I compliment Deputy Desmond on that part of his speech that I heard. While it would not have been in order to cheer him, I wanted to do so. I agree with many of his remarks. As a Member of the Labour Party, the Deputy deserves credit for having had the courage to express those remarks without any ideological wrapping.
The Bill is expressed to be an amendment of the 1971 Fuels (Control of Supplies) Act, but, as Deputy Barry said yesterday, when the 1971 Act was introduced as a Bill by Deputy Lenihan, who was then Minister for Transport and Power, it was promoted openly as an emergency measure to take account of future emergencies. The then Minister said fairly, in those days more than ten years ago, that he sincerely hoped the legislation "would go into cold storage". I am referring to column 113 of Volume 252 of the Official Report. The Minister spoke repeatedly in his opening and closing speeches of an "emergency". Clearly the Act was aimed at dealing with a situation caused by a shortage of fuel.
The Bill before us is aimed at something quite different. I will not raise a constitutional alarm about it but it is undesirable that legislation which was intended originally to cover a possible emergency created by a shortage of fuel should be used as a vehicle for something different. As described by Deputy Desmond, this Bill is no more than a Bill that has resulted from the exigencies not of the common good but of the 1982 general election. The fear and the emergency that was in people's minds on both sides of this unfortunate house was not that fuel would become scarce, because presumably if there was a shipping shortage, the supplies of crude as well as of refined oil would be affected, but the fear that the voters around the district affected by the Whitegate refinery might turn and rend whatever party could be represented to them by their opponents as having let them down. I am sorry to say that what Deputy Desmond has said is true. I am ashamed to have to say that. It is one of the reasons for my speaking from the third bench and also why I hope that in the years to come forces in this House will reorganise themselves in such a way that such an event will no longer be possible and that no lies will be told to put a face on what is being done now.
Having said that, it is only fair to say that I recognise that there are some obvious concrete and stateable reasons in favour of having our own oil refinery though that is a view that I do not share. However, there are some such arguments and there are people who believe sincerely in this concept. It is a view that is shared obviously by officials in the Department. Therefore, I must not be thought to be hitting out all around me. But what I very much doubt is whether at a time of financial stringency those arguments should outweigh any other. In particular, and this is a technical matter, I doubt very much as a lawyer whether it is proper or good practice to use an Act brought into law originally for one purpose as the vehicle for something quite different —"let us have the refinery and let us force the companies who operate to buy the products at whatever prices it may suit us to charge them. Let us forbid them to do business otherwise." Regardless of what face the Minister may try to put on it, that is not part of an emergency. There may be people on my side of the House who would have been willing to read the speech that the Minister has read for us on this Bill but this House is not about the business of using one Act as a shell or a vehicle for something quite different.
As the Minister has made clear, the Bill aims at what the accompanying explanatory memorandum describes as "mandatory disposal". The use of that phrase is simply a pompous way of saying that we will force someone to buy something he does not want, or that we will force him to buy something that he may want, but at a price which he is not willing to pay and which he never would pay on a free open market.
If I were a visitor from some other part of the English-speaking, common-law world and were shown this Bill and asked what it is all about, and if I were given also a copy of the 1971 Act with which to compare the Bill, I should be quite foxed as to the purpose of the Bill. I say this because in the business end of the Bill, that is, section 6 which substitutes various provisions for the old section 2 of the 1971 Act, all that is provided is power for the Minister to regulate, not just the "supply and distribution" of fuel, as was the case in the 1971 Act, but the "acquisition, supply, distribution and marketing" of fuel.
The marketing of cabbages is regulated in the Dublin market. Undoubtedly the seller must produce, by reason of various by-laws, his produce in a clean and healthy condition. Likewise in the fish market one would not be found offering for sale fish that was verminous or which was in any other way a hazard to health. On a reasonable construction of the situation it could be said that the authority who are enforcing these by-laws are "regulating the acquisition and marketing" of the products. However, a visitor from, say, Australia or New Zealand could well read with the aid of a magnifying glass the Bill before us and not guess that what was in view here was "mandatory disposal". There is not a line in this Bill which says that the acquisition and marketing is to be regulated in such a way that the unwilling purchasers, the unwilling people necessarily present in the market, are to be forced to go home with a load, as the case may be, of cabbage or fish or, as in the case of this Bill, a particular kind of fuel; not a word. I want to warn the Minister — it is only a technical point — that he may find that what we are enacting here is no more than a piece of paper with no legal effect. I object very much to hole-in-corner legislation which, only in its accompanying Explanatory Memorandum, has the guts to say that what we are at here is to force somebody to buy something he does not want at a price he does not want to pay. But, when we produce the actual Bill, there is not a word in it which makes that intention plain. I will laugh if the Minister subsequently falls on his nose when the court, the High Court or Supreme Court before which oil companies may challenge this legislation, says this Bill entitles him to "regulate" the marketing and the acquisition of fuel oil, but does not entitle him to force somebody to buy his oil, or the oil of his semi-State body and nobody else's so far as concerns 35 per cent of their offtake.
I have a couple of minutes left only and I do not want to cut in on Deputy Lyon's time. I will make them as quickly as I can. If this Bill is enacted and is not thrown out the window for the purely technical drafting reason to which I have adverted, if no other objection were available against it, and it can be used to force companies to take 35 per cent of their supply from Whitegate at a price to be determined by the INPC, what essentially is now happening is that the companies are being, in a kind of way, subject to a breach of their ordinary rights of property. I want to make it clear — as I have had to do on frequent occasions here before when dealing with fuel questions — I am not a shareholder in any oil company, I have not been lobbied by any oil company. Indeed if I were lobbied by them I would treat them as I treat all lobbies. I have no interest in oil companies, good bad or indifferent, direct or indirect. But oil companies, like any other kind of a company or individual, have rights here. When they find themselves forced to take a particular product at a price they do not want to pay, or a product which they do not want, and if they are not allowed to recoup that price in what they charge to their ultimate consumer, then they are being, in part, expropriated. If I have not misunderstood the current Supreme Court jurisprudence on this question, they are being unjustly attacked in their property rights.
It may be that that unjust attack can be mitigated or perhaps rendered entirely harmless by permitting these oil companies to charge the ultimate consumer enough money by way of the ultimate price for the product as to recoup them for the loss which otherwise they would have suffered if forced to take the Minister's oil at the Minister's price. Therefore, as Deputy Barry Desmond said — in far less words than I have felt obliged to use — the suffering Irish industry and the suffering Irish public will be paying the price of this measure. That may be so. If that happens, I want to say this — quite apart from the obvious implications for industry and the ordinary consumer being forced to pay more, implications which will spread throughout the economy in terms of inflation, and the Minister need not deceive himself about that — we will then be witnessing a detrimental effect of a partial monopoly, because a monopoly means that you dictate the terms of the market.
The Minister is proposing now only to dictate 35 per cent of the market, the terms of 35 per cent of oil sales in this country. But I can see some other Minister oiling into this House and saying: I think the time is ripe and it would be appropriate, all things being considered, to make that 35 per cent 45 per cent or, for all I know, 55 per cent, when we would be creeping up and up towards a situation in which there would be a monopoly or near monopoly. A monopoly under our law and Constitution — introduced by the founder of Deputy Reynolds' party, for which all those who came after him are all too willing to take credit, although they do not want to take responsibility for the darker, shadowy sides of the Constitution — is not defensible. A monopoly is not defensible here unless it operates in the public interest. And who is to say that the public interest is served if we end up with a situation in which the ordinary consumer is paying 10 pence, or whatever, a gallon more for the product merely in order to keep the large political parties' noses clean over a situation which might have developed in the east of County Cork during the 1982 general election? I do not want to be part of any such decision. Naturally I cannot escape the collective responsibility which I bore as a Member of the Government which initiated this, and I do not seek to escape it, but I now do not want to bear that responsibility. I want to warn the Minister opposite, who is now in a situation of sharing collective responsibility for what is happening here this evening, that he is stepping into an embryonic monopoly situation which, if the courts here remain free and independent, and operate as they have been up to now, may leave him defending a situation which is not in the public interest, and defending it with no weapons worth talking about.
