What is proposed under Section 35?
Public Health Bill, 1945—Committee (Resumed).
Question proposed: "That Section 35 stand part of the Bill."
It proposes to empower local authorities to appoint nurses to attend infected persons. It repeals Section 67 of the 1907 Act. The 1907 Act confined the service of nurses to persons for whom hospital accommodation was not available or to cases where removal to hospital was likely to endanger the patient's health. It may be necessary to provide domestic service under this Act where hospital accommodation is available or where removal might not necessarily endanger the patient's health.
Is it the intention that the nurses' services shall be reserved solely for infectious cases?
Yes, under this section.
How will the cost of this service be borne?
Most of those nurses will be employed under the tuberculosis scheme when tuberculosis is brought into the category of infectious diseases. The cost of the tuberculosis service is met, as to 50 per cent., by the local authority, and 50 per cent. by the central authority.
Will the Parliamentary Secretary avail of the opportunity to make a statement on the position of nurses in rural areas under voluntary organisations such as the Jubilee Nurses' Organisation?
We shall be dealing with that matter on Section 85.
Or 96? Section 85 deals with mothers and children, but Section 96 deals with the appointment of public health nurses.
I rather think that the principal discussion will take place on Section 85, because the appointment of nurses would be part and parcel of the scheme. I think that Section 96 is only a machinery section.
Will some of those nurses be fever nurses as well as tuberculosis nurses?
It is not likely that nurses will be appointed for the domiciliary nursing of fever cases but the power will be there. In certain circumstances, it is conceivable that it would be necessary to use it but, as a matter of policy, it will not be so used.
These people will go to hospital.
In the ordinary way, infectious diseases will be dealt with in hospital but, in certain circumstances, they may be dealt with domestically. Generally speaking, the cases dealt with domestically will be private cases in which the families will provide the nursing service.
Question put and agreed to.
SECTION 36.
Amendments Nos. 165 to 167, inclusive, not moved.
On behalf of Deputy Costello, I move amendment No. 168:—
In paragraph (b), line 15, before the word "failed" to insert the words "wilfully and knowingly".
A number of amendments appear on the Order Paper to this section but I think the form in which Deputy Costello has put his amendment is perhaps the simplest. The section generally proposes that if a person suffering from infectious disease fails to take certain precautions, in certain circumstances he may be held by a court to be liable for damages for infecting some other person with the disease. Paragraph (b) simply says: "if such person has failed to take the precaution" indicated in this Bill or in some other regulation. The effect of Deputy Costello's amendment would be to make the paragraph read: "where such person has failed wilfully and knowingly to take the precaution". On the section itself we can discuss the morality and reasonableness of the proposal when we see it as a whole but if the section is going to stand in any way, it should not be possible for a person to be mulcted in damages who either innocently or through ignorance had been the cause of transmitting an infectious disease to some other person.
It is rather difficult intelligently, or usefully indeed, to discuss one amendment, standing out on its own without considering the section as a whole and the various groups of amendments indicating the different approaches to the section as it stands. I do not know whether we would get into deep water, but if the amendments were taken together, it seems to me that we could have a general type of discussion on the section as it stands.
We should be delighted to hear what the Parliamentary Secretary had in his mind in putting down the section.
The Leas-Cheann Comhairle might have something to say to that but if we reached an understanding we might be able to dispose of the various amendments in a general discussion without having a prolonged debate on each of them. Do not take me as wanting to restrict the discussion. That is not the point at all but it is difficult to deal properly with one amendment standing by itself in relation to this section. However, I am in the hands of the Leas-Cheann Comhairle and the House.
Surely so long as we proceed intelligently there is no necessity to give hostages that we shall not restrict the discussion in any way. Under this section a person is liable to be mulcted in damages by a court, in case he passes on an infectious disease to another person. I submit that when we seek to have an amendment inserted to provide that that can only happen where an infected person wilfully and knowingly fails to take certain precautions, the whole matter of the section is completely open for discussion.
Amendment No. 169 is very similar. Perhaps both amendments might be discussed together.
If amendment No. 168 is passed, amendment No. 169 will not arise and I am sure that Deputy Coogan would like to have something to say on his amendment.
The general purpose of the section is to provide that if a person, who knows that he is a probable source of infection, fails, to take precautions—the particular precautions are covered in Section 19—and as a result of his failure, some other person has been exposed to the possibility of infection, and such other person has in fact been infected, the court shall presume the guilt of the first person. I submit that the point covered by Deputy Costello's amendment, "that such person wilfully and knowingly failed to take precaution", is already covered in the sections previously dealt with, because if a person does not know that he is a probable source of infection, he is not guilty of any offence if he exposes himself in a public place or if he fails to take any precaution laid down concerning which a statutory obligation is placed on him. It seems to me that this amendment, therefore, is not necessary.
If, with the permission of the Chair, I might say a word about the general approach to the section, I do not think it will be denied that the principle contained in the section is a sound one. If a person is a probable source of infection and, knowing that, does in fact endanger his neighbour and expose him to infection, and his neighbour in fact, becomes infected as a result, it seems to me that in such circumstances the person infected ought to have a definite sustainable claim for damages. It may be said that he has a civil right or his rights at common law. He has, but the difficulty is that it has been found almost impossible to prove that the person who is responsible for transmitting an infectious disease in fact acted in a guilty way. In the earlier sections of the Bill, we have provided that if he knows he is a probable source of infection he must take certain precautions. We now go a step further in an effort to protect the community —by providing the possibility that a person may secure damages against an infected person who acts in that careless, irresponsible way, knowing he is a source of infection. There are various approaches to the section in the amendments which have been put down. Deputy Costello has a number of amendments aimed at making it somewhat more difficult for the person who contracts the disease to secure redress in a court of law. Deputy Mulcahy has a further amendment that would appear to me to nullify the section and Deputy McGilligan has a set of amendments that aim at safeguarding to a lesser extent the statutory rights of the person who knowingly exposes his neighbour to the possibility of infection. I think that the section may be too severe as it stands because it provides that, unless it was proved that it was impossible for the infection to be carried in any other way, the defendant would be held to have committed the offence. If we can approach this in a general way I think that amendments Nos. 170, 173, 177 and 178, standing in the name of Deputy McGilligan, would not be objectionable to me in principle. I would be prepared to meet criticism of that section on the Report Stage along the lines suggested by Deputy McGilligan. I do not select his amendments because of any particular love that I have for him as opposed to my undoubted "grádh" for Deputy Costello, but I think that the acceptance of the principle of Deputy McGilligan's amendments would leave us a reasonably workable section. I think that, if the House is prepared to meet me in that way, it would be a better solution than that suggested in the other amendment.
I did not catch the numbers of the amendments the Parliamentary Secretary mentioned.
The first one I referred to was No. 170, which proposes to insert the words: "who is unaware that such person is a source of infection with an infectious disease". The principle of that, for example, could scarcely be argued against. If I am aware that a person is a probable source of infection, and I deliberately associate with that person, I do not think that I have much of a grievance if I contract the disease. Therefore, I think that the line of thought behind amendment No. 170 is reasonable. The next is amendment No. 173—that the infection should be "after such exposure". That, too, appears to me to be a reasonable suggestion, because I take it that it is intended to guard against the possibility of a person already incubating the disease before the exposure took place. With regard to amendment No. 177, the section reads:—
"Unless the court is satisfied (and the onus of so satisfying the court shall lie on the defendant) that by reason of the time of such infection or for any other reason it was impossible for such failure to have caused such infection."
Deputy McGilligan's suggestion in amendment No. 177 is that, instead of saying that it was impossible for such failure to have caused such infection, it was "unlikely that" such failure caused such infection. That makes it somewhat easier. I think the amendment is not unreasonable. The actual wording of it, of course, will have to be examined. Subject to the agreement of the House, I would be prepared to accept the general principles of these amendments.
Does the Parliamentary Secretary say that ringworm is an infectious disease?
Yes. It will be scheduled as an infectious disease.
In the case of calves, ringworm is known as "tethers." In fact they are very susceptible to it. Two persons feeding calves on farms half a mile apart may contract ringworm or "tethers" from the calves. If these two persons are seen on the road would it be held that they had "wilfully and knowingly" spread the disease, when in fact a calf was the culprit, or would the Parliamentary Secretary put the calf "in"?
No, we would slaughter the calf. The punishment that Fianna Fáil inflicts on calves is to slaughter them.
That is bad for the calves. In any event the disease might be contracted in that way.
Is amendment No. 169 being withdrawn?
No. I submit that the Parliamentary Secretary has given no reason for leaving out the words "wilfully and knowingly." He has just admitted himself that the section may be too severe. Even the section as re-modelled, in relation to the amendments in Deputy McGilligan's name, will not have much of its severity removed. These amendments will simply eliminate some person who, as the Parliamentary Secretary himself has suggested, habitually associates with a person affected by an infectious disease. There is a modification of the section with regard to the outlook which the court may take of these cases. We can deal with that later. The section provides very serious penalties. The Parliamentary Secretary says that he is going a good step further to see that it will be easy to get damages in court from a person who is shown to have passed on an infectious disease. Even if the words may be implied in previous sections, I think that in this very penal section it should be explicitly stated that failure on the part of a person to take precautions which would involve these penalties on him would be a failure that had taken place "wilfully and knowingly."
That is implicit in Section 19.
A person is told in Section 19 that, if he has whooping cough, ringworm, tuberculosis, scabies or any other of these infectious diseases, he cannot cross the road, and that if he does Section 19 begins to operate. That is the Parliamentary Secretary's case for leaving out the words "wilfully and knowingly". Is that not so?
No.
At any rate, under Section 19 if a person with an infectious disease leaves his own house, knowing that he has whooping cough, ringworm or tuberculosis, he is caught under that section as an offender. It is in order to secure the sacredness and the great strength of the principle enshrined in Section 19 that the Parliamentary Secretary objects to putting in the words "wilfully and knowingly" in the case of an offence that may be committed under Section 35.
No. It is because I am advised that it is not necessary, that no offence is committed unless he knows he is doing wrong.
Read the section again.
This is a civil action for damages.
It is an action in a case in which it is said he has failed to take precautions. There is nothing in the section about a man's attitude or state of mind and it does not say "where he has committed an offence under Section 19". It says: "where he has failed to take precautions".
But he is bound to take precautions.
And I want to insert in those words the phrase "wilfully and knowingly".
Having regard to the very strong presumption in the section against the defendant in any civil proceedings, it is only right and proper that paragraphs (a), (b) and (c) should be tightened as much as possible. These paragraphs are very vague.
They say:—
"Where—
(a) circumstances have arisen in which a provision of this part of the Act or of any regulations made thereunder requires a person to take a precaution against the infection of other persons with a particular infectious disease, and
(b) such person has failed to take the precaution, and
(c) any other person has been exposed by such failure to the risk of infection....
(d) such other person has been infected with the disease...."
There is a presumption against the first-named person that he failed to take the precautions.
I do not want to impose penalties on the person who, unknowingly or unwittingly, transmits a disease to somebody else, but I am advised that the Bill will not operate against a person who acts unknowingly or unwittingly. Neither Deputy Mulcahy nor Deputy Coogan is satisfied with that. I will have it further examined in the light of the viewpoint put forward here. I shall be satisfied with a provision whereby a person will be guilty of an offence only if he knows he is doing something wrong.
This is not a question of a wrong.
I know, but he will be liable only if he knows he is doing something wrong. I am advised that that is the position, but if it is necessary to make that position clearer, I am prepared to do so.
I think it is essential, because the section as framed might leave it open to mischievous persons to take frivolous or vexatious actions.
Nobody wants that.
There might be endless litigation and I think it essential that it should be again examined to ensure that ill-founded actions cannot be taken.
I am prepared to do that.
Amendment, by leave, withdrawn.
Amendment No. 169 not moved.
Amendment No. 170?
The Parliamentary Secretary has agreed to consider the whole position in relation to amendments Nos. 170, 173, 177 and 178.
I will try to embody the principle of these amendments in an amendment on Report Stage.
Amendment No. 170 not moved.
Amendment Nos. 171, 172, 173 and 174 not moved.
With regard to amendment No. 175, the amended portion of the section will read:—
"... in any action against the first mentioned person by such other person for damages suffered by reason of his having been infected with the disease, the court shall presume that such infection was the direct result of the failure to take the precautions unless the court is satisfied (and the onus of so satisfying the court shall lie on the defendant) that by reason of the time of such infection or for any other reason it was unlikely that such failure caused the infection."
The defendant will have to persuade the court that it was unlikely that he was responsible for causing the infection. That is the form in which the Parliamentary Secretary wishes to remodel the section and we shall have to consider it and see the Parliamentary Secretary's amendment before dealing further with it.
Amendment No. 175 not moved.
Amendments Nos. 176 to 178, inclusive, not moved.
Question proposed: "That Section 36 stand part of the Bill."
Would the Parliamentary Secretary, in view of the difficulty which he foresees with regard to the implementing of this section, consider the desirability of withdrawing the section altogether——
Oh, no.
——and allowing the matter to be dealt with in the courts in accordance with the ordinary common law? The Parliamentary Secretary mentioned that it was difficult to secure damages in the courts in matters of this kind in the past, but he must remember that the law in regard to infectious diseases is being altered considerably under Section 19. The courts will have a clearer picture of what constitutes failure to take precautions and so on, and thus it may be more likely that a person will be able to secure damages. I think the Parliamentary Secretary should be satisfied with that, without seeking to tighten up the law still further.
The section is a little in the air at the moment, as the Parliamentary Secretary has said that he proposes to consider certain parts of it, but I should like to put this to him as my opinion. I do not like the idea of the defendant having to prove his innocence. That seems to be a departure from the ordinary legal procedure and an infringement of the rights of the citizen. We recognise that people who wilfully contravene various regulations and sections of this Bill have done a wrong act. I would like to see that the ordinary legal procedure operated in those particular cases; in other words, that the defendant went in not as a guilty man having to prove his innocence but as a man going in on a charge. I have not put that into legal language, as I am not a lawyer. Forcing the hand of the court, under paragraph (d) of this section is going a good deal too far. The results which we all wish to get could be obtained in a much fairer manner by letting the ordinary court procedure stand. Let the court be satisfied as to the guilt of the man and let us not tie the hands of the court by that sub-section. I would like to see that put into legal form in this section.
It might be desirable to consider a provision whereby certain infectious diseases might be excluded from the effects of this section.
I need not delay the House any further on the section. I would mention, however, particularly to Deputies Cogan and Dockrell, that the person affected and against whom this section is more or less directed is a person who knows already that he is a danger to his neighbours. Knowing that, he is under a statutory obligation to take certain precautions for the protection of his neighbours and if he fails to do so, if he does not bother his head, as a result of such failure somebody else may, in fact, contract the disease. All along the line, this person has been acting, not only in a careless and irresponsible way but in a criminal way. As the law stands at the present time, it has not been possible to secure redress against him, as he has not been under a statutory obligation to take precautions and it has never been possible to trace the matter home to him.
I think everybody would agree that a citizen who acts in that way and endangers the lives of others by his deliberate negligence and criminal conduct deserves to be punished. If you or I contract from him a deadly disease as a result of his carelessness, we may survive or we may not, or somebody very dear to us may not. I think it is time we brought it home very forcibly to those people who are acting in that irresponsible way and endangering the lives of others that, apart from any other consequences, there will be certain material consequences to follow if the guilt is brought home to them. That is the purpose of the section. It may be said that we are making it difficult for the person who is the source of infection. That is granted, but in this particular instance we are more concerned with the innocent person who has done nothing wrong and who, because of the negligence of the careless person, has his life endangered.
We all agree with the Parliamentary Secretary on that point. No one wants to see the guilty man being allowed to infect his neighbours with impunity, but at the same time we want to ensure that an innocent person is not mulcted in damages or the victim of something in the nature of a frame-up.
We must try to guard against that.
That is what I would like to see in the section.
I will look into that and also into Deputy Coogan's point to see if we can exclude some of the minor diseases.
This is a section on which it may be very desirable to go into Committee on Report, as we may have to consider amending the Parliamentary Secretary's amendments.
I have no objection to that.
Question put and agreed to.
SECTION 37.
I move amendment No. 179:—
To delete sub-section (2) and substitute therefor a new sub-section as follows:—
(2) In all prosecutions for an offence under this Part of this Act the complaint shall be made within 12 months from the time when the cause of complaint shall have arisen but not otherwise.
Section 37 as framed removes the limit of six months for prosecution imposed by the Petty Sessions (Ireland) Act, 1851 and does not put in any limit. I am suggesting that the proceedings should be taken at least within 12 months and I think that is not unreasonable. I would also point out that under the 1878 Act, Section 250, there was a limit of, I think, six months or 12 months.
Acceptance of this amendment is not just as simple as it appears to Deputy Coogan. Certain offences may be committed under this Part of this Bill and may not come to light for a considerable time afterwards. If you ask me to recite a number of such cases, I could not do so offhand; but I will give one example. Take the letting or the sale of a house. A person suffering from tuberculosis may have been a tenant or may have lived in the house as occupier. Subsequently, the house may be closed for a considerable time and a stranger from another district may come along and take a tenancy or purchase it. In the course of a little time, it is found that the infection had remained about the house and that no one had known anything about it. That is a definite circumstance where a time limit would be dangerous.
On the other hand, I concede at once that we do not want these actions to be arising five or six years afterwards. One could easily have that type of frivolous action, but no one wants to see it arising under this or any other section. Deputy Coogan has a number of amendments on that point and, on thinking over them and examining them pretty closely, it seems to me that the machinery provided under the National Health Insurance Act would probably be appropriate. I will read the details of that machinery for Deputies now and have their views on it. It is intended to cover the same contingency as in the case of this section, the type of case which would be dealt with in a court of summary jurisdiction and would ordinarily be subject to the same restrictions as to time for the prosecution. Power to deal with such actions would be similar to a provision of the National Health Insurance Act, 1920, and it would run like this:—
"Any proceedings for an offence under this Part of this Act before a court of summary jurisdiction may, notwithstanding any enactment limiting the time within which such proceedings may be brought, be brought either within the time so limited or within three months from the date on which evidence sufficient in the opinion of the Minister to justify a prosecution for the offence comes to the knowledge of the county authority... and for the purposes of the section a certificate purporting to be signed by the Minister as to the date on which such evidence as aforesaid comes to the knowledge of the county authority, and such certificate shall be conclusive evidence of the said date."
Under that type of machinery, if evidence came to light after 12 months and the sanitary authority desired to prosecute, they could only prosecute having first satisfied the Minister that there were reasonable grounds for the prosecution and that the lapse of time was, in the circumstances, inevitable. They could only prosecute on the Minister's certificate. I think that is a rather useful type of machinery.
What class of offence is the Parliamentary Secretary speaking about?
Non-compliance.
It relates principally to the giving of false information concerning means?
Any class of offence that comes under summary jurisdiction.
Perhaps the Parliamentary Secretary will give us an idea of what he means. Non-compliance is a continuing thing.
Not necessarily. A thing is very often continuing until the person is caught. There might be non-compliance over a period of years before any evidence would come to light. Sometimes it would be discovered for the first time when the person affected became ill. Then, when it is traced back, it may be found that non-compliance has been proceeding over quite a period. If you prosecute only within a period of 12 months you will be completely out of court. I consider it is a useful type of machinery and it ought to meet the circumstances.
I think the types of offences in Part IV, to which the section refers, differ in their nature, but they are clearly defined. It would be reasonable to have the sections looked at and classified from the point of view of the period of time that might be allowed. The section the Parliamentary Secretary proposes to wipe out indicates a kind of formula by which things might be done. He proposes there shall be no limit to the time that will elapse inside which a prosecution could be brought or action could be taken. If he refers to Section 10 (4) of the Act of 1851 he will see:—
"In all cases of summary jurisdiction the complaint shall be made, when it shall relate to the nonpayment of any poor rate, county rate or other public tax, at any time after the date of the warrant authorising the collection of the same, and when it shall relate to the non-payment of money for wages, hire or tuition within one year from the termination of the term or period in respect of which it shall be payable, and when it shall relate to any trespass, within two months from the time when the trespass shall have occurred, and in any other case within six months from the time when the cause of complaint shall have arisen, but not otherwise."
There is a sample of a piece of legislation which takes particular types of offences and, in a reasonable way, marks the period inside which, if action is to be taken, it must be taken. I think it is a slovenly way to wipe out the whole thing and then apply it to cases under various classes of offences. I think it is unreasonable to leave an unlimited period. I think the Parliamentary Secretary should look at this section and replace it with a new section. This is a lazily prepared section. Let him give us a new one, which will differentiate between the various types of offences.
I will circulate an amendment along the lines I have suggested.
That is hardly good enough.
Let me explain a little further. The suggestion I have made does not preclude the operation of the time limit for taking proceedings, but it does provide that if the proceedings are not taken within the prescribed time they cannot be taken unless the Minister issues a certificate. In the ordinary course of events the restrictions that are in the law at present as to time would operate and it is only in exceptional circumstances where the sanitary authority would satisfy the Minister that there was good and sufficient reason for not proceeding within the time that the Minister, having considered the representations, will decide whether he should issue a certificate to enable the prosecution to be taken. I think that is the type of statutory machinery that would adequately and properly meet the situation.
That machinery may work, but in connection with the National Health Insurance Act it applies to a very limited number of types of cases. One is where a person is working, receiving a small wage or allowance, and at the same time is drawing national health benefit. In that case it may or may not come to light within the six months. With that exception, there are practically no cases. It is confined entirely to non-compliance in connection with receiving national health while drawing wages or emoluments.
In this case there is a variety of types of infection and it may not follow that the confined terms of the section of the 1920 National Health Insurance Act will accurately fit the conditions. It can happen that a person has been a source of infection for a time and, probably not knowing that he is such a source, he infects others. If proceedings are to start, there is the difficulty of defining when the person became a source of infection. Comparing that with national health insurance, it is limited entirely to a question of fact, whether the person was receiving insurance while at the same time drawing a salary from a position. I think the Parliamentary Secretary should look into the matter. On the face of it it seems applicable, but I do not know whether it will work out so in practice.
The Parliamentary Secretary has accepted the principle of some statutory limitation, and that is my main concern. My amendment, at the same time, on interpretation, will not create any difficulty, because it mentions within 12 months from the time when the cause of complaint shall have arisen. The cause of complaint could not arise until the offence has been detected or has been reported. It would arise within 12 months of the date of detection or report. That is what I had in mind—some limitation.
Amendment, by leave, withdrawn.
Amendments Nos. 180, 181 and 182 not moved.
Section 37 agreed to.
SECTION 38.
Amendment No. 183 not moved.
I move amendment No. 184:—
To delete lines 37 and 38.
I am moving this amendment for the purpose of getting an explanation from the Parliamentary Secretary as to the necessity for the change that is being made. We have now a new form created by what is known as "combined drain". As far as I can see, the only distinction between what was a drain and what was a sewer is being done away with, and, if that is so, it would seem from Section 39 (1) that a certain responsibility of local authorities in reference to sewers may be diverted from local authorities and imposed upon a private citizen. Generally speaking, I want to get some indication as to the proposed policy in this respect.
I am sure Deputy Coogan will be the first to agree that this is a very technical and a very involved matter. Briefly, the position is that the attempt to distinguish between a drain and a sewer has given rise to endless litigation and confusion. Under the Act of 1878 a drain went from one building or from premises within the same curtilage. Every other drain was a sewer. Within the meaning of the Act sewers were all vested in the sanitary authority which was liable for repairs. In that way, when several houses were drained from what was called a common drain in private property to communicate with the public sewer, the common drain was also a sewer and the sanitary authority was liable for repairs, although it had no responsibility for its construction and design. An attempt was made to remedy that position in the 1890 Act but it was not very successful. Under Section 19 of that Act, where two or more houses belonging to different owners are connected with the public sewer, it is what is called a single private drain, and the sanitary authority could recover from the owners of these houses any expenses incurred by such authority to remedy a nuisance arising from the drain. We had a most complicated position. Under the Act of 1878 we had a drain which applied to one building. If it applied to more than one building it became a sewer, and all sewers were vested in the local authority. Then when several houses were drained through a common drain in private property that was a sewer. Whether they belonged to the one individual or belonged to different individuals the local authority was responsible for maintenance. Section 19 of the Act of 1890 did not remedy the position. It merely gave the local authority power to recover, but added to the confusion of the term. The legal construction set out here is based upon years of experience of the legal difficulties involved in this whole question, and I may say that the legal fraternity thought they had done a very excellent piece of work when they presented this section.
Is that from the point of view of business?
No, from that point of view it was a bad day's work as it sought to get away from a lot of the litigation that we had in the past, and the legal difficulty of determining when, in fact, and under what circumstances, is a drain a sewer. Sections of the law covered by the Acts of 1870 and 1890 are being repealed, and we think we have prevented any doubt with the existing terminology. This is a new plan deliberately set out for the purpose of clarifying an obscure and difficult legal position. There is no other purpose in it, and it comes from men who could reasonably claim to be experts in this particular type of law. They are satisfied that this presents almost foolproof legal machinery.
I am not so sure that the Parliamentary Secretary has succeeded in clarifying the position. I notice that "combined drain means a single private drain used for the drainage of two or more separate premises".
As the Parliamentary Secretary has indicated, this definition in the past gave rise to a number of questions we are still continuing the phraseology "a single private drain". That phrase give rise to a number of questions which, I think, were eventually settled. I cannot say whether it is being improved by what is contained here, as I do not profess to have very good knowledge in these matters. I want to point out that, under Section 25 of the 1878 Act, which is being repealed, and to some extent re-enacted, power was given the sanitary authority to enforce the drainage of houses. "House" was given a very definite meaning. Here we use the word "premises". I take it that the term "house" is being dropped for the purpose of taking in a wider class of premises. "House" was a dwellinghouse and would not relate to a shop or factory. You are now widening the term by dropping "house" and using the word "premises" which lets in a whole lot of new types of buildings not covered by previous Acts.
I foresee, under the provisions of Part V, a situation arising where the local authority may be able to divest itself of its past responsibility and throw this suddenly upon the owners and occupiers of premises of all kinds. For that reason I put down this amendment to see exactly what was intended. I know cases in, say, the Dun Laoghaire Borough where undoubtedly there is necessity for somebody intervening. Under the existing law perhaps nothing could have been done but now, if you open the door as wide as you seem to be doing here, it may mean that the owners and occupiers of houses would have to take over, as it were, a legacy of inaction from the past, and where the local sanitary authority in the past failed to do its job, they could step in now and compel the owner and occupier to do it. That, I think, would be a very harsh provision. It is for that reason that I wanted to get clear as to the implications of these sections.
The point Deputy Coogan has made is one with which I am concerned. According to sub-section (2) of Section 39——
We are not on Section 39 now.
Sorry.
That amendment must go because the whole scheme is founded on the definition of "combined drain".
Amendment, by leave, withdrawn.
Section 38 agreed to.
SECTION 39.
Amendment No. 185 is consequential.
It falls with the other.
I want to direct attention here to the fact that under Section 39, sub-section (2), every combined drain which was immediately before the commencement of this Part of this Act, vested in a sanitary authority by virtue of Section 15 of the 1878 Act shall, on the passing of this Act, cease to be so vested and will presumably become the responsibility of the owner and occupier.
That is so.
Amendment No. 185 not moved.
I move amendment No. 186:—
In sub-section (2), after the word "vested", line 15, to add the following words: "provided that nothing in this sub-section shall be construed as entitling any sanitary authority to impose on any owner or occupier of land or premises within the area of control of such sanitary authority any financial liability or obligation for the maintenance or repair of such drain which before the passing of this Act was the financial liability or obligation of such sanitary authority.
It is clear to my mind from the reading of this section that we will have a wholesale transfer of liabilities from the sanitary authority to the individual house owner or occupier or owner or occupier of business or factory premises and it may lead to a very heavy imposition of charges from the public, as it were, to the private citizen. My amendment is designed to ensure that nothing which was previously the financial responsibility of the sanitary authority shall be transferred from that authority to the private citizen.
I am afraid I could not accept the implications of that. Under Sections 38 and 39 or under this Part of this Act the liability of the private citizen and the liability of the sanitary authority are definitely and specifically set out. It would seem illogical if, under the previous definitions of drain, sewer and combined drain and because of defects in the law, a private person succeeded in having the financial liability for the maintenance of a drain put over on a local authority, that that should continue for all time. If a private person, by combining more than one premises in his little drainage scheme, has succeeded in getting it passed off as a sewer whereas in fact it is a private drain, it seems to me that it is not unreasonable that the sanitary authority should be relieved of the obligation to maintain what should always have been a private responsibility.
If this section is put into operation as it stands at present, it will follow that on a number of people who have not had their premises satisfactorily drained, perhaps partly through their own fault and partly through the fault of the local authority, the responsibility will now devolve of providing satisfactory drainage facilities if the local authority make a drainage order.
That is so.
As long as the shortage of piping continues, that responsibility will be very heavy on private citizens. At the present time even local authorities in many cases are failing to carry out their duties in this respect owing to the shortage of piping and, of course, priority is given to local authorities for the supply of piping, so far as I know. If this section is put into operation immediately some safeguard should be given to citizens who are at present unable to procure the necessary materials in order to comply with the particular requirements.
I will bear the Deputy's point in mind, but, if we are to judge by the indications of the past few weeks, I think they will get substantial breathing space before this section becomes operative.
I suppose they will but they may want it.
The Parliamentary Secretary will appreciate the point I want to make. Under the old law the house or building concerned in all these matters was, roughly speaking, a dwellinghouse.
That is so.
That is, a house either actually used as a residence or dwelling place or capable of being so used.
Yes.
Or, say, several houses under the same roof.
That is so.
That was, roughly speaking, the old law. Now we are widening this to include all classes of premises, in other words, all kinds of buildings whether they are occupied or unoccupied, because the Parliamentary Secretary is dropping the word "house" altogether and the word that is used here is "premises", which will, of course, open the door of liability to every class of premises——
That requires to be drained.
Whether they are habitable or otherwise.
That requires to be drained.
That require drainage, yes. You are opening there a whole host of buildings to these new liabilities and, secondly, you are providing a complete change from the old law. The old law was that where a drain was used for the purpose of draining one building only—a number of accommodations, if you like, all under the one roof and within the same curtilage —that drain could not by any stretch of the imagination become a sewer at any time. It was the private responsibility of the owner or occupier. But now you are getting to a different position altogether, where you provide that a combined drain means a single private drain used for the drainage of two or more separate premises. Under the old law, where such a drain was used for the drainage of two or more separate premises it automatically became a sewer and the liability for the drainage and the removal of nuisance, and all that sort of thing, in relation to that drain was on the sanitary authority. Now that is being definitely transferred to the private owner or occupier and I have put down this amendment largely to direct attention to that fact.
It is deliberate policy.
I know it is deliberate policy but what I have most to fear in this is, if a local authority in the past, over a long period of time has been neglectful in its duty and if these particular provisions were not enforced, they may suddenly become very energetic now and, having rid themselves of financial responsibility, may proceed to compel John Citizen to do a thing which they would not do themselves in the past and, incidentally, mulct him in very heavy expense.
Mr. Brennan
I feel inclined to agree with Deputy Coogan on this question of responsibility for a combined drain. Where you have a number of houses connected to what I call a combined subsidiary drain to the main drainage scheme, I think that the responsibility for keeping that combined subsidiary drain in proper working order should be on the sanitary authority. The Parliamentary Secretary states that heretofore it was their responsibility and under this Bill he proposes to relieve them of that responsibility. I think it is fair to assume that he is throwing the responsibility on the sanitary authority, at the same time, to see that the occupiers of the houses, whose sanitation is provided for by that drain, will be responsible for keeping the drain in order and that, if they do not do it, the sanitary authority will recoup themselves from those people for the cost of keeping that drain in order. The real snag I see in it is this. You have, we will say, a number of houses, one to 12. For some reason or other, it is decided to connect all these houses to a combined drain 40 or 50 feet from the backs of the houses, each house having its own independent connection. That combined drain eventually enters the main sewer through a manhole. If that combined drain gets choked, the man in charge of the sewerage system for that particular area, when it is reported to him, comes along and proceeds immediately to take steps to have it cleaned from one manhole to another. I take it that the sanitary authority's responsibility is to see that they are recouped by the owners of those 12 houses for the cleaning of that drain. The real point is: who is the culprit in the case? You have 12 families living in 12 different houses made up of different types of people. Some of them may be careless. I can assure you that there are a great many careless people so far as drains are concerned. It is a handy way of disposing of a lot of things. If that is done, the other 11 people will have to pay for the cost of cleaning that drain, the choking of which was caused by one individual. The probability is that he is the individual who will kick up a row about paying.
That is not in the Bill at all.
Mr. Brennan
You were speaking of a combined drain.
That cannot occur under the proposed legislation.
Mr. Brennan
My point is that combined drains heretofore were the responsibility of the local authority. If they have to recoup themselves in future for the cost of cleaning a combined drain, they will find great difficulty in doing so. I think that should be obvious. For that reason, I suggest to the Parliamentary Secretary that the local authority should be held responsible for combined drains.
Might I make one point which may, perhaps, clear up the confusion? I thought I made it clear. I grant you that it is complicated and very difficult to follow. Under the law at the present time, if a man who owns one house makes his own drain and comes along a certain distance, a maximum of 100 feet, and connects it with the main sewer, he is responsible for the maintenance of that drain. Is that clear?
Mr. Brennan
From his own house?
From his own house. But if he happens to own two or three houses and drains the three, or more than one, jointly, the sanitary authority, otherwise the ratepayers, because of the fact that he has more than one house, are to maintain that drain for him. I do not think that is right just because of the fact that he has more than one house. Under this structure here, the 12 tenants in the 12 separate houses referred to are not going to be held responsible. That cannot occur. But if it is a private drain, constructed and maintained by a private person without any consultation with the sanitary authority, the sanitary authority, which means the ratepayers, should not be called upon to maintain that private drain for the owner of that terrace of houses.
I should like to continue on the instance that the Parliamentary Secretary has given. Supposing a builder builds a house and connects the drain to the public sewer, as he would have to do in order to dispose of the drainage. Then he comes along and builds a second house. He thinks it is a long run to the main sewer and that if he puts a manhole at the junction he can run the drainage of two houses down that drain. Then assume that he builds a third house and thinks the scheme is working very well and puts the drainage of that house into the combined drain, or whatever you like to call it, and it goes down to the sewer. Now, he sells out to other people and I am afraid that a great many people are not gifted with second sense as to where drains go. They look at a house and say that it would suit them. At present, they have not much choice and they say: "We will fit into this place." There are three separate owners. The case made is that the public authority should, at a certain stage, have said: "There ought to be separate sewerage for each of those three houses draining into our main sewer." That has been left over for a number of years. A drain might even have become defective. It is most unfair—I think this is what Deputy Coogan is trying to get at—that those people, after the lapse of many years, should be prodded up and told to provide a drain into the main sewer. If the public authority were content to let sleeping dogs lie, it is most unfair that, at this stage, the owners should be compelled to put in a new drainage system for the public authority.
Question—"That the words proposed to be added be there added"— put and negatived.
Sections 39 to 42 agreed to.
SECTION 43.
Question proposed: "That Section 43 stand part of the Bill."
Did the Parliamentary Secretary consider the advisability of including water in this section? The section applies only to drainage.
We shall meet the water in Part VI.
Question put and agreed to.
SECTION 44.
I move amendment No. 187:—
Before Section 44 to insert a new section as follows:—
(1) Where the owner or occupier of any premises requests the sanitary authority to connect such premises with an existing system the sanitary authority shall connect the premises and may take all appropriate measures to execute or complete such drainage works.
(2) Where the owner or occupier of any premises requires the making of a system for any premises and the total length of the drains in the system exceeds 100 feet, the sanitary authority shall themselves make every portion of the system which is more than 100 feet (measured along the system) from such premises.
As the section stands, the sanitary authority can compel an owner to connect his premises with an existing drainage system. There is provision for the making of that system and any portion in excess of 100 feet may be made by the sanitary authority. I know a place where a property owner wanted to connect either an existing property with the drainage system or erect houses on a portion of ground which was some distance from the existing drainage system. When application was made to the local authority, it failed to co-operate and made no attempt to assist in the extension of the drainage system. If this amendment is accepted, an individual may request the local authority to connect his house or premises with the drainage system and, on that being done, the local authority shall connect the premises. The amendment is, I think, desirable. It applies particularly to undeveloped areas. On the outskirts of small towns in County Dublin, a builder may wish to erect houses on a site some distance from the existing drainage system. The local authority oftentimes fails to give permission for the erection of a cesspool or tank in these cases, on the ground that it would be detrimental to the public health. Unless they are prepared to give such permission, they should co-operate with builders and private individuals who wish to erect houses and connect those houses with the existing drainage system.
The acceptance of this amendment might have far-reaching repercussions. There are two points in the amendment and both are objectionable. Sub-section (1) of the amendment puts a statutory obligation on the sanitary authority to provide a drainage system. Surely, the sanitary authority should have some discretion in the matter. It will be primarily responsible for the public health of the district and, in the ordinary course of affairs, such authority would show anxiety to provide proper facilities within its sanitary district. To give the sanitary authority no option in the matter, regardless of the circumstances, would be going rather far. In sub-section (2) we get into greater difficulty, because it is proposed to put a statutory obligation on the sanitary authority to make so much of the system as exceeds 100 feet from the premises. The premises might be a very long distance, indeed, from the public sewerage system and we might be putting a statutory obligation on the sanitary authority to make a sewer half a mile long. Clearly, it would be undesirable to do that. I do not think that the Deputy would be well advised to press this amendment. On reflection, he will, I think, agree that it would unduly interfere with the discretion which a sanitary authority should have vested in it in ordinary circumstances. In fact it would leave them no discretion at all.
I had some difficulty in drafting this amendment. As the Parliamentary Secretary has said, it opens the door very widely but I have knowledge at the moment of a couple of cases in which builders were held up in this way. One has land at Dalkey and Killiney and wants to connect the existing system which, though not adjacent, is quite near and the local authority in that particular case would not co-operate. While the amendment as it is framed at the moment would put a statutory obligation on the local authority to make the connection, no matter how far away, if the Minister would consider amending the section so as to provide that where the distance to be covered did not exceed 200 or 300 feet, the connection should be made by the local authority, it would meet my case. I merely want to provide that where the local authority's system is near a proposed development scheme, it should co-operate and make portion of the system at any rate. In a number of these cases, builders have been held up for a considerable time.
I have on the other hand, knowledge of another case in which the local authority and the builder have been able to come to terms. In that case the local authority are prepared to make portion of the system because they will be draining at the same time some cottages which are the property of the local authority. A number of builders have experienced difficulty in these matters, and I think that, subject to a maximum length, the authority should be obliged to provide the necessary connection, particularly in view of the fact that Section 43 gives power to the local authority to compel a private individual to connect his premises. Portion of this amendment is actually copied from that section. If the sanitary authority is to have power to compel private individuals in this way, on the other hand where a private individual wishes to drain his premises, the sanitary authority should provide him with similar facilities.
The private individual has only to go 100 feet.
Will the Parliamentary Secretary accept an amendment like that?
The Deputy should not seek to tie me down. I think the whole principle is unsound. I also think that the type of difficulty which the Deputy has in mind could be dealt with administratively. In the ordinary course, unless there is a special reason, the sanitary authority should be accommodating. The particular case the Deputy mentions, I presume, refers to more than one premises?
Yes, to a number of houses.
Unless the local authority had very sound reasons for not cooperating, the local authority would, in such circumstances, be pressed to co-operate. I think it would be better to deal with the difficulty administratively than to try to impose a statutory obligation on the sanitary authority. Apart from the actual distance mentioned a few moments ago, which might constitute a difficulty for the local authority, there is, as the Deputy will see at once, the question of the possible configuration of the district —topographical difficulties. You might be very near to the private drain and yet because of the intervention of rock you might not be able to make the connection. You can scarcely introduce a statutory obligation in relation to that. In ordinary circumstances the Deputy's difficulty ought to be met in an administrative way.
Amendment, by leave, withdrawn.
Amendment No. 188 not moved.
Sections 44 and 45 agreed to.
Amendments Nos. 189 to 191, inclusive, not moved.
Sections 46 to 51, inclusive, agreed to.
Amendment No. 192 not moved.
Section 52 agreed to.
Amendments Nos. 193 to 195 not moved.
Sections 53 and 54 agreed to.
SECTION 55.
I move amendment No. 196:—
Before Section 55, to insert a new section as follows:—
(1) A sanitary authority may take samples of water from any water supply (whether public or private) serving any inhabitants of their sanitary district for the purpose of the analysis of such samples.
(2) Where on analysis of samples of water taken by a sanitary authority under this section from a water supply, it is found that the water is unfit for human consumption the sanitary authority shall take all reasonable steps to warn users of the water supply that the water therefrom is unfit for human consumption.
(3) Any officer, servant or agent of a sanitary authority may enter on any land for the purposes of this section.
We had some discussion on this section on Second Reading. The main purpose of the section is to enable sanitary authorities to take samples of water from private water supplies for analysis. We have statutory power to take samples from public water supplies, and we desire power to take samples from private supplies, from wells in rural Ireland more particularly. There is some doubt at the moment as to whether there is statutory power to take samples from private supplies for analysis.
Amendment agreed to.
Amendment No. 197 not moved.
Section 55 agreed to.
SECTION 56.
I move amendment No. 198 on behalf of Deputy McGilligan:—
In sub-section (1), line 36, to delete the words "in particular".
The purpose of the amendment is to restrict the sanitary authority from making by-laws in accordance with the provisions of the Third Schedule. The words "in particular" would suggest that the sanitary authority was being given wider powers than those contained in sub-section (1) of Section 56 to make by-laws. The purpose of the amendment is to cut down the powers of the sanitary authority as to the matters upon which they may make by-laws by excluding the words "in particular".
We have met these words pretty often during the past few weeks, and I suppose some of us are getting rather tired of them. This is merely a precautionary provision to ensure that the sanitary authority will not be explicitly tied down to the matters that are recited in the Schedule. Deputies will observe in the Third Schedule the matters in respect of which provision is made for the making of by-laws. Now, it might be safe enough to assume that all the matters in respect to which the sanitary authority would require to make by-laws are listed under the five headings set out in the Third Schedule, but there is always the possibility, with a change in circumstances, that some new, and unforeseen, circumstances might arise. If the sanitary authority were confined, in its power of making by-laws, to the matters set out under these five headings, it could not make by-laws to cover any new contingency that it might encounter.
I could, I suppose, score some debating points off the Opposition now if I were to remind them that it is the elected members of a local authority who will make the by-laws. That is a reserved function. I find myself in the rather embarrassing position that while trying to extend the powers of the elected representatives of the people, I am being asked by the Opposition not to do so. I do not intend to rub that in since we are getting on so nicely. It would be a pity to spoil the present atmosphere. The Opposition, however, could not expect me to pass over that interesting development without making reference to it.
It was accidental.
Do the tinkers come under this?
We are coming right up to the tinkers now.
I hope to be on the right side with the tinkers.
I am sure the Deputy has observed that the king of that tribe is a namesake of mine.
There is just this point, that if the sanitary authority is not given specific powers to make specific by-laws—in other words, if it is not given power to add to the Third Schedule any by-law other than those for which specific power is given—its action, if it should do so, might be held to be ultra vires.
I will have the point looked into.
Amendment, by leave, withdrawn.
Section 56 agreed to.
SECTION 57.
Amendment No. 199 not moved.
I move amendment No. 200:—
In sub-section (9), to insert in line 47, before the word "newspaper" the word "daily", to insert in line 48 before the word "to" the words "conferred by this section" and to delete in line 49 the words "conferred by this section".
The amendment is to provide that where a sanitary authority makes an order under this section it shall, within 14 days after the order is made, cause to be published in a daily newspaper circulating in the sanitary district, a copy of the order. It was represented to me by representatives of camping organisations that publication in a local newspaper might not just meet the requirements of the position, inasmuch as prospective campers living at a distance might never see the local papers. Acting on their suggestion, I am proposing that the publication shall take place in a daily paper. There are later amendments which aim, I think, at publication in one or more papers. I think the House might accept this particular amendment. We can deal with the others later.
Amendment agreed to.
Amendment No. 201 not moved.
I move amendment No. 202:—
In sub-section (10), page 30, line 53, to insert before the word "newspaper" the word "daily."
Amendment agreed to.
Amendment No. 203 not moved.
I move amendment No. 204:—
In sub-section (10), page 30, line 54, to insert after the word "order" the following:—
"(as made by the sanitary authority or as confirmed by the Minister, whichever is appropriate)"
Amendment agreed to.
Section 57, as amended, agreed to.
Section 58 agreed to.
Amendment No. 205 not moved.
Section 59 agreed to.
SECTION 60.
I move amendment No. 206:
In sub-section (5), to delete in page 31, lines 43 and 44, the words "A licence may be granted under this section in relation to land subject to specified conditions with respect to any" and substitute the words "Where a licence is granted under this section by a sanitary authority in relation to land, the sanitary authority shall attach to the licence specified conditions with respect to all" and to delete paragraph (1), page 32, lines 9 and 10, and substitute the following paragraph:—
(1) the supervision of temporary dwellings on the land (including, where necessary in the opinion of the sanitary authority, the employment of a warden for that purpose).
The terms of sub-section (5) would enable a sanitary authority to grant a licence in relation to land for camping subject to conditions with respect to any of the matters set out in the sub-section. It is considered that the licence should only be granted subject to all the conditions set out there. The contention is that these conditions should apply to any licence. In fact, the wording was open to the interpretation that if one of the conditions attached to the licence it might be sufficient. There are a couple of other points that I can deal with on Report Stage. Deputy Cosgrave is interested in this. The scout organisations are of opinion that the 14 days' period appears to be rather short, and are anxious to get three week-ends. On the Report Stage I propose extending the 14 days to 18 days. That will give them three week-ends, with one day for coming and one day for going. There are other proposals from the scout representatives that I intend to look into further with a view to amendment on Report Stage. You have the type of difficulty that was mentioned in the course of our earlier discussions: that a scouting organisation might be presented with a camping site, and that the owner of the camping site might not bother about, and might not be interested himself in securing, a licence—while he would have no objection to scout organisations camping on his site and perhaps would give the site free, he probably would not take the initiative. I am anxious to provide if I can—it is purely a matter of drafting—that scout organisations, or recognised camping societies or associations, might themselves be empowered to secure a licence for a site which they had either rented or otherwise secured. I merely want to mention it at this stage, so that when we come to Report Stage I will not be open to criticism on the ground of introducing something new.
There is another matter which is not strictly provided for in the Bill, but which I think is germane to it. I raised it on the Forestry Bill—the matter of damage done by accidental fires in the Dublin mountains and other parts of the country. It applies particularly to brushwood and gorse in mountain areas near towns from which trippers go out at week-ends or on Sundays. Campers under scout organisations or other recognised associations take adequate precautions, but very often groups who go out on bank holidays or at week-ends leave behind them the remains of the fires on which they cooked their meals, and these fires flare up and cause considerable damage. Large tracts of forest land and gorse on the Dublin mountains have been burned at various times. On the Forestry Bill, the Minister for Lands said it could not be provided for in that Bill, and I think the Parliamentary Secretary should consider the point before Report Stage, because representations have been made to me that, in cases where these fires are started accidentally, no compensation is payable. It is not so much a question of compensation as of preventing these occurrences.
I realise the advisability of trying to deal with the matter raised by Deputy Cosgrave, but I do not know how it can be provided for in the Bill. I will have it examined, but I have not got much hope of being able to provide any machinery to deal with it. In so far as Section 60 is concerned, arising out of our discussions and the amendments already incorporated, some further amendments will be necessary on Report. There is no provision in the section for the cancellation of a licence, and it struck me, on closer examination of the section, that it might not be necessary to have the 12 months' limitation with a requirement to renew a licence every 12 months. If the site is satisfactory and properly developed, and if it is once licensed and there is power to cancel if the people who camp on it are not complying with the law, it ought not to be necessary to insist on the annual renewal. However, we may give some further thought to these matters and they will arise again on Report Stage.
Amendment agreed to.
I move amendment No. 207:—
Before sub-section (6), to insert the following new sub-sections:—
(6) Where a person applies to a sanitary authority for a licence under this section and such person is aggrieved by—
(a) the refusal of the sanitary authority to grant the licence, or
(b) a condition attached to the licence by the sanitary authority,
such person may object to such refusal or condition by giving notice in that behalf to the Minister within 30 days after the day on which the grant of the licence was refused or the licence was granted subject to such condition (as the case may be) and the notice shall be in writing and shall contain a statement of the grounds of such objection.
(7) Where a notice of objection in relation to a refusal to grant a licence under this section or to a condition attached to any such licence is given under this section, the Minister, after consideration of the objection and after consultation with the sanitary authority concerned, shall either reject the objection or direct the sanitary authority (who shall comply with such direction) to grant the licence refused or to vary in a specified manner the condition objected to (as may be appropriate).
The object of this amendment is to provide a right of appeal to the Minister in case of a refusal by a sanitary authority of a licence under Section 60, or where a condition is attached by a sanitary authority to the licence, which condition is considered by the person aggrieved to be too onerous. The amendment has the effect of providing appeal machinery.
Amendment agreed to.
Amendment No. 208 not moved.
I move amendment No. 209:—
In sub-section (8), line 33, after the word "household" to insert the word "or" and after paragraph (b) to insert a new paragraph as follows:—
(c) if the land is occupied by members of a lawful youth organisation whose objects, rules and camping regulations are approved by the Minister, and the camping is carried on under the approved camping regulations of such organisations and under the supervision of its lawfully appointed officers and the sanitary authority, having inspected the camping place, have approved of the camping arrangements and have satisfied themselves of the adequacy of the supervision to be exercised by such officers.
The point was mentioned already by the Parliamentary Secretary that scout organisations appear to have considerable difficulty in this matter of licences, and it was put to me that it would be better if some procedure could be instituted by which the Minister would license such organisations, in the first place, would approve of their general rules and particularly their camping rules. As all these organisations have properly appointed officers, including medical and sanitary officers, it is scarcely necessary to apply to these organisations the provisions which are being made to apply to indiscriminate campers. I think there is something to be said for that viewpoint. I have no personal interest in the matter; it was at the suggestion of one of the leaders of one of the Catholic Scout organisations that I put down the amendment. I understood the Parliamentary Secretary to say he was considering some special provision for these organisations and perhaps he would cover what I have in mind on Report Stage. The idea was that, if these organisations can satisfy the Minister with regard to their general rules and regulations for camping, it ought to be sufficient to exempt them from having to apply to the local authority in every case.
The provision which I mentioned earlier on with regard to special facilities for camping organisations do not run altogether parallel with the provision in the amendment. The amendment suggests that certain lawful youth organisations, whose objects, rules and camping regulations are approved by the Minister should, in fact, be exempt from the requirement of securing a licence. No doubt the camping organisations which the Deputy has in mind will observe high standards of hygiene and sanitation and, presumably, high standards of conduct, and I personally have not got any anxiety under any of these headings; but, at the same time, when we have placed a statutory requirement on people who do not belong to these organisations to secure a licence for a camping site, it seems to me that it is better, notwithstanding the fact that we have no doubt as to their high standards, that they should comply with the law the same as any other private citizen. The amendment I have in mind, and which I have already mentioned, which would empower scouting organisations or camping organisations themselves to secure a licence, will probably meet any difficulty those organisations have in mind. However, I would prefer not to place the sanitary authority in the position that these people were taken completely out of their control, if one might put it that way, and granted exemption by the Minister. I think it is better that they should go through the formality of securing their licence from the local authority; and if we can provide them with the right to license a site they do not own but which has been presented to them, perhaps without remuneration, by someone interested in providing such facilities, I think it will go a long way, and perhaps the whole way, to meet the difficulty.
Amendment, by leave, withdrawn.
Amendment No. 210 not moved.
I move amendment No. 211:—
At the end of the section to insert the following sub-section:—
( ) For the purposes of this section—
(a) the owner of land which is not let shall be deemed to be the occupier thereof;
(b) if a temporary dwelling is removed from the site on which it stands, but within 48 hours is brought back to the same site or another site within 100 yards thereof, then for the purpose of reckoning any such period of 14 consecutive days as is mentioned in sub-section (6) of this section, it shall be deemed not to have been removed.
Paragraph (a) is intended to deal with the case in which land intended for use for camping is in the possession of the owner and is not let to an occupier. Paragraph (b) is intended to deal with any attempt on the part of a person using a movable temporary dwelling to extend the concession granted under sub-section (6) of land for camping being allowed to be used for 14 consecutive days without the occupier thereof being the holder of a licence by removing the temporary dwelling to some other site for 48 hours—or a shorter period—and then bringing the dwelling back again to the original site. It is merely a machinery amendment and does not introduce any new principle.
Amendment agreed to.
Section 60, as amended, agreed to.
AMENDMENTS TO SECTIONS 61 TO 113 AND SCHEDULES.
SECTION 61.
I move amendment No. 1:—
In sub-section (1) (c), before the word "and" in line 3, to insert the words "safety-lockers for the safekeeping of bathers' clothing, money and valuables".
Having regard to the experience we have had in Dun Laoghaire, it is desirable that a specific duty should be imposed upon the local authority to take certain steps for safeguarding the personal property of bathers. There is a loose system in operation at the moment, but it is not at all adequate, particularly on holidays when there is a rush of people. What I have in mind is something on the Continental system, whereby each bather would be given a safety locker or box. These are usually inserted at the back of the bather's cubicle. It is open there when he arrives in his cubicle to undress and he is given an armlet or ringlet bearing a number which corresponds with the number on the locker. He wears that while he is bathing. The locker or box is taken away and the local authority is responsible for the contents while the bather is absent bathing. I feel we want some system of that kind, particularly in Dun Laoghaire and Blackrock, where, from my personal knowledge over a long period of years, I know there have been many larcenies of money and valuables. I know that in many of those cases the victims were visitors to this country and it created a very bad impression on them, when they went down to have a dip, to find their valuables—passports, in one case; watches, jewellery and other valuables in others—were gone on their return. There is a loose system whereby you can dispose of articles of jewellery, but even articles of clothing are being pilfered at the moment. When we are making these provisions, I think we should make a provision for the safe keeping of bathers' property by some method of that kind. I instanced this particular method, as it is foolproof and works very well elsewhere. Under the present loose system, it is almost impossible to fix responsibility once a larceny occurs and it is hopeless to try to trace the individual concerned.
There is no doubt as to the desirability of making the provision that Deputy Coogan has in mind and the only matter at issue is whether the section provides the necessary machinery within which safety lockers for the safe keeping of bathers' clothing, money and valuables may be provided by a sanitary authority. Under paragraph (c) of sub-section (1) of this section, the sanitary authority may provide and maintain conveniences for bathers, including, in particular, dressing accommodation and sanitary conveniences. It is suggested that "conveniences" would include the possible provision of safety lockers. If it is necessary to mention them specifically, I have no objection at all to doing so, notwithstanding the fact that it is held to be included in that wide term "conveniences". I agree unhesitatingly that such provision is more essential than most of the other provisions mentioned there. I will look into the point and will circulate an amendment, as even if such safety lockers are included in the general term, I think it will be better to mention them specifically.
Amendment, by leave, withdrawn.
I move amendment No. 2:—
In sub-section (1), page 33, line 3, to delete the words "and sanitary conveniences" and substitute the words ", sanitary conveniences, shower baths, first aid equipment and refreshments".
This merely expands paragraph (c) to make "sanitary conveniences" include shower baths, first-aid equipment and refreshments. It is a further extension of the facilities and amenities a sanitary authority may provide.
Amendment agreed to.
I move amendment No. 3:—
Before sub-section (2) to insert a new sub-section as follows:—
(2) Where a sanitary authority maintain a washhouse, they may provide thereat facilities for drying and ironing clothes and other articles.
It is desirable that modern appliances for drying and ironing clothes and other articles should be available at public washhouses. This amendment applies to the facilities which would be provided.
May I ask if the public authority may do so free of charge? Section 62 says that a sanitary authority may make charges for the use of a public washhouse. I have in mind the washhouse where the working-class element assemble for the purpose of washing clothes publicly. There is a small charge for hot water and soap. It is quite possible that a very poor person might not be able to pay the couple of pence required for that and it is not made clear here that the public authority shall have power to admit poor persons free of charge. It is a small point, but I would like the Parliamentary Secretary to give the public authority power to admit free of charge persons desiring to go into a public washhouse to avail of the hot water and soap and the use of the drying appliances. I have genuine knowledge of cases where persons on more than one occasion were not able to provide the soap or pay for it. In view of the public health and the talk about cleanliness, I think this would be an opportunity to allow people to go to those washhouses whether they had the couple of pence or not. I have in mind the washhouses in Dublin.
The sanitary authority is merely being authorised—it is a permissive power—to make a charge. They are not under a statutory obligation to make such charge. If that is not sufficiently clear, I will have it examined to see if it is, beyond question, the interpretation of the law. That is my interpretation of it at the moment.
If the desire is to place the facilities at the disposal of any section of the community free of charge, they have full statutory authority to do that. Clearly, in such circumstances as the Deputy recites, it is desirable that the facilities should be free of charge. A sanitary authority may, on the other hand—and it is entirely a matter for the sanitary authority— feel that a nominal charge may be necessary for certain disciplinary reasons, to prevent overcrowding and things of that type. The point I wish to emphasise as strongly as I can is, that the power is a permissive power and they are not bound by law to make a charge.
I can assume if a case like what I have in mind occurs again, and the person is not able to pay or provide the necessary soap, the officer in charge of the washhouse will not be told that he, or somebody that he represents, will be surcharged. I leave it to the Parliamentary Secretary to make it clearer between this and the Report Stage. It is really very essential. I thank the Parliamentary Secretary for his statement.
Amendment agreed to.
I move amendment No. 4:—
To add at the end of the section a new sub-section as follows:—
(4) A bath, swimming bath, bathing place, convenience for bathers, or washhouse which is at the commencement of this section maintained by a sanitary authority shall be deemed to have been provided under this section by that authority.
The purpose of this amendment is to apply to existing baths, swimming baths, bathing places, conveniences for bathers and washhouses, the powers granted to a sanitary authority under the Bill.
Amendment agreed to.
Question proposed: "That Section 61, as amended, stand part of the Bill."
I think this section should put a statutory responsibility on the local authority to provide swimming pools and washing facilities. Large schemes, such as the Crumlin and Kimmage scheme—there are other schemes, but that is the one I have particular acquaintance with—were built without any provision being made for swimming baths or washhouse facilities. While this is probably a wider question, I think opinion is now strongly in favour of smaller communities than the one, say, at Crumlin. Such a big scheme as that has numerous drawbacks. It lacks any identity or character of its own, except perhaps its size. However, that is a matter for another occasion.
In this section provision is being made for swimming pools and bathing places. It is an extraordinary fact that Dublin has the same number of swimming baths to-day as it had 40 years ago. We still have the Tara Street Baths and the Iveagh Baths. As far as I am aware, the Iveagh Baths are at present taken over for the treatment of people suffering from scabies. I am not sure if that is actually so, but they were for a time devoted to that purpose. In an area like Crumlin, or any of these areas a long distance from the sea, bathing pools are essential. Even if the children could afford to travel across the city to the sea, their parents are in the dilemma that they have no one to go with them, travelling such a long journey. The section should put a statutory responsibility on the local authority to provide these facilities.
It is true to say that in a number of these housing schemes no provision is made for playgrounds either. I think a swimming bath and a playground are essential in any such scheme and, for the future, it should be a statutory responsibility to make these facilities available.
Deputy Cosgrave will scarcely expect me to introduce an amendment on Report Stage making it mandatory on local authorities to provide swimming baths. I do not quarrel with him as to the desirability of making more extensive provision by way of public baths and swimming pools, but I am rather afraid that if I had introduced a mandatory power into Section 61 and had made it obligatory on the local authorities to incur expenditure, providing swimming baths and public bathing places, I would have been open to criticism by the Opposition Party. They gave me what some people consider a pretty bad time, though I did not feel it so much in that way, in connection with mandatory or compulsory powers in relation to the provision of hospitals and other such institutions. Various unpleasant suggestions were made about taking the last vestige of authority from the local authorities and there were suggestions about dictatorship and so on. Fortunately, we have got away from that; but we have gone the full cycle, and now it is suggested to me that I should exercise the same type of dictatorship in relation to public baths and bathing pools that I was so severely criticised for exercising in relation to essential institutions for the treatment of infectious diseases. That does not seem consistent, and while I do not doubt for a moment the sincerity of Deputy Cosgrave in the matter, what he said does not carry with it a lot of conviction.
I hope that sanitary authorities will, in fact, avail of their permissive powers to make greater and better provision of the type contemplated under Section 61, but I would prefer not to make it compulsory or mandatory upon them, seeing that we are making so many other matters under this Bill mandatory upon them in case they fail to provide the necessary institution and accommodation and equipment of their own accord.
Question agreed to.
Section 62 agreed to.
I move amendment No. 5:
To delete sub-sections (1) and (2) and substitute the following sub-sections:—
(1) A sanitary authority may employ one or more than one lifeguard at—
(a) a bathing place or swimming bath maintained by them, or
(b) a bathing place or swimming bath situate in their sanitary district to which the public are admitted free of charge and which is maintained neither by them, by any other sanitary authority nor by the commissioners of any town.
(2) A sanitary authority may provide and maintain equipment and appliances for saving persons from drowning at—
(a) a bathing place or swimming bath maintained by them,
(b) a bathing place or swimming bath situate in their sanitary district to which the public are admitted free of charge and which is maintained neither by them, by any other sanitary authority nor by the commissioners of any town, or
(c) any place situate in their sanitary district which is not a bathing place or swimming bath.
This provision would authorise a sanitary authority to employ lifeguards at a bathing place or swimming bath maintained by that sanitary authority. It seems desirable that they should have power to provide and maintain lifeguards outside their own area. Take the City of Dublin, for example. Dublin Corporation, probably, will require such statutory power in connection with some of the seaside resorts convenient to the city, but yet not within the area of jurisdiction of the corporation.
Amendment agreed to.
Question proposed: "That Section 63, as amended, stand part of the Bill."
I am very glad that this statutory permission is to be given to local authorities in the City of Dublin to employ lifeguards at various beaches. In Dun Laoghaire it was felt that there was a difficulty about paying lifeguards. I am glad to see this section included in the Bill to give such power to local authorities and I hope they will avail of it, as it might mean the saving of a number of lives.
Question put and agreed to.
Sections 64, 65 and 66 agreed to.
SECTION 67.
I move amendment No. 6:—
In sub-section (1), lines 15-16, to delete the words "in particular".
I put down this amendment merely to call attention to the fact that the section allows by-laws not merely in relation to the matters referred to in the Fourth Schedule but in relation to anything else. Why cannot it be confined to what is in the Fourth Schedule and, if necessary, enlarge it? It details the prohibition of public bathing, the regulation of the manner in which bathing machines may be used, and the regulation of the conduct of persons resorting to any area and even the bathing togs that may be used? What else is wanted?
It is difficult to envisage what else may arise, and I can only say in defence of the section that it was intended to provide for a contingency that cannot be clearly envisaged. The by-laws are subject to Ministerial sanction, and I do not think that anything of an extraordinary nature will be incorporated in them. No great advance defence can be made for the phrasing, and I do not think any great case can be made for the deletion of these words. The section merely gives unlimited power, in addition to what is set out in the Fourth Schedule, to make by-laws in respect to matters that cannot be foreseen. It may be unnecessary, and it is unlikely to be abused. I have no very strong views but I think it is better to leave the words there.
Why have the Schedule at all?
The Schedule is intended to draw particular attention to the matters in respect of which by-laws ought to be provided. The words "in particular" are put in, in the event of something having been overlooked and arising in the future.
The widest scope could be given by stopping the sub-section at line 15.
That is so. Particular attention is drawn to some matters.
You are drawing particular attention to it by prohibition. This is a sort of kill-joy Schedule.
It might in certain areas work out in that way. It is keeping a fatherly eye there.
In fact it is grandmotherliness.
Amendment, by leave, withdrawn.
Question proposed: "That Section 67 stand part of the Bill."
Deputy McGilligan referred to the Schedule as being a kill-joy one. I quite agree with that. Paragraph 10 of the Schedule places a restriction in regard to undressing on boys under six. I know that some age has to be fixed but boys six years old would be incapable of dressing themselves, if segregated from families. They would require the assistance of their mothers or some other person who would be in charge of them. When bathing it might be dangerous to put them on a different part of the beach. The effect would be to limit the amount of bathing that small boys do, and that would be unfortunate. It all depends on the manner in which the Schedule would be interpreted. As the section stands it seems to prohibit the present arrangement which does not give any annoyance. I have been bathing on beaches all my life, and I have never been shocked when I have seen small boys bathing.
Would the Parliamentary Secretary consider excluding children in charge of parents or guardians? Many mothers bring their children to Dollymount, Sandymount, Merrion, Portmarnock, Bray, and undress them when they are going to bathe. Anybody who would be shocked by seeing a child of ten years of age undressing should not be on the beach. I do not think we should embarrass mothers of large families who bring them out for an outing, by having to enforce the provisions of this section.
I might point out to Deputies who are particularly interested in this section and in the Schedule, that we have not introduced an innovation. Part of the law governing the matter will be found in Schedule A of the Baths and Washhouses (Ireland) Act, 1846.
I thought we had moved on.
It was the Act of 1851, and now we are going back.
We are going back.
This is a centenary section.
Exactly 1846. Section 77 of the Towns Improvement (Ireland) Act, 1854, also makes reference to conditions in relation to this matter. Under the law at present the position can be dealt with in this way, as the provisions of the Act of 1846 include one for securing that men and boys above eight years old shall bathe separately from women and girls and children under eight years of age. 100 years ago eight years was considered to be the proper age limit. As to how far and in what direction we have developed in the past 100 years would form a subject for very interesting discussion but I might point out to Deputy Byrne two things at least: In the first place, the by-laws will be made by the local authority, not by the Minister and, secondly, it is a reserved function, that he himself will have a hand in it. The by-laws are subject to sanction. So that I think, between Deputy Byrne on the outside and the Minister on the inside, we ought to be able to secure that there will be nothing incorporated in the by-laws that is highly objectionable. Personally I do not see any reason why, within the terms of paragraph 10 of the Fourth Schedule, it should not be possible to provide that mothers may be present with their six-year old children. It says, "the reservation of areas for undressing and dressing by boys under six years of age and families" but it does not say that the by-laws must not include any provision regarding a person who may accompany children over six years of age. However, I think the position is fairly fully safeguarded, first by the fact that we may presume, I hope, that the elected members of the local authority will act in a very responsible way, and we have the other safeguard that, if they should slip up seriously, the Minister will see that they do not do anything that is very foolish.
Will the Parliamentary Secretary say, in the light of his last remark, that the Minister will see that they do not do anything foolish, where has the Minister any power of control of the sanitary authorities in relation to these matters?
The by-laws are subject to sanction—subject to the approval of the Minister.
I see. So that, in so far as local authorities had complete liberty under the 1846 Act, none of the liberties that they had under that Act is being taken away from them in this?
No.
If I interpret the Parliamentary Secretary's mind— which is a dangerous experiment—I think he has told us that we have complete power not to adopt the Fourth Schedule to this Act.
Surely.
And I think he has thrown out a hint almost that that is what we ought to do.
The Parliamentary Secretary's feeling is that this is the only way he had of restricting local authorities, that is restricting them by suggestion.
Is the Parliamentary Secretary not insisting or is there nothing in the Schedule to state that a local authority must provide places for people to dress or undress?
No.
Will the Parliamentary Secretary say that it is not going to affect those hundreds of thousands of people who go to the seaside with their bathing togs on under their ordinary clothes, that he is not going to have somebody watching these people undressing, almost in the open, before other bathers? From Sandymount to Dun Laoghaire along the railway wall I have seen thousands of Dublin cyclists. Is it possible, under this Bill, that a Gárda or an official of the railway company could come along and say to those people: "You are undressing in an unauthorised place"? I want to know what is the position concerning these people. On any fine summer evening anyone taking a tram to Dun Laoghaire will see thousands of people getting into the sea. Is there anything in this Bill that will lead to a prosecution of these people who are out for a swim on a fine summer evening?
It depends on the by-laws that the local authorities make. They make the by-laws.
Will the Parliamentary Secretary define the plimsoll line of regulation 6 of the Fourth Schedule?
There may be a variety of views on that. One local authority may have very narrow views and another local authority may not be so easily shocked.
It will change with the fashions.
The Parliamentary Secretary does not intend to have uniform practice?
No, I am afraid not.
At any rate we are keeping the rules we had in 1846.
We would not part with anything so ancient as that. They worked all right also.
Question put and agreed to.
SECTION 68.
I move amendment No. 7:—
In sub-section (1) to delete in lines 25, 27 and 31, the words "or bathing place" and substitute the words "bathing place or washhouse".
This is a formal amendment.
Amendment agreed to.
I move amendment No. 8:—
In sub-section (1) to delete all words from and including the word "and", line 27, to the end of the sub-section.
Sub-section (1) of Section 68 provides that a sanitary authority may make by-laws for the regulation of a swimming bath or bathing place maintained by them, for the regulation of persons resorting to the swimming bath or bathing place and for the exclusion therefrom of undesirable persons, and the by-laws may empower any officer of the sanitary authority or any member of the Gárda Síochána to request any person contravening any of the by-laws to leave the swimming bath or bathing place and to remove him therefrom if he does not comply with such request. I do not know exactly what the Parliamentary Secretary has in mind by the words "undesirable person". It would be very difficult for a sanitary authority to enforce the provisions of this sub-section in relation to a public bathing place, whatever they might be able to do in the matter of an enclosed bathing place or swimming bath. I consider that this by-law is unnecessary and might lead to a good deal of trouble if a sanitary authority were to attempt to enforce it. If it were a case of misconduct on the part of a particular person at the bathing place, I could conceive of a request of the kind being made but does it mean that a poor person whose presence might be objectionable to, shall we say, a person with certain social airs or graces, might be classed as undesirable and that that person might be at liberty to have him removed?
A sanitary authority would not do a thing like that.
You never know what they would do when they would get the authority.
The purpose of the provision was to arm sanitary authorities with necessary powers to exclude what are described as undesirable persons from swimming baths or bathing places maintained by them. I grant that there may be considerable divergence of opinion as to what constitutes an undesirable person. The definition could, I think, include a very wide scope of citizens but in this particular setting, anyhow, it is intended to cover the type of person who by his conduct had proved himself to be undesirable in the public bath or public bathing place provided and maintained by the sanitary authority. I can very well envisage an undesirable person gaining admission to a public bath and making himself very much a nuisance by his conduct or his language. I think the sanitary authority would be in a rather humiliating and helpless position if they had not any power to deal with him. By reason, perhaps, of his previous conduct, he may have made himself fairly well known to the officials of the local authority who would be in charge of these places. I think it is a proper provision. Whether it can be amended in any way to make it more specific or to make its meaning more clear, I do not know. I would be glad to have any suggestions which could be made under that heading. But I think the intention of the section is one upon which we should have agreement.
I quite agree. I am not pressing the point. What struck me about the reading of it was that it could be taken to mean a person socially undesirable.
Of course that was not intended.
It should mean a person who, by reason of past misbehaviour or misconduct, had rendered himself undesirable. It wants a bit of tightening up.
That person would be in breach of by-laws, presumably. Any person who is in breach of any by-law could be either ordered to get out or be removed. What is the necessity for having something in these general terms, "undesirable persons"?
We want to give specific statutory power to exclude an undesirable person.
Does that mean an undesirable person other than a person who breaks the by-laws? Look at the by-laws which can be made regulating the conduct of persons resorting to any area. Take paragraphs 5 and 6 of the Fourth Schedule regulating the conduct of persons resorting to an area. Under the Fourth Schedule people may be prevented from bathing except in specified places and they may have their conduct regulated when they resort to any place where they will be allowed to bathe. If there is a breach of any of the regulations, they can be put out, requested to leave, or thrown out by the Guards. Notwithstanding all that, apparently it is desired that there should be power to deal with undesirable persons. Who are they?
Presumably, they would be people of whom they had previous experience.
But they would be people in breach of by-laws.
You are not going to let them in at all. Your by-laws control their conduct when they are there.
Yes, but there is always room for repentance even at bathing places.
Under the bylaws, they are only given power to expel.
They will take power to exclude people who misconducted themselves on previous occasions by using bad language, etc. They may come to the sea on the fourth occasion to be cleansed of bad language.
They also have power to readmit a person at any time. Exclusion does not necessarily mean permanent exclusion.
What we are discussing is whether it is right to give the sanitary authority power to make by-laws. The by-laws that are not in controversy are the by-laws which may be made under the Fourth Schedule. They may provide for the regulation of the conduct of people resorting there. If a person is in breach of these, he can be asked to leave. If he does not, he can be pitched out by the Guards. Why give the sanitary authority power to make other by-laws over and above all that for the exclusion of undesirable persons? I think undesirable persons would be people who broke the by-laws and they are already provided for.
I rather think they would be people who, regardless of a breach of the by-laws, would want to get in and whom it would be necessary to keep out.
You can get them out. Suppose a person broke a by-law by using abusive language on three occasions and had been told to get out and got out. If that person makes an appearance for the fourth time, is it proposed, because he misconducted himself three times, that he should not be allowed to bathe on the fourth occasion when he may conduct himself? He may be in a better state of mind, not having refreshed himself to the same extent; he may be in a better position to bathe in a wholesome way. When we give power to a sanitary authority to make by-laws saying that people may not bathe except in specified areas, that they may only bathe within specified hours, that their conduct when they resort to any place where they may bathe is to be regulated by by-laws, and that if they break any of these by-laws through bathing at unspecified places, bathing at unspecified hours, or being ill-conducted when they do bathe, they can be asked to go out, and, if they fail to go, they can be thrown out by the Guards, why should we say that by-laws may be made to exclude undesirable persons? I think that an undesirable person would be a person who broke by-laws.
All the headings which the Deputy set out relate to the control of public baths or bathing places and the conduct of persons resorting to baths or public bathing places. The exclusion of an undesirable person is an entirely different matter. There is no power under the headings set out here to exclude from the baths an undesirable person. There are persons who are well known to be undesirable and I think the local authority should have power to exclude them from baths.
I do not think the Parliamentary Secretary really knows one very obvious reason for which powers ought to be conferred under this section. There is a class of individual who frequents these places whose hand has been seen in somebody else's trousers pocket.
Or worse.
The trouble with that class of person is that very often there is no conviction against him and it is impossible to convict. But there is a certainty amongst the bathers which has sometimes resulted in that class of person being excluded. I certainly think the powers ought to be there.
I do not like making members of a bathing club judges as to whether a person stole money.
If the losses have continued over a long period?
They either have grounds on which to bring a charge or they ought to exclude him from bathing.
Surely if you remove this you will run the danger of an undesirable person making himself a terrible nuisance.
I want to know who is the undesirable person Deputy Dockrell talks about.
The unconvicted thief.
A man suspected of thieving. I should like to ask Deputy Dockrell to frame a by-law which would provide for the exclusion of that person.
Is not a person innocent until he is convicted?
Certainly. I should like to hear the form of by-law which would enable a person suspected of thieving to be kept out of a bathing place.
Under the section you would not need a by-law; it would be statutory.
Does Deputy McGilligan intend to move amendments Nos. 9 and 10? If so, I shall have to put the question in an abbreviated form.
Yes, I propose to move those amendments.
To save the other amendments, I shall take the amendment to read:—
In sub-section (1) to delete all words from and including the word "and" in line 27 to the word "bath" in line 31.
The question is: "That the words proposed to be deleted stand."
Question declared carried.
Amendment negatived.
I move amendment No. 9:—
In sub-section (1), line 31, to delete all words after the words "bathing place" to the end of the sub-section.
I put down this amendment to take out those words which would allow an officer of the sanitary authority to get a member of the Gárda to remove a person, who is in breach of a by-law, if he does not comply with a request to leave. I should like to know the situation in which the Gárdaí can be told to throw a man out. If he be a thief, as Deputy Dockrell suggested, he is caught in the act and the Gárdaí do not require this provision to put him out. Is it contemplated that the sanitary authority should be given power to get a Gárda to throw a man out because some two or three persons say that somebody has had his hand in their trousers pocket? I do not see any reason for taking this power to get the Gárdaí to remove a person. A person will be in breach of a by-law or he will not. If he is, I imagine that penalties will attach to the breach. If a person is likely to cause a breach of the peace, he can be taken away by the Gárdaí without enlarging their present power. If he is misconducting himself by way of obscenity, he can similarly be taken in charge by the Gárdaí without any special power. We do not want further to widen the powers of the Gárda.
An officer of the sanitary authority may ask a Gárda to request a man to leave if that person is in open contravention of a by-law. Is it intended that the Gárda should have power to remove a man from a bathing place for breach of the by-laws? There are by-laws to be made stating where a person is to bathe and the hours during which he is to bathe. If a man goes to a bathing place ten minutes after the specified hour, are the Gárdaí to be asked to come and take him out? Or is that to happen in the case of some breach of regulation with regard to the costume he wears? I do not think that these extensions of the power of the Gárda should be permitted without knowing to what they relate.
The intention of the section is very clear. By-laws may be made to
"empower any officer of the sanitary authority or any member of the Gárda Síochána to request any person contravening any of the by-laws to leave the swimming bath or bathing place and to remove him therefrom if he does not comply with such request."
We have discussed various matters which may be covered by the by-laws. A sanitary authority makes by-laws for the regulation and proper conduct of its public baths and bathing places. Somebody comes along and infringes those by-laws to such an extent that the responsible officer of the sanitary authority thinks such person should be requested to leave. There ought not be much difficulty in envisaging circumstances under which that position would arise. If the person refuses to leave, the section empowers the responsible officer of the sanitary authority to send for the Gárdaí. The Gárdaí request the man to leave and, if he refuses to leave, they are empowered to remove him.
Or the sanitary officer can do so.
Then, it would hardly be necessary to secure the assistance of the Gárdaí at all. I do not think that this is an unreasonable power to vest in the officer acting on behalf of the sanitary authority. Power must be vested in the officers who will be responsible for the control and management of these public baths and bathing places to ensure that the by-laws will be observed and that, if anybody refuses to observe them, he will be removed from the premises. If such power is not vested in the sanitary authority, and power to act through its officer, I do not think that the by-laws could be properly enforced at all. Deputy McGilligan may say that, if a person violates a by-law, we can have him brought into court and punished. We can, but circumstances might be such as to demand that the person violating the by-law be removed from the premises without delay.
What would be the position if the officer of the sanitary authority made a mistake of identity, stated that a person was undesirable and, having requested him to leave, got the Gárdaí to put him out?
We are not discussing undesirable persons now.
They are in the same sub-section.
If a person is excluded as undesirable and goes to one of these places, he will be in breach of a by-law and the Gárdaí can fire him out.
He will not get in.
Suppose he does get in, he will be in breach of the by-law.
What is to prevent a local Pooh-Bah, with five or six others, getting up a vendetta against a man and getting him fired out?
You can appeal to the local authority.
The by-laws may empower any officer of the local authority or any member of the Gárda Síochána to request any person contravening any of the by-laws to leave the place and to remove him if he does not comply with the request. For a breach of the smallest by-law, a man can be fired out. I do not think that you should have that power.
The liberty of the subject is at stake.
The licence of the subject has to be controlled.
Make a specific charge against him.
Look at the number of regulations which may be made under the Fourth Schedule. For a breach of any of those, a man may be fired out. Surely that is ludicrous.
There is a difficulty as regards the exclusion of an undesirable person. By excluding him, you label him as undesirable. Suppose he takes an action at law.
If you satisfy yourself that he is undesirable, you can exclude him but you need not tell everybody he is undesirable.
Suppose he makes a fuss and is put out?
It is his fuss.
It is not.
Not many will go to bathing places if this is to be the position.
We are not depriving the person concerned of his rights at common law, so far as I know.
To the by-laws, penalties will be attached. Why not leave it at that?
Because it might be necessary to remove the offender.
Why take power to remove him on every occasion?
He will not be removed just for the fun of the thing.
Any officer of the sanitary authority or any member of the Gárda is entitled to request any person contravening any of the by-laws to leave the bath or bathing place. It may not be necessary to remove him but, if he fails to go, he is pitched out.
That is right.
Amendment put and negatived.
Amendment No. 10 not moved.
I move amendment No. 11:—
At the end of the section to insert the following sub-section:—
(3) Every by-law made by a sanitary authority under this section in relation to any swimming bath, bathing place or washhouse maintained by them shall be posted and kept posted by them at such swimming bath, bathing place or washhouse.
This is merely a machinery amendment.
How are you going to post up the regulations at a bathing place?
We can find facilities. We have already decided that the sanitary authority is to be given power to provide many amenities at a bathing place—refreshment stalls, lockers in which clothes and valuables will be kept, etc.
This is what Deputy Byrne was referring to. How are you going to cover the whole extent of coast from Sandymount?
It will be necessary to provide notice boards.
Amendment agreed to.
Section 68 agreed to.
SECTION 69.
I move amendment No. 12:—
Before Section 69 to insert the following section:—
69.—(1) Where the commissioners of a town which is not an urban district were, immediately before the commencement of this section, maintaining under the Act of 1846, a public bath, washhouse or open bathing place, the following provisions shall, on and after such commencement, have effect—
(a) the commissioners may, notwithstanding the repeal of the Act of 1846, continue to maintain such public bath, washhouse or open bathing place, and may, with the consent of the Minister, improve or extend it;
(b) Section 62 of this Act shall apply, in respect of any public bath, washhouse or open bathing place the maintenance of which is continued, under paragraph (a) of this sub-section, by the commissioners, as if—
(i) the references therein to a sanitary authority were construed as references to the commissioners, and
(ii) the references in sub-section (1) of the said Section 62 to a bath, swimming bath, bathing place, convenience for bathers or washhouse were construed as references to such public bath, washhouse, or open bathing place, and
(iii) the reference in sub-section (2) of the said Section 62 to a bath, swimming bath, bathing place or washhouse were construed as a reference to such public bath, washhouse or open bathing place;
(c) Sections 63 and 64 of this Act shall apply in respect of any open bathing place the maintenance of which is so continued as if—
(i) the references therein to a sanitary authority were construed as references to the commissioners, and
(ii) the references therein to a bathing place or swimming bath were construed as references to such open bathing place, and
(iii) the words "at any place within their sanitary district or" were not contained in sub-section (2) of the said Section 63;
(d) Section 65 of this Act shall be construed as if the reference therein to a sanitary authority included a reference to the commissioners,
(e) sub-sections (1) and (3) of Section 68 of this Act shall apply, in respect of any public bath, washhouse or open bathing place the maintenance of which is so continued, as if—
(i) the references therein to a sanitary authority were construed as references to the commissioners, and
(ii) the references therein to a swimming bath, bathing place or washhouse were construed as references to such public bath, washhouse or open bathing place;
(f) if the commissioners continue to maintain any washhouse, they may provide thereat facilities for drying and ironing clothes and other articles;
(g) if, immediately before the commencement of this Part of this Act, the commissioners were not for all purposes a body corporate, then, notwithstanding the repeal of the Act of 1846, the commissioners shall, for the purposes of this section, continue to be a body corporate by the name assigned to them by Section 6 of the Act of 1846;
(h) the commissioners may, with the consent of the Minister, transfer to the sanitary authority for the sanitary district in which such town is situate, any public bath, washhouse or open bathing place the maintenance of which is so continued.
(2) In this section the expression "the Act of 1846" means the Baths and Washhouses (Ireland) Act, 1846.
The new section proposed in this amendment is intended to take the place of the existing Section 69. The Baths and Washhouses (Ireland) Act, 1896, is being repealed by the Bill and it is necessary by means of this amendment to continue the powers of town commissioners to provide baths and washhouses so that they may be in a position to maintain and improve the existing facilities in line with extended powers granted to sanitary authorities for the purpose in Part VIII of the Bill. It is a machinery amendment.
This amendment deals with small towns run by town commissioners and I am just wondering what is the position in regard to villages where there are no town commissioners. I assume that the county sanitary authority would have control of such areas and provide bathing accommodation.
The county authority could.
I should like to know whether the county authority could delegate its functions in this respect to a local council or a local committee because I think in some cases it might be desirable to do so. There is nothing more urgently needed than bathing accommodation particularly in places far removed from the seaside. We have heard in other sections about the necessity for cleanliness. One thing we know to be true is that there is a larger proportion of our population than that of the population of any other country who do not know how to swim. That is a great handicap and I think it is a thing that should be rectified. As far as most rural areas or small towns are concerned, no accommodation is provided. We have been battling for weeks with infectious diseases, wallowing in drains and cesspools and we expect in a short time to pass on to the sombre subject of illegal burials. We would like now to dabble in cold water for a while.
In rural areas, the county authority would have the statutory powers in regard to this matter that town commissioners or urban authorities have in urban areas. As to the delegation of their functions, there will be restrictions on that but the county authority can provide facilities and appoint a committee to control, supervise and operate the facilities. The statutory responsibility for providing the money and equipment and for any extension of the development would rest with the local authority. The only other way that facilities could be provided for a purely voluntary organisation would be by way of grants out of the unemployment relief fund but I do not think that would bring us very far in that type of development.
Amendment agreed to.
Section 69, accordingly, deleted.
Section 70 agreed to.
SECTION 71.
I move amendment No. 13:—
In sub-section (1), line 8, after the word "public" to insert the word "health".
The section gives the Minister powers to make regulations for the prevention of danger to the public arising from the manufacture, preparation, importation, storage, distribution or exposure for sale of food. I am suggesting that the section should read: "may make regulations providing for the prevention of danger to the public health". I should imagine that you must have the word "public" inserted there if the section is to be inside the scheme of the Bill.
I am accepting the amendment.
Amendment agreed to.
I move amendment No. 14:—
In sub-section (1), line 8, after the word "importation" to insert the word "transport".
I am not sure whether "distribution" is wide enough.
It just turns on the question of whether "distribution" includes transport. It is purely a matter of legal interpretation. Personally I have some doubt about it. "Distribution" to my mind could be confined to distributing over the counter or distributing without necessarily having to go through a transport process. I shall have it further examined. I think either "transport" or "carriage"— of the two I think "transport" would be the better word—should be inserted.
I took "transport" out of the English Act.
Amendment, by leave, withdrawn.
Amendment No. 15 not moved.
I move amendment No. 16:—
To delete sub-sections (2) and (3).
Amendment agreed to.
Amendments Nos. 17, 18, 19, 20 and 21 not moved.
I move amendment No. 22:—
In sub-section (4), lines 31 and 32, to delete the words "or who wilfully obstructs the execution of a regulation under this section."
In view of the fact that sub-sections (2) and (3), which deal with the taking of samples of food and of materials or articles intended for use in the preparation and manufacture of food intended for sale for human consumption, have been deleted, it is no longer necessary to retain the penalties provided in the sub-section.
Amendment agreed to.
I move amendment No. 23:—
In sub-section (4), line 33, to delete the word "summary".
The whole tendency in this measure is to make an enlargement of the criminal law, and, in doing so, to throw cases for consideration into the District Court by talking of summary prosecution and summary conviction on every possible occasion. I want to draw attention to this, that, whether we say summary or not in these measures, that does not end the matter. According to the Constitution, everybody who is charged with an offence has the right to have a trial by jury, which means a trial in a court higher than a District Court. There are exceptions with regard to special courts which I am not considering at the moment, but the only big exception to that is in regard to those offences which are handed over for summary prosecution, and under the present Constitution the only offences that may be taken in a summary way are minor offences. I have the feeling that whoever drafted this Bill had his eye not on the 1937 Constitution but on the 1922 document. Why I say that is this: that under the 1922 Constitution you had the same provision with regard to trial by jury and with regard to summary prosecution. It was stated that offences which were of a minor character, and which were made triable by summary prosecution under the Summary Jurisdiction Act, or any enlargement of it, could be presented before a summary court.
Under the 1922 Constitution, if any Act said that the matter was one for summary prosecution or summary conviction that made it so; but saying it in an Act now does not make it so because it is a matter for the courts to consider whether or not it is a minor offence. The mere fact that some piece of legislation says that the matter can be tried in a summary fashion does not mean that the offence will, when it comes to be charged in court, be taken in the District Court in a summary way. It will be a matter for the determination of the court, whether or not the thing is a summary offence, judged by the only test which the Article of the present Constitution establishes, and that is whether it is a minor offence. In that connection the courts have often established for themselves various tests by looking at the Act and considering whether a matter is one which might be met by a term of imprisonment of a minor type or some enlargement of it, or by some small fine or a large fine.
This section speaks of a fine of £100. I should say that prima facie any offence which permits of a penalty as large as £100 would not be considered a minor offence by the courts, and, therefore, would not be triable in a summary way. I do not know whether that point has been considered. I rather take it that it has not, because we find this running right through the Bill—offences created which are made triable in a summary way with penalties ranging from £5 to £100, and in one instance to £500. They are all, in a most generous and comprehensive way, regarded as summary offences. I submit that will not be the test, and I think this is a good section to draw attention to the matter because the penalty here is £100.
This matter was mentioned earlier in our discussions by Deputy Costello. Deputies will appreciate that it is a purely legal matter. It is largely a question of the interpretation of the Constitution. Deputy McGilligan points out that by throwing such offences as are mentioned in this Bill into the district courts we are enlarging the criminal law, or at least widening the scope of the type of cases that, ordinarily, are disposed of in the districts courts. The Deputy also mentioned the right of the subject to trial by jury, presumably on a criminal charge. Needless to explain, I do not consider myself competent to deal with a question which relates purely to constitutional law. Deputy McGilligan is an authority on that, and any views that I express will be those, more or less, of a layman on such matters. I understand the Constitution provides that minor offences fall to be tried in the district courts, and that offences that are not deemed to be minor fall to be tried in the higher courts. So far as my knowledge goes, we have no explicit definition of what constitutes a minor offence. Now, if we relate the magnitude of the offence to the penalty attached to a breach of the law we certainly come right up against the position that a very wide range of matters falls to be dealt with by the district courts, and that these carry very substantial penalties. In fact, under various enactments, the Road Traffic Act, for example, as well as under various customs and excise regulations, and statutory restrictions, heavy penalties are liable to be inflicted by the district court.
That may be unconstitutional. It is a matter which ought to be examined, but if the matters which are to be dealt with in the manner proposed under this Bill are held to be unconstitutional, on the ground that they cannot, within the Constitution, be deemed to be minor matters, I think we have reached a position in which many matters are being disposed of under various Acts of the Oireachtas in our district courts which ought properly to be dealt with in the higher courts. Whether, in fact, we have been acting in an unconstitutional way all down the years, and whether Deputy McGilligan's explanation now offered of the difference in the position as compared with the position under the earlier Constitution adequately clarifies the matter, it is not for me to say. The Deputy has raised an interesting point which the constitutional lawyers can enjoy themselves in elucidating. In the meantime, I can only say that, if we are acting unconstitutionally in relation to this Bill, we have acted unconstitutionally in relation to quite a number of Bills.
I raised the point in order to have it considered. I should like the Parliamentary Secretary to be able to say at a later stage that the various offences created by this measure have been brought under the consideration of some legal authority, and that that legal authority has expressed his view in an official way that they are all proper to be considered minor offences, and will, in all probability, be regarded as minor offences if brought before the court. I should like this one in particular to be brought to the notice of such legal authority. Here is a case in which, for a breach of the regulation, a person may be fined £100 or may get a term of imprisonment not exceeding six months, or may get both such fine and imprisonment. If that particular type of thing is to be considered a minor offence, it must be remembered that, to that extent, the alleged right of a citizen to trial by jury is done away with.
The point may better be regarded in bulk. This Bill creates an enormous number of offences, all of which, so far as I know, are to be brought before the summary courts. That means that every offence that may be committed, in relation to which all sorts of penalties ranging from £5 up to, in one case, £500 are imposed, is to be a minor offence and that the citizen in breach of the regulations has no right to be tried by any jury. I should like to have somebody with legal authority advising the Parliamentary Secretary that this point has been raised and giving an authoritative statement at some later stage that, these matters having all been considered, there is no hesitation on the part of the Government in saying: "We know that this deprives the citizens of the right to trial by jury. We think we are entitled to deprive them of that right and to hale them before the District Court". If we can have an assurance that all the multitudinous offences created and the many penalties, both of fine and imprisonment, which are associated with a breach of the regulations have been considered, it means that the matter has not slipped through, that it has been considered and a definite decision given.
It does not matter what the House says about it. In the old days, if the House did say: "This is to be tried summarily", it was so, because the Constitution declared that if any Act said that a matter was one to be dealt with summarily, it fell to be dealt with in that way. The present Constitution does not say that. The simple phrases are "minor offences" and "triable summarily". It is for the adjudicating authority, which would necessarily have to be the High Court, to say that this is or is not a minor offence. In the case of any of these offences going before the District Court, it is open to any person alleged to be an offender to say he wants it removed to the High Court because that is the only court which can try any matter related to the provisions of the Constitution. Every one of these things could, on the motion of the person aggrieved, be removed upstairs, not merely to the Circuit Court but to the High Court, for adjudication there as to whether or not the offence in the circumstances of its alleged commission was a minor offence. I think we ought to pay some attention to that matter.
It is an interesting thesis, and I will certainly have it examined.
Amendment, by leave, withdrawn.
Section 71, as amended, agreed to.
SECTION 72.
I move amendment No. 24:—
In sub-section (1), page 35, lines 40 and 41, to delete the words "consumed, whether by itself or as an ingredient of other food, by the general public" and substitute the words "(whether consumed by itself or as an ingredient of other food)".
The words "consumed by the general public" are liable to be misleading inasmuch as the food referred to might be a baby food and might not be consumed by the general public. I might add that I may have some further amendments to move to this section on Report Stage.
Amendment agreed to.
I move amendment No. 25:—
In sub-section (1), line 44, before the word "standard" to insert the word "minimum".
I imagine that the standard is to be a minimum standard.
I am advised that the amendment ought not to be accepted. There are many foods in which certain constituents are more or less inevitably present and in several cases any standard fixed would of necessity be a maximum standard. Take the case of butter and margarine. The amount of water permitted to be present has obviously to be fixed at a maximum figure as water in these articles has no nutritive value. Flour is also mentioned. The fibre in flour is an inevitable concomitant of the milling process and any standard fixed would inevitably be a maximum standard. Certain foodstuffs are customarily permitted as ingredients of other particular foods which are regarded as diluents of the principal. For example, cereals are sometimes added to sausages more as a vehicle than as an addition to the nutritive value of the sausages, so that when these points are related to the Deputy's amendment, or when the Deputy's amendment is related to these considerations, it seems to me that the word "minimum" ought not to be inserted.
The difficulty is that one case under the offences sub-section. Suppose a person sells any of the articles for which a standard has been prescribed. If the food does not conform to the standard so fixed, surely there will be a difficulty, if the standard is not phrased in terms of a minimum? A person could sell milk which had more butter fat than was prescribed. Nobody would think of penalising him for it, but there would be a possible offence under the section. Surely in regard to any diluents in any foodstuffs, the position can be met by phrasing it in terms of a minimum; in other words, by phrasing it so that the other ingredients shall be present in minimum percentages.
I have always understood that the run of all these matters related to food and drink under the Public Health Acts was based upon minimum standards. You can always get your minimum of the desirable matters in the composition and the offence then is only in cases where any person contravenes by falling below the minimum. Certainly, if regulations are going to be prescribed in regard to the sale of milk, that there shall be such and such an amount of butter and fat and if a person does not comply with that standard, if the milk has more butter or fat, it is not the situation that is usually contemplated. I always understood it ran in entirely the opposite direction.
We appear to be at cross purposes. I will look into the matter further.
Amendment, by leave, withdrawn.
I move amendment No. 26:—
Before sub-section (2) to insert a new sub-section as follows:—
The Minister shall not make such regulations except following the publication of a report from a duly qualified authority set up for that purpose.
It will be observed that amendment No. 27 also deals with this, but it can be considered separately. We are, or ought to be, a rather important food-producing country and we have some of our very biggest industries based upon production of food and drink. If we tie up the manufacturers too tightly or if we, by Government action or regulation, interfere in too blind a way with the people carrying on those important industries, the result may be very harmful. It is very desirable to protect the public interest in relation to the preparation of food and very desirable to have proper standards from the point of view of the excellence of the food, its nutritive value and the general public health. I think that these two amendments should be accepted.
The first says that, when any regulations are being made, they shall not be made until there has been an inquiry by qualified people into the matter the Minister is concerned about and that no action shall be taken as a result of that inquiry until the report has been fully published. That is to ensure that the attention of persons engaged in the manufacture of food and drink will be fully drawn to the terms of the report and that the public will have an opportunity of understanding what is involved. The second amendment, No. 27, says that, even assuming the proper authority has made an inquiry and has published the report, for general public information and for the information of persons engaged in the manufacture of articles of food and drink, when the Minister comes to frame the particular regulation dealing with such an item of food and drink, he should not make a regulation without first publishing the fact that he proposes to make such a regulation, in order to give an opportunity to manufacturers to study the regulation and make an appeal against any aspect of it they think may be undesirable or harmful from the manufacturing or any other point of view. It is very desirable that the report would be published and that there would be a period for reviewing the regulations the Minister proposed to issue, so as to enable manufacturers to see exactly what the result of the regulations would be.
Section 72 provides that, if the Minister is of opinion that the composition of any food, by itself or as an ingredient of any other food, consumed by the general public, is of special importance to the public health, he may, after consultation with the Minister for Industry and Commerce and the Minister for Agriculture, make regulations prescribing the standard. The next sub-section sets out the particular matters that may be dealt with under those regulations. Deputy Mulcahy's amendment No. 26 proposes that the Minister shall not make such regulations except following the publication of a report from a duly qualified authority set up for that purpose. I rather think the machinery he proposes would be cumbersome and difficult to operate. To begin with, there should be some difficulty in defining "a duly qualified authority" for this particular purpose.
I would direct the Deputy's attention to sub-section (1) of Section 72, which I have just recited. Clearly, the regulations will not be made in any hasty way. The Minister for Local Government and Public Health will first consider the matter and, presumably, draft regulations will be drawn up. These will be submitted then to the Minister for Industry and Commerce and the Minister for Agriculture. Each of these Departments will be directly concerned, one with the agricultural industry and the other with the manufacturing industry in the main. They, in turn, will consult the interests concerned before agreeing to the regulations. Undoubtedly, as a result of the exchange of views, the three Departments will be brought into consultation on these regulations before they can become effective. Within that machinery, no doubt, the fullest consultation will take place with the persons immediately affected.
I do not think it is the usual course to put a statutory obligation on a Minister, who has such a responsibility as is envisaged here, to consult everybody concerned or to consult, as the Deputy sets out here, what is described as "a duly qualified authority." It is much more important that consultation should take place with the interests immediately concerned in the question of food standardisation.
There is no provision for it.
No, but there is provision for consultation between three Departments before anything effective can be done. Everybody knows that each of the three Departments concerned will have the closest consultations with the interests involved before any decisions can be reached. The Minister for Agriculture will take very good care that any regulations which are made will not injure agriculture. Similarly, the Minister for Industry and Commerce will be at pains to ensure that the regulations that are made will not unduly interfere with manufacturing processes. The Minister for Local Government and Public Health will be mainly concerned to secure that the health of the community will be safeguarded. Not only is it unlikely, but it is scarcely conceivable that such regulations could or would be made without the fullest consultation with the various people concerned.
In the setting up of such a body as Deputy Mulcahy has in mind, the selection of personnel would be a difficult matter and I doubt if any such authority could be set up as would be satisfactory or acceptable to the various interests involved. I think it would be wiser to leave it to the ordinary process of consultation and inter-Departmental exchange of views, and that the results will not be found objectionable by any considerable section of the people concerned. These regulations will always be open to public discussion and, if any regulations should be made within the powers conferred here, it will be open to people who feel aggrieved to have the matter fully discussed and, if not remedied, at least exposed. I think that safeguard is the best that can be provided and I think it is a sufficient safeguard to satisfy anybody who is reasonably easy to satisfy.
Under Section 4 of the Sale of Food and Drugs Act, 1899, it is provided:—
"The Board of Agriculture may, after such inquiry as they deem necessary, make regulations for determining what deficiency in any of the normal constituents of genuine milk, cream, butter, or cheese, or what addition of extraneous matter or proportion of water, in any sample of milk (including condensed milk), cream, butter, or cheese, shall for the purposes of the Sale of Food and Drugs Acts raise a presumption, until the contrary is proved, that the milk, cream, butter or cheese is not genuine or is injurious to health, and an analyst shall have regard to such regulations in certifying the result of an analysis under those Acts."
The Sale of Food and Drugs (Milk) Acts of 1935 and 1936 enable the Minister for Agriculture, after consultation with the Minister for Local Government and Public Health, to make regulations prescribing the minimum percentages of milk fat and milk solids, whole milk, cream and skimmed milk. They repeal Section 4 of the earlier Act in so far as it relates to milk and cream. Under these provisions, as far as they go, in relation to the standardisation of the foods mentioned, the Minister for Agriculture, in the one instance, acting alone, has been free to make such regulations, after such inquiries as he deems necessary — regulations determining the type of matters it is proposed to determine under this section. Similarly, under the Sale of Food and Drugs Acts, 1935 and 1936, the Minister for Agriculture, after consultation with the Minister for Local Government, was free to make regulations. It was not necessary under either of those Acts to set up advisory authorities or what would be described as duly qualified authorities to report to the respective Ministers before making such regulations. In so far as the limitations of the statutory powers permitted, these Acts have worked satisfactorily and there has not been any complaint on the ground that Minister acted in any hasty way or without full consideration of the relevant factors.
Surely the proposals under Part IX, relating to food and drink, are assuming a new relevance—entirely food and drink production?
That is so.
In so far as cheese, butter and milk are concerned, there is nothing indicated under paragraphs (a), (b), (c) or (d) that they apply to butter, milk or any of these things. It is no use the Parliamentary Secretary feeling a sense of inferiority and feeling that a duly qualified authority, because it has not capital A's, might not refer to representatives of Government Departments. My intention in putting down "duly qualified authority" was somebody nominated by the Minister—a representative of the Department of Industry and Commerce, a representative of Agriculture or a representative of Local Government—being a duly qualified authority to inquire into any matter affecting the standards of food and drink. What I am anxious about is that, in opening up this new field of inquiry and control, it would be systematically done and the public, in the first place, would be able to understand what was being done for the purpose of preserving proper standards in food and drink and, in the second place, that manufacturers would know the lines upon which their thoughts were expected to run in seeing that proper standards were secured.
I do not see any more satisfactory way than requiring that the field of food production that the Minister intended to review and to make regulations about, would be examined and that the public would have a report. The consultation with the Minister for Agriculture is intended, no doubt, to have certain safeguards and to result in inquiries, but I think an inquiry should be carried on in a formal way and there should be something informative and educational arising out of these inquiries. There is nothing in the section which would put, from a statutory point of view, the onus on the Minister for Industry and Commerce or the Minister for Agriculture to consult the industries or the persons concerned. It is most desirable that there would be statutory safeguards for these people and I feel the best statutory safeguard they could have would be a formal report and the publication of that report.
In sub-section (1) of Section 72 there is reference to the composition of any food consumed by the general public. The Parliamentary Secretary has eliminated the words "general public" in the amendment he proposes. What he said was probably drafted prior to the time that amendment was thought of. The section relates to the food which is of special importance to the public health. I cannot see what objection there should be to the taking of the second of the amendments, suggesting that there should be a notice outlining the regulation. The Parliamentary Secretary said the two Ministers will see that there will be consultation with the interests immediately concerned. If they are going to see that there will be such consultation, why not say they must have it? The Parliamentary Secretary's line has been that they will do it.
All the second amendment asks is to give these interests and opportunity of putting themselves forward as people immediately interested when regulations are about to be made. I am not so sure that these consultations with the interests directly concerned always take place. I spent the morning dealing with one matter in which quite clearly the points in controversy were only in controversy because there had not been an association with the interests concerned. Anybody who has been through the courts within the last five years cannot have failed to observe the big number of occasions on which regulations were drafted and had to be amended simply because the consultation with the interests concerned took place after the first regulation came out, and when attention was drawn to the fact that a particular order had been made. The analogy which the Parliamentary Secretary seems to make is not a correct one at all. I agree that the regulations made by a Minister or by two Ministers in connection with a particular substance, either butter or milk, might be objected to by the public. I do not know anything which has been the subject of so much inquiry as milk for the last 1½ years. In fact, a commission was appointed to deal with it. I do not think they have yet reported. That was in relation to the whole Dairies Act, and it was proposed as a matter of urgent public importance. As far as I know, the public have not yet been enlightened as to the result of that inquiry. The things that it is possible to discuss in connection with milk are limited. There has been so much in the way of regulations and so much thought has been given to the matter that the points open to discussion are very limited. The requirements to be discussed cannot be very wide. What is proposed here? The section reads:
"Where the Minister is of opinion that the composition of any food consumed, whether by itself, or as an ingredient of other food, by the general public is of special importance to the public health, he may, after consultation with the Minister for Industry and Commerce and the Minister for Agriculture, make regulations prescribing a standard for the composition of such food."
The nature, quality or amount of substance to be contained in the food as well as any substance not to be contained in it. There is even a provision in relation to the methods to be used, and the time taken either in the manufacture, preparation or distribution of such food. That is a very big area to open up. Paragraph (2) (d) deals with the methods to be used in the manufacture of food. Many people have processes of their own and it may be that, unless a manufacturer of a particular type of food got notice, that whole proprietary brand might be ruled out by regulation. One can imagine a regulation being made that stuff made in such a way could not be sold. That might not happen in relation to proprietary articles but it might be necessary to give the maker notice so that he could have the manufacture modified. All I ask of the Parliamentary Secretary is that notice should be given; a notice, giving some opportunity of an appeal being heard; in other words, publication to those immediately and directly concerned that a regulation was about to be made and inquiring what they had to say. The Parliamentary Secretary says that he will have some report. I imagine he will. It is not likely that one, two or three Ministers would think of this by themselves. What will happen in the ordinary way is that some one in authority in connection with the public health will draw attention to this matter. I think one knows enough about the delay in Departments to realise that it will be canvassed before anything is done. Surely these people should be given, at least, an indication that a report has been received, and generally what the subject matter of the report is. There is nothing formal with regard to this. It seems quite proper to insist that notice should be given. If any question arose, some exception would have to be made. Something might occur as to the prohibition of certain foods. That could be provided for. In the general run, these regulations will, I assume, be made in a leisurely way. It is always better to have people's attention drawn beforehand to such matters and to let them come and make their observations. It is said the difference between the English community and this community is that, in matters of legislation, the English community always make their objection before a law is passed but that once it becomes law they are out to obey it, and that here it is the reverse. You take away the stimulus to agitation if you give notice of what is to be done. There is nothing about representations in the amendment. It simply provides that notice be given and that people be given an opportunity of having their say. The Parliamentary Secretary might consider the amendment.
I should like to hear what the Parliamentary Secretary has to say on the amendment.
I would be prepared to go some distance to meet the Deputy on amendment No. 27. I would not undertake to outline the regulations but I concede that the people immediately concerned ought to know that the making of such regulations is under consideration, so that they would be given the fullest opportunity to get in touch and have consultation as to what the regulations should contain. I would not be in favour of trying to outline the regulation in advance, and prior to the consultations, as a result of such public notice as the Deputy has in mind. I think his point would be met if we took the necessary steps to notify the public of our intention to make regulations so that anybody interested would have the fullest opportunity of presenting his case.
Can the Parliamentary Secretary say whether he would be in a position to introduce an amendment giving some such type of security?
Yes.
Amendment, by leave, withdrawn.
Progress reported: Committee to sit again.