Dáil Éireann debate -
Wednesday, 26 Oct 1960

Vol. 184 No. 1

National Loan, 1960. - Veterinary Surgeons Bill, 1960—Second Stage.

Minister for Agriculture (Mr. Smith)

I move that the Bill be now read a Second Time. The purpose of this Bill is to rectify the existing unsatisfactory position in relation to the exercise by the Veterinary Council of Ireland of its disciplinary powers.

The existing provisions relating to the council's disciplinary powers are contained in the Veterinary Surgeons Acts, 1931 and 1952. Section 34 of the Act of 1931 provides that the council may erase from the Register of Veterinary Surgeons persons convicted of crimes. Section 36 of the same Act provides that the council may, where it finds after due inquiry or investigation that a person has been guilty of professional misconduct, erase the name of such person from the register. Section 7 of the Act of 1952 provides for suspension of registration on account of professional misconduct.

The validity of these provisions has, since the Supreme Court's ruling on the Solicitors Act, 1954, been open to doubt and as a consequence the Veterinary Council has found itself obliged to refrain from exercising in any case these powers of erasure or suspension of registration. The council has expressed to me its deep concern at the present unsatisfactory position and its anxiety to have the position rectified in the interest of the veterinary profession. The Council of the Royal College of Veterinary Surgeons is equally anxious that this should be done so that the reciprocal arrangements in the matter of disciplinary proceedings, as provided for under the veterinary agreement with the British Government, should again effectively apply.

The present Bill embodies the proposals for dealing with the situation. These proposals involve the modification of Sections 34 and 36 of the Veterinary Surgeons Act, 1931, and of Section 7 of the Act of 1952 to provide that erasures, or suspensions of registration, on account of conviction for crimes or of professional misconduct could be effected by the council only on direction of the High Court. The council would as heretofore be enabled, after due inquiry, investigation, or consideration of the case as may be required, to decide that appropriate disciplinary action (that is, erasure or suspension of registration) should be taken. It would be open to the person concerned to apply within 14 days to the High Court for cancellation of the council's decision and the High Court, on hearing the application, would either cancel the decision, or confirm the decision and direct the council to take the appropriate disciplinary action, that is, erasure or suspensions of registration. Where the person concerned did not within 14 days apply accordingly to the High Court, or where he delayed unduly in proceeding with an application, the council would be enabled to apply to the High Court for confirmation of the decision and the High Court would, unless it saw good reason to the contrary, confirm the decision and direct the council to take the appropriate disciplinary action.

These, then, are the purposes and general provisions of the Bill. Its construction is simple: it substitutes for Sections 34 and 36 of the Act of 1931 two new sections providing for the proposed procedure I have already explained. The new Section 36 deals both with erasures and suspensions of registrations on account of professional misconduct; section 7 of the Act of 1952 containing the existing provisions relating to suspensions is being repealed. The other repeals provided for are also consequential ones.

The Veterinary Council of Ireland has, of course, been fully consulted. The council welcomes the Bill and has expressed complete agreement with its provisions.

Mr. Dillon

We are in favour of a Bill to give the veterinary surgeons' professional authority adequate power to maintain the standard of ethics appropriate to the profession. Therefore, we are in full sympathy with the purpose of this Bill, but I should like to have a reassurance from the Minister for Agriculture that the terms of this Bill do not conflict with the Constitution. I fully appreciate that all the Minister can say to me in that context is that the matter has been referred to the law officers of the Government and they have so certified to him. I should be glad to have that reassurance with special reference to the provisions of the First Schedule of the Bill, Part I, subsection (5), which declares that the decision of the High Court on an application under this section shall be final.

When considering that proviso, one must look back to the conditions under which a person's name can be erased from the register. It states:

Where a person registered in the register is convicted in the State of treason or of a felony or a misdemeanour or is convicted outside the State of a crime or offence which would be a felony or a misdemeanour if committed in the State, the Council may decide that the name of such person should be erased from the register.

A veterinary surgeon may appeal to the High Court to have that decision cancelled and his name restored to the register. I do not understand how this Oireachtas can, under the Constitution, declare that the decision of the High Court on an application under this section shall be final. I do not profess to be a lawyer or a constitutional authority, but I understand that there is a precedent for the proposition that on a matter of undiluted fact, you can prescribe the High Court shall be the final authority but that where there is a question of mixed fact and law or a question of law involved, every citizen in the State has the constitutional right to appeal from the High Court to the Supreme Court to have that question definitively determined.

We have run into difficulties exactly similar to those which I now envisage in regard to the first Solicitors Act passed by this House. Under the old procedure of maintaining the disciplinary regulations of the Solicitors' profession, disciplinary matters were the province of the Chief Justice. Under the new Act we sought to refer these matters to the President of the High Court. As I understand it, in the new Solicitors Bill which we shall be considering immediately after this Bill, there is a provision that the decisions of the High Court on an application under this section shall be final.

I think there is good reason to believe that if that is submitted to the Supreme Court for determination as to whether it is in conformity with the Constitution, the Supreme Court will decide that it is not. I cannot myself see, although I am quite prepared to hear argument to the contrary, what is the purpose of subsection (5). Why can we not leave it open to an aggrieved party, who believes that there is some question of law to be resolved in connection with his case, to go to the Supreme Court if he wants to go? The power under this will rarely be used. There is no question of a vast volume of vexatious litigation taking place. Why, then, are we concerned to insert subsection (5) at all?

I can imagine a case arising, where a person is alleged to have been convicted of treason or a felony or a misdemeanour, of that person who is to be struck off the roll of veterinary surgeons imagining himself to have the right to argue that what he was found guilty of doing did not come within the statutory definition of treason, felony, or misdemeanour and that, therefore, the act of striking him off the roll was wrong. If the High Court disagreed with him, he would feel he had a good case involving fact and law or involving only pure law upon which he should have the right to go to the Supreme Court. I am at a loss to know why he should not be left that right to exercise, more especially in that if we seek to take it from him, it is not at all impossible that the whole of the statute would be declared unconstitutional.

Subject to that qualification, we have no objection to the Bill but. I think the Minister would be well advised—if he is advised by the law officers—to stand on the terms of the Bill as submitted. Then, if the Bill passes into law, I think he would be well advised to take the appropriate steps to have it referred to the Supreme Court for a specific decision in regard to the matter I now raise. If that is done and it subsequently transpires that inadvertently we have transgressed the Constitution, the matter can be put to rights. If, on the other hand, we do not take that precaution, at some later date when the Council of the Veterinary Profession seeks to enforce an order against a defaulting veterinary surgeon, and the first time the veterinary surgeon goes to the Supreme Court, the whole Act is declared unconstitutional, we shall find ourselves in a very awkward position. Also, bearing in mind that we have close reciprocal arrangements with the Veterinary Council in Great Britain, we might be involved in not a little embarrassment because it should be borne in mind that in Great Britain there is no written Constitution and their professional authorities do not readily understand an Act of Parliament being declared null and void for transgressing the Constitution as such a thing is not possible there. Subject to these remarks, we do not propose to oppose this Bill.

Mr. Smith

However knowledgeable the law officers may be, they can be subject to error but, having regard to the way in which the need for amendment of the law arose in this case, they would not require any warning from any person as to the desirability of being tremendously careful that they did not again provide something that might result in the same sort of situation as arose and made it necessary for me to come in here with these proposals.

I can express a personal opinion as to the advisability of not only providing for an appeal to the High Court against a recommendation of the council but also of allowing it to go still further to the Supreme Court, but, after all, the procedure that will be followed is this: the council in some way or other will be made aware of a transgression by a member of the profession. They will then proceed to examine all the evidence on which they are able to lay their hands and, having examined that evidence closely, they will arrive at a decision. I suppose it is not really a decision, in the sense that it is subject to appeal, but anyhow, they then notify their conclusions to the person whose case they have been investigating, and within 14 days, that individual has the right of appeal to the High Court. One may take it that if he exercises that right he will naturally supply all the evidence he can in order to establish that the decision or recommendation made by the council is not based upon fact.

In such a case as that, the council of the man's profession may recommend that his name should be erased from its rolls, that he should be suspended, but surely a body like that could not be regarded as a body that would act with haste or hostility to him and, even after that, he has the right of appeal to the High Court. I am not competent to express an opinion as to whether that conforms with the Constitution, but to me it looks fair and reasonable, and I am sure the Attorney-General and the law officers have met the challenge which this gave them to provide an instrument that would fill the gap and enable the council to deal with the members of its profession and, at the same time, provide the necessary coverage, so far as constitutional requirements are concerned. That was the net point they had to meet, not only in this Bill but in the Bill that is to follow, and, as I say, I have the assurance that this Bill makes that provision. That is as far as I can go.

Question put and agreed to.

Committee Stage ordered for Wednesday, 2nd November, 1960.