel that, at this stage, I should go into the matter. I would require a certain amount of notice to get all the details. If the matter were to be debated properly, and if all the details were to be presented to the House, you would need, I think, to have that done by way of a motion.

General Mulcahy

I think we will have to put a motion down because the implications of the matter are so important.

The Taoiseach

Every Deputy, of course, has the right to do that. I am not making any complaint against that. The only thing is that I am not in a position to deal with it in a detailed way. I have not all the facts at my fingers' ends, and on a matter of this kind I do not want to depend on my memory.

General Mulcahy

I did not expect the Taoiseach to deal with it in detail, but I did feel that the matter should be mentioned on the Fifth Stage of this Bill.

The Taoiseach

I take it that the Deputy just wants to give notice of his disagreement with the Order.

General Mulcahy

With the whole principle.

The Taoiseach

In this case you had the task of getting the mill going. You also had to protect public money. You had a company that was in liquidation. I think there was a receiver in charge and there were various debtors. There was also a good deal of negotiation. For the reasons I have already given I am not in a position to say how far this represents a certain amount of negotiation and the natural desire to protect public money. If the whole case were debated numbers of people who might, at first sight, rather object to what was done, might find later that they did not feel that way at all. I admit that sometimes in a particular case you may have to do something which, if you were to generalise, would be highly objectionable. I think I will have to leave the matter at that. The House would not learn more from me than it has already learned, unless we were to adjourn the debate and get all the facts put in order so that I would have an opportunity of refreshing my memory.

General Mulcahy

It would be more satisfactory to deal with it by way of an annulment motion.

The Taoiseach

I am not objecting to that. At the moment I am not in a position to deal with it in a way that would give satisfaction to the House and, therefore, carry the conviction which I think the Minister will be able to carry with him. I do not think there is anything more I have to say on the Bill. We have already argued the principles of it many times.

Question put and declared carried.