Vol. 96 No. 25
The first amendments are not vitally important. There are some slight changes that should have been put into the Bill before it was sent to the Seanad, arising out of an amendment that I accepted in the House on Report Stage. Numbers of sections should have been changed. I move that the Committee agree with the Seanad in amendment No. 1:—
In page 3, line 44, the figures "23" deleted and the figures "24" substituted instead.
Agreed.
I move that the Committee agree with the Seanad in amendment No. 2:—
In page 4, line 7, the figures "26" deleted and the figures "27" substituted instead.
I move that the Committee agree with the Seanad in amendment No. 3:—
In page 7, in line 21, immediately after the word "Bodies" the words "and after giving notice to the executive of any existing authorised racecourse which, in the opinion of the board, may be affected" inserted.
The Seanad thought it proper that notice should be given in case the Racing Board desired at any time to establish a new racecourse in the vicinity of any existing racecourse; that no action of that kind should be taken without giving notice to the executive of the racecourse with the management of which they were not quite satisfied. I accepted the amendment in the Seanad.
Would the Minister be good enough to tell us what is to happen if the Racing Board does not give the notice they are required to give under the Act? What does the aggrieved racing company do?
The courts of law would be available for them in that case.
What do they do? What is their remedy?
They would call attention in the courts to the fact that the law had not been observed.
But assuming that the presiding judge said: "I observe that to have been the case", what then does the racing company do? Is there a penalty on the board? Is there a provision, in the event of the Racing Board failing to give the racing company the notice they are required to give under the Act, that they should abandon the land or forbear to build a racecourse upon it, or pay a sum in damages to the racing company? It does not seem to me to be much good to insist that the board should give notice if you are not going to provide that, in the event of the board failing to comply with the terms of the statute, some consequences would ensue from their failure having been revealed to a court of law.
I think the action in the courts would be sufficient. If the board attempts to go ahead without reference to this sub-section here, which provides that the racing executive should get notice, I think the courts would see to it that an injunction of some kind would restrain the Racing Board until the law is complied with.
An injunction could not restrain the Racing Board from doing something it had already done. This section is designed to provide that, before the Racing Board acquires land in the vicinity of the race company's track, they shall notify the race company. If we put that provision in the statute, this question at once arises: suppose the Racing Board acquires land without giving the statutory notice to the racing company, what is the racing company to do? The board has the land. Has the company, under that amendment, the power to get an injunction in perpetuity against the Racing Board from putting a race track on the land that they acquire? It might be, from the point of view of policy, a desirable thing that the Racing Board should put a race track in the immediate vicinity of badly run racing company's track. The board fails to carry out its duties to notify the racing company; the board acquires the land. That having been done, the racing company goes to the court and says: "The statute provides that, before the Racing Board can buy land for the purpose of constructing a racecourse, it must notify us. Therefore, we ask for an injunction prohibiting the Racing Board from ever putting a race track on that land." I think the terms of the statute entitle them to do that, if there is an obligation on the Racing Board to give the company notice before purchasing land on which to put a racecourse. Does the Minister want to do that? If it is a desirable thing to put a second race track there, I think you ought not to give the offending company power or opportunity to get a permanent injunction against the Racing Board from ever putting a race track there. That is what I think this amendment is doing. Otherwise, how is the law to be enforced? What remedy can the court give an injured party except to say: "Inasmuch as the board bought that land without giving you the statutory notice to which you were entitled, we will not allow them ever to put a race track there"? I see no other remedy at the disposal of the court.
I cannot exactly see the courts giving an injunction in perpetuity. It might happen, but I cannot see it happening. But nothing prevents an injunction being given for a year or two years of five years, renewable if the law had not been carried out by the Racing Board in the meantime, or if the Dáil here had not had an opportunity of re-examining the question.
But what the Minister fails to observe is that, the moment the Racing Board buys land, they can never comply with the Order in respect of that land, because the law requires them to notify the racing company before they buy the land to establish a race track in the vicinity of the existing track. The moment the land is bought, the door is closed for ever upon the Racing Board's compliance with the law in respect of that piece of land. If you have an ancient right, if you have acquired the right to open a window over my garden, and I try to raise a wall which will obscure your light, the remedy which the courts adopt is that they give you an injunction in perpetuity against me, prohibiting me from ever raising any obstacle which will obscure your light.
If you agree that it could be done there, could not that happen in this case?
The Taoiseach apparently does not understand what the position is. You have got a racing company which has been condemned as corrupt or inefficient by the Racing Board. The Racing Board announces that the administration of the track is so bad that they are going to establish, in competition with the corrupt track, a track under their personal direction. The statute, if this amendment is inserted, requires the Racing Board to notify the offending company before it acquires the land to establish the competing track. The Racing Board fails to give that notice. Mind you, if you are trying to buy a piece of land, you would not want to go around telling all the neighbours, as the Taoiseach well knows. If the Board of Works wants to buy a piece of land, they do not go and tell the neighbours, because, if they did, the price would go sky high. It has all to be done under the rose in order to get the land at anything like a reasonable price. This amendment provides that the Racing Board will notify the offending company that they are going to buy this piece of land to establish a racing track on it. Suppose that, in order to get the land at a reasonable price, they buy it surreptitiously, and then go to the corrupt, bad, racing track company and say: "We are going to put a racing track right down beside you, because there are no other means of making you behave properly", and the racing company says: "Under the amendment put in by the Seanad you cannot do it; you did not give us notice of your intention to purchase the land before you bought it. Now, you have bought that piece of land, and we are going into court to say that you failed to carry out your obligation to us under the statute. We claim our right. Our right is that you shall not build a race track upon this piece of land purchased by you in our vicinity, because you did not give us prior notice of your intention to buy." My submission is that if they can prove all these facts the court will say: "It is admitted that the Racing Board are trying to build a track in competition with the existing track. It is admitted that they purchased land in the vicinity of the existing track. It is admitted that they did not give notice to the racing track company before they bought the land. Therefore, according to the statute, they must never put a race track on that piece of land." The court would give the racing company an injunction in perpetuity against the Racing Board from putting a race track on that land, and that is almost certainly the only piece of land suitable for a race track in the vicinity, because it is not every piece of land that is suitable for a race track. Does the Minister want to do that?
If, instead of this amendment you say that "in the event of the Racing Board failing to give notice to the company, the company shall be entitled to full compensation for all their assets", or something of that kind, then the racing company has an ascertainable remedy against the Racing Board. That would not prevent the Racing Board from doing what is necessary to be done, but it would compensate the racing company for any fortuitous loss to which they may be put through the laches of the Racing Board. What I am afraid of is that the amendment is liable to hamstring the Racing Board. Even suppose a situation never arises in which the Racing Board is impelled to do its statutory duty, you can see the Racing Board's position. It has to go to the racing company and say: “I am going to buy William Murphy's farm for a race track”. William Murphy says: “Very well, if you are it is going to cost you £35,000. I offered it last week to a neighbour for £7,000, but if the Racing Board wants it, £35,000 is the price—not a penny less”. Is it not true that, when the Board of Works want to buy a house in Dublin, they have to buy it through junior clerks, third cousins, aunts, relatives? If it once got out that the Board of Works wanted a house, gold would not buy it. If this section ever is to be operated—of course, it may never be operated—you are going to make the position of the board impossible, because they never will be able to buy land if they have to notify the whole country that they want to buy it.
The Deputy's case is all built on the hypothesis that the board will not obey the law.
It is not.
That is as I understand it, that the board will not give notice.
Suppose they do give notice and William Murphy raises the price to £35,000?
If they are asked to pay an exorbitant figure the board will not purchase.
Then they cannot start an alternative racecourse.
There will probably be competition. They can go elsewhere.
They will all want £35,000 then.
I am assuming that the board will be sensible and businesslike men and obey the law. If they do act in that way, the difficulties that the Deputy foresees will not arise. I do not think it is likely that they will. I take it the board will act reasonably. If they do not act reasonably, under the Bill as it probably will be passed, they are to be reappointed from time to time and therefore a new board could be appointed that would act reasonably and sensibly and carry out the law.
Is the Minister not missing the point? We are assuming that we are dealing with a corrupt racecourse company. That is the real trouble—you cannot change it now. The only thing the Minister can do is to withdraw this ridiculous amendment, which is hopeless. You must assume that this section is designed to deal with a corrupt racecourse company, a bad racecourse company. The racecourse company is earning a considerable revenue or it would not continue to carry on. The Racing Board determines that they must buy land and build another racecourse to put the bad racecourse company out of business. The bad racecourse company must be notified before the board buys a piece of land. The board says: "We will buy William Murphy's farm." The bad racecourse company go to William Murphy and say: "We will pay you £400 a year rent for your farm or we will pay you £500, if you like, and you can have the benefit of it so long as it remains your farm. You can then rent the farm to some other fellow and draw two rents, so long as you do not sell to the Racing Board. That is all we ask." Now the Racing Board must make a capital bid for that farm of greater value than any rent the racecourse company will pay the fellow who is asked to sell. If they do not purchase from William Murphy and they go to Tom Murphy to buy his land, again they must notify the racecourse company, whereupon the racecourse company will say to Tom Murphy: "We will pay you £500 a year and you can set your land to any man you like, but do not sell to the racecourse people." How can the board ever buy land in the vicinity of a corrupt racecourse company? What happened here is this. Some muddleheaded person put up this amendment and the Minister was tired——
That was done in another House and I do not think the Deputy should cast reflections on it.
If I said he was farseeing, someone would say that was a corrupt racecourse owner. I will say then that some competent legislator put this up. The Minister for Finance was tired and wanted to go to his tea and said: "All right", and the thing is now in the Bill and, as the Minister himself said sotto voce:“We cannot get it out now”.
It would be possible for the committee to disagree with the amendment.
There will be a way round that if that difficulty arises.
It is manifest that no one will agree to the amendment which is a thoroughly bad one.
There will be sufficient ingenuity to get around that trouble, if it arises.
It is a mare's nest.
It is a bad amendment. Manifestly the Minister did not understand it in the very least degree when he accepted it. Would it not be better to disagree with the amendment?
I think the Deputy started with one point and now he has got on to a second.
There certainly are two excellent points against it. The Minister knows well that there are. He has agreed sotto voce that there are.
I have not.
The reason he will not agree with me is that he thinks we cannot get it out now. I will give you an opportunity of trotting through the Lobby on it.
I think the Minister should reject the amendment. I happen to know how it came to be put in the Bill. The Senator who moved it did it from the very sound point of view that he thought an existing racecourse executive should not find itself in the position in a short space of time of having another racecourse alongside it. While the Bill provides that land can only be acquired by agreement, under this amendment notice must be given to the existing racecourse executive. The position is as Deputy Dillon outlined, that the price will rise far beyond the capacity of the Racing Board. I suggest to the Minister that the amendment should be rejected and sent back to the Seanad.
It is not necessary. There is a way around that. Even with all the arguments of Deputy Dillon, I do not think it is necessary, because it is obvious that, if you have to buy land, by getting someone else to do it, you can get an option on it and an agreement through an intermediary between the Racing Board and the owner.
Faith you will not.
If that difficulty were to arise, some method to prevent the price of the land being put up against the buyer would be found to avoid that.
That is where the Taoiseach makes the mistake.
The actual position is that you will have to give notice to the existing racecourse company. No sooner will notice be given to the racecourse company than everyone in the neighbourhood will know all about it and the price of land will then soar, even if you get an option. The difficulty is that, unless agreement is reached, they cannot purchase the land.
You can enter into an agreement to purchase, but you need not necessarily complete it.
You can have a provisional agreement.
Unless they are prepared to pay the price——
If you want to buy land, you can ask some agent of yours to find out what the price will be and enter into a provisional agreement for the purchase and then, before the matter is legally completed, you can give notice and say there is an option to purchase. You have the option and you give the notice. I am certain that you can get around it in that way where an attempt is made to bring about that situation.
This is a most astonishing situation. Deputy Dillon has pointed out what may happen in certain circumstances. Now we find the Taoiseach not being as simple as he pretends to be. We find that he knows how to do a little bit of wangling in connection with the purchase of land, just like anybody else in this House; that he is prepared to do a little bit of twisting around to circumvent Pat Murphy. As a supporter of Pat Murphy, I am a defender of his rights and I think I should not allow Pat Murphy to be treated in this way. Whatever is done it should be done openly and above board. I suggest that the amendment should be rejected by the Dáil and that the Seanad should reconsider the matter. There is no great urgency about the Bill. There is no reason why this Parliament should not legislate in a proper manner. We should not be creating situations in which trickery, and I use the word deliberately, will be allowed under a statute of this House. I feel we are bad enough without having to cover up these things by legislation in this particular way. I suggest the amendment should be rejected.
There is extraordinary talk about trickery. I am sure, if Deputy MacEoin wanted to buy a piece of land and he saw that, because he, Deputy MacEoin, was going to buy it and because he was Deputy MacEoin, the price would be five times its ordinary value, he would ask a solicitor or somebody else to buy it as his agent instead of doing so himself. In the same way, Deputy Dillon has pointed out that it might happen, if it was known the Racing Board was going to buy land, that the price would go up. He said that in the ordinary way the board will not have the remedy that the ordinary person has, that is, to ask somebody else to buy for them, for they have to give notice first. I do not think, if an attempt was made like that, that the Racing Board would act as Deputy Dillon suggests; they would do what any ordinary person in similar circumstances would do and, if the price was going to be unfairly put up against them, beyond the market price, because they happened to be the buyer, I think they would be able to get an agent, just as a private person would, to go to the point at which they would be ready to complete the purchase. I agree there would have to be a provisional agreement.
Is not that a negation of the law?
If a case arose in which this thing had occurred, and a perpetual injunction was being brought against the board, there is a legislating power left. I think the case put up is a far-fetched one and if such an extraordinary case as was put up here should occur, there will still be a final court of appeal in which a wrong can be righted. It would need legislation, no doubt. If you have a case where there is injustice being done or a corrupt body is allowed to prevent the functioning of the legitimate and proper body, there would be the legislature of the day to deal with it. But it is so far-fetched that it is scarcely worth while doing that, in view of all the trouble it would cause.
I quite see the Taoiseach's point that it ought to be possible for the Racing Board to get an agent and to act anonymously. I think the Taoiseach is quite mistaken in that view. That is a quite legitimate thing to do in ordinary contractual relations between individuals, but where you purport by statute to give a person certain protective safeguards——
Is not the protective safeguard to prevent a racing track from being established? It is not so much the purchase as the use of the land.
This amendment is put in to require the board to notify a racing-track company before it acquires the land. That appears to me to give a statutory right to the racing company.
It does.
If you resort to any expedient which is perfectly legitimate in the open market, but which in this particular context would be specifically designed to prevent the racing company having the benefit that the legislature intended to confer upon them, the benefit of notice, I think the courts would say at once: "Inasmuch as all the secrecy attendant upon this transaction was designed to avoid the express intention of the statute, we will deem this transaction to have violated the principle from the very beginning and we will treat it as if no agent was employed"; otherwise, I think it would make our Act of Parliament utterly ineffective if there was an obvious way of avoiding the obligation to give notice which this amendment seeks to impose on the board.
I admit at once that if any contingency arises we always have the legislative arm to fall back on and we can pass another Act of Parliament but surely we have not grown so slipshod in our legislative practice as to pass amendments to sections of Acts simply because it is too much trouble to enact them rightly, in the hope that a foreseen contingency will not arise and in the determination that if it should we will pass another Act to amend the Act we are passing now. If that be the way we are legislating in the future, we will get into a very strange state of mind and a committee debate in this House will not serve any purpose.
It might be highly unlikely that any racecourse company will become so corrupt as to make recourse to this part of the Bill necessary. But suppose you have a head-on collision between the race track company and the Racing Board, does not the Taoiseach think the race track company will have recourse to every possible right it has to prevent the Racing Board from wiping it out of existence? If I were a member of the board of directors of a racing company I would summon the best counsel I could command and ask them to study the Bill and advise me of the limit of my right against the board, because I would say: "The board is trying to wipe me out of existence. Certain safeguards will be provided for the company against the board and I want to avail of them"—and I think that would be right. Surely it is wrong for us to pass a Bill of this character, giving very wide powers to a board such as is set up, under false pretences. Surely we should not pass a Bill of this kind, pretending to give safeguards to private companies against the board but intending, in the event of those safeguards ever being invoked by a company, to repeal them by another statute. It is not just and it is not honest; it is not the way to legislate. It is for these reasons I could not consent to an amendment of the kind proposed, more especially as I am perfectly certain that the Minister did not see the full implications of this amendment when he accepted it and, seeing them now, he substantially agrees with the case I make but falls back on the position put forward by the Taoiseach, that if any contingency should arise, we can always pass another Bill. That is not the way to deal with legislation of this sort.
If Deputies will read the section with the amendment inserted, they will see that it runs like this:—
"The Board may, with the consent of the governing bodies, and after giving notice to the executive of any existing authorised racecourse which in the opinion of the board may be affected, establish, equip and maintain racecourses, and for this purpose may acquire by agreement or lease any land (including any racecourse)."
I am not a lawyer, but my reading of that is that there is not any obligation on the board to give any notice in writing to a racecourse owner before they purchase the land; but there is an obligation on them to give notice before they establish or equip or maintain a racecourse.
After giving notice.
After giving notice. They can purchase the land but, before they establish, equip or maintain the racecourse, they must give notice.
"And acquire." Read the rest of the section.
"And for this purpose may acquire by agreement or lease any land."
But it is after the giving of notice.
No, no. I am not a lawyer, but that would be my reading of it.
Would the Tánaiste give sample dates of occurrence in a case of this kind?
No, indeed, I will not attempt to do that. I do not think the difficulty the Deputy sees is likely to arise in the case.
I really think the Tánaiste should reject the amendment. It does not give any particular rights to an existing racecourse and it may happen that some aggrieved existing racecourse executive would take legal opinion and challenge the validity of the notice in the courts. The position will then be that the board will be faced with unnecessary expense and delay in establishing and acquiring the racecourse. It does not facilitate the existing racecourse executive in any way. It is only a question of notice; it does not even say "notice in writing", which is the usual provision in a section such as this. Unless the Minister has some better reason than he has given, I think he should reject it.
I stand by the amendment.
I am asking the Tánaiste, with a view to understanding what was in his mind when he made his last statement, to quote a hypothetical date upon which the board might acquire the land, a hypothetical date upon which they might then give notice and another date upon which they might then establish equip and maintain the racecourse there. The Tánaiste asked us to understand from this that, on the 1st January, 1946, with the intention in their mind to establish and equip a racecourse, they may buy land and then, having gone through the process of buying the land, they may, on say, the 1st May, give notice to the other racecourse that they are now going to establish, equip and maintain a racecourse there. That is what the Tánaiste suggests to us that this section, as amended, would mean. It is very hard for us to believe that.
The great argument is that he cannot take it out now.
I would like to ask if the Tánaiste means that, on the 1st January, 1946, the board may buy land large enough to provide a racecourse on and after that date may give notice to the other company that they are then going to establish a racecourse there?
I believe that that could be done by the board legally.
Would the Tánaiste say if, from his recollection of the discussion that went on in the Seanad, this amendment was put in on the understanding that, before buying land, it would be necessary to give this notice?
That did not arise in the discussion, as far as my recollection goes.
Nor was it raised.
That narrow point did not arise.
Surely, the Tánaiste realises that the Racing Board is very unlikely to establish a racecourse beside an existing racecourse unless the existing executive is not carrying out racing to the board's satisfaction? It is in that specific case that this section will apply. The Tánaiste argues that they can acquire land without giving notice. Has he got legal advice on that?
I have not. Has Deputy Hughes got legal advice to offer?
No.
We are in the same boat.
The Tánaiste ought to be able to tell us what the section means.
It is his responsibility.
That is so.
Manifestly, the Minister for Finance does not know what it means.
I move that the Committee agree with the Seanad in amendment No. 4:—
In page 14, line 33, the word "are" deleted and the word "is" inserted instead.
This is a grammatical amendment.
I move that the Committee agree with the Seanad in amendment No. 5:—
In page 14, line 37, the words "stewards of the governing bodies" deleted and the words "appropriate governing body" inserted instead; and in line 38 the word "stewards" deleted and the words "governing body" substituted therefor.
Under the rules of racing and the Irish National Hunt Steeplechase Rules, all administrative powers are vested in the Stewards of the Irish Turf Club and the I.N.H.S., respectively, and there was some difference of opinion as to whether the stewards of the Turf Club or the I.N.H.S. Committee should rule in this particular case. I thought it wiser, in agreement with the amendment in the Seanad, to alter the wording, as suggested in the Seanad, by deleting the words "stewards of the governing bodies" and substituting the words "appropriate governing body", in line 37, and, consequentially, to delete the word "stewards" in line 38, and substitute the words "governing body".
