Dáil Éireann debate -
Tuesday, 6 Dec 1949

Vol. 118 No. 13

Committee on Finance. - Supplies and Services (Temporary Provisions) Act, 1946 (Continuance) Bill, 1949—Committee and Final Stages.

Section 1 agreed to.

SECTION 2

Question proposed: "That Section 2 stand part of the Bill."

Mr. MacEntee

On Section 2, which is the operative section of the Bill I assume that we would be entitled to discuss everything that it is proposed to continue under the Bill. I do not propose, however, to open the debate upon quite so wide a front as that. I am hopeful, from the moderate and considerate reply from the Parliamentary Secretary to the Second Reading of the debate, that it may be only necessary for me to draw his attention to some of the things that are enshrined or embodied in the Supplies and Services Act of 1946, for him to give the House an assurance that the powers which were thought necessary in 1942—and which were continued in 1946, because we were not at that period out of the wood of the European war—will not be exercised in the manner in which heretofore has been the practice.

Under the Supplies and Services Act, 1946, certain things were done which the House agreed were justifiably done in the circumstances of that time. Among them, Section 3 continued a great number of Orders which were made before 18th June, 1946, and were in force immediately before the operative date. I am concerned with one Order, the Order No. 173 of 1942. This is not a Principal Order, it is not a fundamental Order; but it does significantly and drastically amend what was the basic Order made under the Emergency Powers Act of 1939.

Deputies who were in the House at the outbreak of the great war which began in September, 1939, will remember that the Oireachtas, abrogating many of the safeguards of the Constitution, gave to the Government of the day powers which were universally admitted to be necessary to deal with a very perilous and extraordinary situation. But though these powers were given in the widest measure—perhaps with reservations, mental reservations, on the part of those who conferred them and of those who were the recipients of them—nevertheless, when the powers were conferred, the Government of that time were particularly careful, in drafting this Emergency Powers Order, 1939—which is No. 224 of the Statutory Rules and Orders of that year—to state certain specific limitations within which it declared, in effect, that the powers which had been given to it by the House would be exercised.

In that connection, I think it is highly important for the House and the general public to bear in mind the fundamental reasons why the great powers which were taken under Part VI of this Order were felt to be necessary and the conditions in which and the purposes for which it was felt that these powers should be exercised. Article 31, paragraph 1, of the Emergency Powers Order, 1939, begins with a recital of the conditions under which these powers relating to essential supplies and services are to be exercised. It says:—

"A Minister, so far as appears to him to be necessary in the interests of the public safety or the preservation of the State, or for maintaining supplies and services essential to the life of the community, may by Order provide——"

for a great number of things, including:—

"for regulating the production, treatment, keeping, storage, movement, transport, distribution, sale, purchase, use or consumption of essential articles....

for regulating, restricting or prohibiting the importation or exportation of essential articles;

for regulating the carrying on of any undertaking engaged in essential work....

for regulating, restricting, or prohibiting the production... distribution or sale of articles other than essential articles;".

It will be quite clear from the summary which I have given of the opening paragraph and sub-paragraphs of Article 31 that what the Legislature had definitely in mind was to regulate and control, in the interests of the public safety, for the preservation of the State and for the maintenance of supplies and services essential to the life of the community, the production and distribution of commodities and that these commodities were not commodities merely of ordinary commerce or traffic but commodities without which the State might not be preserved, the interests of the public safety might be endangered or the essential life of the community might not be carried on.

I do not think that anybody will contend that in the circumstances of the time and in the circumstances as they persisted during the period from 1939 until rather recently, the need for wide reaching powers of this sort applicable to commodities of the essential character which the Order specifies were not necessary and should not be unreservedly granted.

The Emergency Powers Order, 1939, was drastically amended by Emergency Powers Order No. 173 of 1942. I concede it was amended in a way which conferred upon the Minister quite an arbitrary power by contrast with the wide but, nevertheless, regulated powers which the Order of 1939 conferred upon the Minister. Under Article 2 of Emergency Powers Order No. 173, Article 31 of the 1939 Order is amended by the substitution of certain new paragraphs for paragraph (1) of the 1939 Order. That is to say—the Order goes on to recite—

"the Minister may by Order or direction, (which direction may be given either in writing or orally) provide——"

I would like to draw the attention of the House to the contrast between the Order of 1939 and the Order of 1942, and I should like to say here that I was a member of the Administration which was responsible for Order No. 173. The House, in common with the Government of the day, thought that the almost arbitrary powers conferred by the Order of 1942 were essential and were justifiably given. There was no challenge to this Order. It was made, as Deputies are well aware, when war was raging all round us, when war was being waged against the State even inside our own territory. It was made at a time of general hardship and general peril, when the safety of the State was in the gravest danger, not only from hostile influence abroad, but from—let us face it quite frankly— the forces of disorder at home.

Mr. McQuillan

You are one of the biggest dangers.

Mr. McAuliffe

He was always a danger.

Mr. McQuillan

He is a menace to any country.

Mr. MacEntee

All these circumstances were present to the collective mind of the Government and the collective mind of the Opposition—some members of which are now members of the Government—when the Order was made. That was the position seven years ago, the position from which we were emerging in 1946, but we are told it is not the position to-day. And it is not the position to-day. There are no hostilities, active and open, now being waged in Europe. There is no submarine warfare. There is no aerial warfare directed either against this country or the neighbouring State. Whether the peace be a peace of exhaustion or a peace of goodwill, Europe is actually, if not formally-speaking, at peace to-day.

An Leas-Cheann Comhairle

And the whole thing is entirely outside the scope of this Order.

Mr. MacEntee

It is not, Sir. This is an Order which was made in the year 1942, and confirmed by the Act of 1946, and I am contending that the circumstances which justified the making of that Order do not exist to-day.

An Leas-Cheann Comhairle

The Deputy will come to the vital point of the Order, soon.

Mr. MacEntee

I cannot destroy my argument by leaving out any significant fact.

Mr. M.J. O'Higgins

We will not be heartbroken if you leave them all out.

Mr. MacEntee

I must naturally rebut in advance the argument which will be made, perhaps, by those who wish to maintain Order No. 173 in force to-day, the argument that I was a member of the Administration which made it. I admit it.

An Leas-Cheann Comhairle

The Deputy is introducing matter which is entirely irrelevant. I warn him that he will come to the vital point of the Order or cease speaking.

Mr. MacEntee

Sir——

An Leas-Cheann Comhairle

I am not entering into any argument with the Deputy. He has clearly introduced a matter which is entirely irrelevant and it is forced on me that the Deputy knows that.

Mr. MacEntee

No, Sir.

An Leas-Cheann Comhairle

I shall not argue with the Deputy. I warn him. He will either come to the point of the Order or cease speaking.

Mr. MacEntee

The Chair can be as arbitrary as it likes. I have no redress but must bow to the Chair's ruling.

This Order touches, as I will show, every business in this State. It is an Order which gives to a Minister the right, by Order or direction, which direction may be given either in writing or orally, to enter and inspect premises used in connection with any undertaking. It is an Order which completely overthrows and destroys the safeguards of the Constitution. That could be justified in time of war but, as I was pointing out, war has passed. The "vital point of the Order" is what is contained in the Order and the relevance of my argument is that these powers, which might as I have said, have been justifiably given when the Order was made—and it bears on its face the date 1942—are no longer justified by the circumstances of to-day.

Consider what this Order permits the Minister to do, not the Minister for Industry and Commerce or the Parliamentary Secretary who represents the Minister for Industry and Commerce and who, on the responsibility of the Minister is asking the House to continue this temporary Supplies and Services Bill.

This Order recites that

"the Minister may by Order or direction provide

(a) for regulating, restricting or prohibiting the production, treatment, keeping, storage, movement, transport, distribution, disposal (including sale), acquisition (including sale), use or consumption of articles of any description."

Surely that is a very far-reaching power to give to any Minister. The Minister for Lands may exercise this power; the Minister for Justice may exercise it; and the Minister for Social Welfare may exercise it. "For regulating, restricting or prohibiting... the disposal" and then, in parentheses, are the words "including sale", so that the Minister may make an Order under the section regulating the making of gifts—the transfer, if you like, of a father's tie or his old suit of clothes to his son. It is all very well for Deputies to laugh, but that is one of the powers given in the Order. I am going to contend that in the circumstances of to-day these powers are quite unnecessarily wide.

Sub-paragraph (b) of the Order reads:—

"For controlling the prices at which articles of any description may be sold or purchased."

Mr. M.J. O'Higgins

Are you against it?

Mr. MacEntee

"Articles of any description"—a powder puff, a sponge, a postcard, a sheet of notepaper. Under that sub-paragraph, without any restriction or limitation whatever, a Minister—not the Minister for Industry and Commerce, who, under the Ministers and Secretaries Acts, has specific functions in relation to the distribution and exchange of the ordinary articles of trade and commerce, but any Minister —may come along and make this Order, and the Order is unchallengeable virtually. I think it was the Parliamentary Secretary to the Minister for Finance who asked me if I was against it.

Mr. Donnellan

It was not I who asked it.

Mr. MacEntee

It may have been Deputy M.J. O'Higgins. I certainly am against it in the unrestricted and unregulated form in which it appears in this Order, in the circumstances of the present day.

Mr. M.J. O'Higgins

The reason I asked was that Deputy Lemass appeared to be in favour of it.

Mr. MacEntee

I am against it for this reason also, that there are on the Statute Book of this State two Acts relating to the control of prices, under which there is a Prices Commission and a Controller of Prices. In the circumstances existing to-day, when we are told that supplies are flowing in freely and that in regard to many commodities there is not a scarcity but a surplus, an exportable surplus which it is anticipated will increase, there does not appear to me to be any justification for going outside the well-considered law of the land. These two statutes were debated at length in the House on Second Reading when the general principle of prices control was accepted, and, on Committee and Report Stages, when the application of that principle was examined in detail, with an eye not only to the interests of the producers, but the interests of the consumers. In the circumstances of to-day, I cannot see any justification for continuing the wide and, let me repeat, arbitrary powers which were conferred as a war-time measure in a time of great peril upon Ministers in 1942.

Sub-paragraph (c) of sub-paragraph (1) says:—

"For regulating, restricting or prohibiting the importation or exportation of articles of any description."

We are all anxious that there should be a large measure of freedom, the greatest possible practical measure of freedom, restored to international trade. I have read with great interest the many speeches which the Minister for External Affairs has made advocating the removal of all unnecessary restrictions upon international trade. Surely it is inconsistent with the eloquent pleas made by that Minister on behalf of this freedom of intercourse and freedom of exchange as between peoples and nations that the Government of which he is a member should propose to continue, as part of the statute law of this land, an Order which confers on the Minister for External Affairs or any other Minister the power to regulate, restrict or prohibit the importation or exportation of articles of any description. It is unfair of the Government to ask the House to continue these restrictive powers in force, while, at the same time, the Minister for External Affairs has occupied the limelight in Paris and elsewhere——

Mr. Donnellan

That is the worry.

Mr. MacEntee

——as an advocate of universal and general freedom of trade. I say that it is unfair to the Minister and it is certainly inconsistent. It is unfair to him because any person who reads this article, or any person to whose attention the article is brought, must immediately conclude that when these speeches were made, the Minister made them with his tongue in his cheek. I do not believe that. I think the Minister is very anxious to restore as large a measure of free trade as he possibly can, and I think that he should get some practical support from the other members of the Cabinet, to enable him to maintain the position he has taken up in Europe in relation to the matter by the repeal of Emergency Powers Order No. 173.

Sub-paragraph (d) of this Order provides for regulating the carrying on of any undertaking and, in particular, for controlling the charges which are being made by undertakers in respect of the doing of any work by them. "Any undertaking", not merely a transport undertaking", not merely a public utility undertaking like the gas company or the Electricity Supply Board, but any undertaking. Under this, the Minister would have power—it might be a useful power to have on occasions if you were a betting man—to regulate the odds that a bookmaker might lay in certain circumstances. It might be a useful power to have if you were a betting man and were making a winning bet. But, is there any justification for conferring that power upon a Minister in these days? Under this sub-paragraph, if I or any other Deputy, were running, say, a hair-dresser's establishment, the Minister could make an Order regulating the charge which the hairdresser would make, say, for attending to Deputy Davin's tonsure or looking after my own.

Mr. Davin

You have more to look after, anyway.

Mr. MacEntee

Perhaps I take more trouble with it. If I felt it necessary to run a photographer's establishment, and if Deputy Donnellan were to come in as a client, under this Order the Minister could regulate the fee which I would charge Deputy Donnellan, the Parliamentary Secretary to the Minister for Finance, for a sitting. I am quite jocose about these things, but if I am poking a little fun at others as well as myself, it is merely to show how ridiculous it is that, in the circumstances of the present day, we should have an Order so far-reaching as that in existence. Remember that this power to regulate the carrying on of any undertaking and controlling the charges may be exercised by the Minister either orally or in writing. Therefore, it is possible for a person to act without the Minister having any very clear, specific knowledge that he did give a direction orally. If the Order were to be challenged some years after the Minister gave the direction, or if the Minister were no longer available, under this Order there might be no record that such a direction had, in fact, been given. Things might be done under this Order—no doubt to some extent they would perhaps be remedied or the evil might be later limited as soon as the abuse of the power was exposed—in respect of which no direction of any kind or sort had been given.

What else may be done under the Order? Sub-paragraph (g) may enable the Minister to give a direction— because the power is exercisable either by Order or direction and legally there is a great difference between the two —for the production of books, accounts, records and documents relating to an undertaking by persons carrying on or employed in connection with such undertaking. Therefore, the employee of any businessman in this State, the employee of any farmer, a member of any family carrying on a family business under this Order, as it stands, might be required—I do not say he will be, but he may be—to act as a sort of snooper on his employer or on the head of his own family. Let me say that I have no knowledge that such a thing has been done. I do not know of any employee who has been asked to give this information. Nevertheless, that arbitrary power has been conferred on the Minister by this Order in the circumstances as they existed in 1942 and as they do not exist to-day. Whatever justification there may have been for conferring this power in 1942——

Mr. M.J. O'Higgins

Or in 1946 or 1947.

Mr. MacEntee

Or in 1946 or 1947— there is no justification for continuing this power in force at the end of 1949 and the beginning of 1950; for the only justification for conferring this power was that, if it were not conferred, the public safety would be endangered, the life of the State might not be preserved, or that supplies and services essential to the life of the community might fail. The whole argument that we have heard from Government platforms in recent years is that things have got back to normal, that there has been a considerable improvement in the condition of affairs since the end of 1947. That is what Deputy O'Higgins has been telling us and what the Taoiseach has been telling us.

Mr. M.J. O'Higgins

Since the beginning of 1948.

Mr. MacEntee

If the Deputy likes, since the end of the winter of 1947. That has been the catch-cry of the Coalition Parties since they took office: that things have generally improved, and no one is going to deny that things have generally improved. The only thing we deny is that the improvement is unique and confined to this country. It has been a general world improvement. So far as essential supplies have been forthcoming, it is now much easier to maintain essential services. Anybody who was abroad in 1945 or 1946, and who was abroad this year, knows how great and how vast the improvement has been in conditions on the Continent. They are incomparably greater than the improvement has been in this country, incomparably greater because there was less room for improvement here than there was in any continental country. But, however, conceding the arguments of the Coalition that conditions have improved in the last two years "until now, as they say," we have plenty of bread, we have plenty of tea, we have plenty of sugar, we have sufficient coal to run our railways—our electricity supply presents a problem—but in so far as the ordinary everyday things in common use are concerned, they are in reasonably plentiful supply. Why, therefore, is it necessary in these circumstances to maintain an Order of this arbitrary character imperilling the liberty of every citizen and the fundamental rights of every family, not to speak of every business?

What else does this Order provide? Sub-paragraph (h) provides:—

"For the inspection of and taking extracts from books, accounts, records and documents kept by persons carrying on any undertaking, and the verification, by persons carrying on, or employed in connection with, any undertaking, of extracts from any books, accounts, records or documents kept by the persons carrying on such undertaking."

Is there any justification for that power now? Does any Deputy know of any particular business, or any particular shop, in respect of which it is necessary that the employee should be compelled—because that is what this means—to give evidence against his employer, and to verify that books, accounts and documents, and extracts from these are, in fact, related to the business in which he is employed? Is there any single Deputy able to get up and say: "I know a particular business undertaking in respect of which at the present time that arbitrary power of compelling a person to disclose the confidence of his employer is essential in order to maintain the supplies and services which are necessary for the life of the community or the preservation of the State"?

Sub-paragraph (j) of this Order provides:

"for the entering and inspection of premises used in connection with any undertaking and the examination, inspection, and taking account of any articles on such premises."

A chemist's shop, or a doctor's surgery, could be entered under this Order if the Minister, or any Minister, gives a direction. I remember when the Public Health Act was going through this House in 1946 and when we were taking power to enter certain premises in order to ensure that food was processed under hygienic conditions, the uproar that arose on these benches at the mere fact that any person should be given arbitrary power to enter premises in order to see that the food which was being processed on them was being made under conditions that would not endanger the health of the community, or a section of the community. But, here we have in the year 1949, some years later, this power conferring upon the Minister, not in relation to the comparatively limited number of undertakings that are engaged in the preparation of food but in relation to any undertaking, the right of entry. Take, again, the ice cream parlour, the chiropodist's shop, the doctor's surgery. Each and every one of these could be entered and account duly taken of any article which might be found on such premises. The nail file in the chiropodist's shop, the stethoscope in the doctor's surgery, the pot of vanishing cream in the beauty parlour, could be solemnly taken and an account duly filed in the register of the Department of any Minister.

Again, let me put it, is there any possible justification for continuing in force an article of such wide and far reaching content as this in the circumstances of the present day for the taking of samples or articles found on the premises of persons carrying on any undertaking? That might be necessary under a Public Health Act. In that case samples are taken in respect of the public health provisions in relation to milk and butter and under the Food and Drugs Act. It is admitted that they are necessary, but, mind you, those powers were not given without a great deal of consideration and after prolonged debate, while the exercise of those powers is very carefully restricted and regulated by law. But here we have, as part of the statute law of this State at the present time, this comprehensive, omnibus power to enter any premises and take samples of any articles. It would be an agreeable job to have to do that in a brewery; but, let us look at the facts and ask ourselves again, are we justified in conferring these exceedingly wide powers at the present day on the Executive?

This House exists as an Assembly of the representatives of the people whose main function it is to ensure that the ordinary rights of the subject are preserved and that nothing is written into the law of the land which is fundamentally inconsistent with the maintenance of the ordinary popular liberties. Now, it does not matter when these powers are given or exercised. What does matter is this, that the powers should not be given, that it should not be within the compass of any Minister to exercise powers of such a wide and arbitrary nature, because it may be too late to protest when once these powers have been exercised. Therefore, the only safeguard the citizens have is that we should be reluctant to concede exceptional powers and, when the exceptional powers have been conceded, we should be impatient to secure their surrender on the part of the Executive.

I am not reading all these sub-paragraphs, but I will read sub-paragraph (n):

"for any incidental and supplementary matters for which such Minister thinks it expedient for the purposes of the Order or direction to provide."

That means the Minister can, in fact, do anything if he thinks it expedient to do it. I am not going to say that the present Minister for Industry and Commerce or his Parliamentary Secretary would do some of the things to which I have referred. But that is not the point. The point is that it should not be in the power of any Minister, whether we think he will abuse these powers or not, to do some of the things which he will be permitted to do under this Order. That is the real essence of the matter. Deputies should be as anxious as I am to ensure that these exceptional powers will be terminated at the earliest possible moment.

I will concede that in relation to some matters there is a need for them. Perhaps I have gone too far when I say I will concede there is a need for them. In relation to essential commodities there may be a case even yet for taking exceptional powers to control and regulate manufacture and distribution and perhaps importation. I am prepared to concede there may be a case for that. Accordingly, I would not ask the House, even if I thought I would succeed in persuading it, entirely to deprive the Minister of some of the powers he at present exercises under the Supplies and Services (Temporary Provisions) Act. I think, however, that we should have, as the minimum assurance that is due to the public, an undertaking from the Minister that the powers conferred by this Order will be charily exercised, will be exercised with full consideration and will only be used in relation to the manufacture and distribution of commodities which are undeniably and beyond all doubt essential to the life of the community, the preservation of the State, or the maintenance of public safety.

I feel that, simply because the machine gained such momentum during the war years, many things have been done under this Order which have not been fully adverted to. That is, that simply because things were done in the years 1943 and 1944, they have been done in 1949. Before Section 2 is disposed of I hope that the Parliamentary Secretary will say that he will have a thorough review made of all the activities of his Department which are now being carried out under the powers conferred by Order 173 and that he will definitely give a direction, since he has the power to do so, that henceforth the activities of the Department in enforcing this Order will be confined to the manufacture and distribution of goods which are essential to the life of the community, the preservation of the State and are in the interests of public safety.

Parliamentary Secretary to the Minister for Industry and Commerce (Mr. Cosgrave)

With some of the remarks of Deputy MacEntee I can agree, but it is worthy of comment that the Opposition have only recently taken note of particular provisions in some of these Emergency Powers Orders. Some of these Orders were made at a time when supplies were scarce and when other difficulties confronted the country. I think the particular case in which the Deputy is interested first came under notice in 1945, when the accounts of a particular firm were requested for examination in the Department. The accounts were submitted and subsequently an application which had been received for increased charges was sanctioned. The accounts were again requested in 1946 and 1947 and, also, last year. Up to 1947 the Deputy was a member of the Government that requested the accounts to be presented and at that time, so far as this service was concerned, circumstances were no different from what they are at the moment.

As regards this particular case, even before the Deputy raised it here, a direction had been given that no action was necessary and that the accounts would not be requested in future. The powers provided in Emergency Order No. 173 give the Government and any Minister power to control the export or import of any article or commodity. I think it is only reasonable that powers of that nature should be continued. I do not think any Deputy would suggest that we should allow the free export of cement, in view of the fact that we are importing it to supplement our home requirements; that we should allow petrol bought with dollars to be exported; that we should allow butter to be exported freely until we have sufficient to meet our home demands; or that we should allow the export of sugar, or machinery purchased with dollars, or any other commodities that we are obliged to purchase abroad with hard-earned currency and that we need to meet our requirements at home.

It may be that some of the powers in this Order are unnecessarily wide, but I think the House will agree that it would be difficult to amend in detail a number of those Orders. We had a review in the past year of every Order, and a number of them have been revoked wherever the examination showed that the powers conferred were no longer required.

Mr. C. Lehane

Would the Parliamentary Secretary say if that was a review carried out by the officials of the Department concerned?

Mr. Cosgrave

It was a review carried out at the direction of the Minister. The nature of the report furnished to the Minister was such that, as I said on the Second Stage, a comprehensive list will shortly be on sale of the Orders revoked. As Deputies are aware, whenever an Order is revoked, publication of such revocation is always made in Iris Oifigiúil, and sometimes in the Press. Some of these Orders have been revoked because they are no longer necessary. It would probably require more work than the actual amendments effected would warrant to carry out an investigation into the various sub-heads of individual Orders with a view to having them amended; but, in so far as a general review of Orders is concerned, one has been carried out and all Orders no longer required are being revoked.

The particular powers which this Order conferred and which were used in the particular case are, in so far as a service of this nature is concerned, no longer required. It is necessary, however, to control exports just as it is necessary to control certain imports. For that reason it is only right to tell the House that these powers should be continued; but I give the House and the Deputy an assurance that in the particular case to which he referred— and the House will accept my word on this—there is a note upon the file to the effect that no further action should be taken. The Government has given careful and anxious consideration to the various Orders still in operation. All Orders no longer required have been revoked and steps are being taken to revoke those which are no longer necessary in present circumstances.

Question put and agreed to.

Sections 3 and 4 and Title agreed to.

Bill reported without amendment.

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

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

Mr. MacEntee

On that, I would like to say that the Parliamentary Secretary has referred to a matter of which I have knowledge. I would like to make it quite clear that was not the reason why I raised this matter. It was only when my attention was particularly directed to it that I appreciated the far-reaching extent of this Order. In reference to the matters to which he has referred, petrol, butter and cement, I quite agree that it is necessary we should have power to regulate the import or export of these articles. They are, however, essential to the life of the community. My only anxiety in relation to the whole of this exceptional legislation is that we should be alert to ensure that as soon as the conditions which make it necessary to have these laws on the Statute Book pass away, whether in part or in globo, we should be earnest in our endeavour to ensure that such exceptional legislation disappears with the disappearance of the circumstances and conditions which called it into being.

Mr. Cosgrave

The only reason why I mentioned the particular case was because the Deputy himself mentioned it on the Committee Stage.

Question put and agreed to.