Dáil Éireann debate -
Thursday, 8 Mar 2001

Vol. 532 No. 3

Order of Business. - Diseases of Animals (Amendment) Bill, 2001: Committee and Remaining Stages.

Section 1 agreed to.

SECTION 2.

Mr. Penrose:

I move amendment No. 1:

In page 5, between lines 29 and 90, to insert the following subsection:

"(9) Any information given by a person pursuant to a request or requirement under subsection (8) shall not be admissible in criminal proceedings against that person (other than proceedings under subsection (14)(c)(i)).”.

This amendment seeks to insert a new subsection. There is a corpus of law at European Convention level and at Supreme Court level here on this. Obviously an inquiry can be made by an authorised officer of the Minister, which I accept, and one can extract information from people, which was confirmed by the Supreme Court in the NIB case. It can also be an offence not to comply with requirements not to supply information.

However, one cannot use the evidence extracted in proceedings against a person. This is privilege against self-incrimination, which I am anxious for the Minister to examine. I am willing to withdraw the amendment if the Minister shares my understanding that this reflects the current state of the law. If he does not I will have to press the amendment, as information extracted cannot subsequently be used in criminal proceedings. If that is correct and the Minister agrees then this is a declaratory amendment; it would be superfluous and I would not press it. However, if he does not I will press it because I want to ensure we are in compliance with European law. Considerable protections under laws passed here are being done away with and I am not happy with that. I want to ensure my amendment is declaratory, as is the current position and as some of his officials will understand, and that being the case I will not press the amendment.

Minister for Agriculture, Food and Rural Development (Mr. Walsh):

Yes, that is my understanding and the legal advice available to me is that this matter is dealt with by existing constitutional jurisprudence. The issue was dealt with in considerable detail in the Seanad yesterday, as were many other amendments, and the NIB staff case was mentioned yesterday also.

Amendment, by leave, withdrawn.

Mr. Penrose:

I move amendment No. 2:

In page 5, line 41, after "liable" to insert "in damages".

This amendment also seeks clarification. With respect to those who drafted the legislation, "any proceedings" is too wide. The judicial review remedy should lie against any authorised officer. It is as simple as that. If we took the literal interpretation, as opposed to the schematic or teleological interpretation, we should realise that under the recent treatise on statutory interpretation from the Law Reform Commission that everything said in the House will be taken on face value by the courts. That is a new departure, as my colleague Christopher Doyle and others can tell us. If an authorised officer is in the process of clearing out a farm and the farmer is aggrieved, obviously the farmer could seek an injunction. If one interpreted section 13 literally, the literal interpretation is that that would not be the situation and that this would be restricted.

As I understand it, this provision confers complete immunity, including immunity from judicial review and is far wider than intended. It is greater than the powers the Minister would have, as the Minister could be brought up before the courts in relation to this but it puts an authorised officer on a par with the President. Obviously one can grant immunity from torts, which I am not disputing, but this provision is too wide and I urge the Minister to examine what I am saying carefully, as it is submitted in a constructive fashion. While the exemption from or immunity in tort can lie in relation to an authorised officer, this is too wide and "in damages" would solve many of the problems here by restricting the provision enough. Every administrative decision can be subjected to judicial review and if one interpreted this provision literally it would restrict that right. It could well be interpreted as restricting a person's right to proceed by way of injunction in a civil case. I seek clarification of this.

Mr. Walsh:

The reasoned advice to me is that it is considered that this amendment would limit the measure unreasonably. The protection should be wide enough to reasonably protect officers who are undertaking a difficult task. Those officers are of course expected to ask reasonably and in good faith.

Mr. Penrose:

I reluctantly withdraw the amendment. When this legislation comes back I will seek a review of this matter. It should be re-examined.

Amendment, by leave, withdrawn.

Acting Chairman:

Amendments Nos. 3 and 9 are related and may be discussed together by agreement.

Mr. Penrose:

I move amendment No. 3:

In page 6, line 48, to delete "12" and substitute "6".

Mr. Dukes:

Amendment No. 3 substitutes 12 months for six months in part of section 2. Amendment No. 9 deals with the period during which this legislation will be valid. I cannot see what connection they have. They do not sit together.

Acting Chairman:

It is the decision of the Ceann Comhairle's office.

Mr. Penrose:

My amendment substitutes "six" for "12" while the import of the amendment put down by Deputy Dukes is to substitute "four" for "12". The Deputy is providing that the Bill will cease to have effect four months hence.

Mr. Dukes:

In my copy of the amendments, amendment No. 9 proposes that the "Act shall lapse and cease to have effect on 1 June 2001". It has nothing to do with amendment No. 3 so there is no reason to take them together.

Acting Chairman:

They can be discussed.

Mr. Dukes:

The purpose of grouping amendments is to discuss together amendments that are in some way related. Amendment No. 9 in my name and those of my colleagues has nothing to do with Deputy Penrose's amendment. There is no reason to discuss them together.

Acting Chairman:

We do not have to discuss them together. Will we take amendment No. 3 separately?

Mr. Walsh:

I have no problem with that.

Mr. Penrose:

My party colleagues put a substantial amendment before the Seanad yesterday. We were seeking a review clause in relation to this legislation. Given its temporary nature, matters of which we are unaware might slip through. There might be areas where there is no need for the legislation, areas might need to be strengthened or something might be omitted. We are seeking that the legislation remain in force until the expiration of six months from the date of its passing—

Mr. Dukes:

On a point of order, I have no wish to interrupt Deputy Penrose but can we clarify what we are doing? I have the list of amendments – the paper is green – which I received some minutes ago. Amendment No. 3 refers to line 48 on page 6 in section 2. It deals with the length of the term of imprisonment that may be imposed on summary conviction. I want to be sure that all Members have the same list of amendments. I received this list 20 minutes ago and if there is a more recent list, I would like to get it. The debate could be adjourned until all Members have the same list of amendments.

Mr. Walsh:

Perhaps I could be helpful. Amendment No. 3 states: "In page 6, line 48, to delete ‘12' and substitute ‘6'." My understanding of the amendment is that Deputy Penrose believes 12 months is too long a term in relation to section 17(f2>a) and he wishes to reduce it from 12 to six months.

However, amendment No. 9, in the names of Deputies Dukes, Crawford, Connaughton and Sheehan, refers to the Bill and not just to section 17(f2>a). It provides that the "Act shall lapse and cease". That is my understanding of the difference between the two amendments.

Acting Chairman:

Is that agreed? Agreed.

Mr. Penrose:

That is my understanding too. Why is the Minister proposing 12 months? Why would it take 12 months to deal with some of the extraordinary powers that are being provided for in this Bill? This is an important insertion into the principal Act. Will a consolidated Bill be brought forward rather than making piecemeal insertions into the Act?

I support Deputy Dukes's amendment. Why should it take 12 months to find out whether the extraordinary measures being introduced are necessary or require modification or strengthening? They might need to be strengthened in relation to matters that might evolve or unfold over the next six months.

Mr. Dukes:

My proposal is to telescope the procedure further. It is extremely optimistic to think we might be able to look at this issue again, having put it behind us, early in June. At this time, there is no realistic prospect that we can expect to be out of the woods, so to speak, by June. That is not meant as a criticism but to point out that, given the situation in the UK at present, it is not a likelihood.

I agree with Deputy Penrose that we need to examine this again in a more relaxed climate. There are provisions in the Bill that make everybody a little uneasy and we will discuss them later. My experience of emergency legislation has been rather bad. Only two emergency measures in the past 20 years have worked well. The others did not appear to have much effect and a couple proved useless, mainly because they were a response to a mood at a particular time without any sense of perspective. It was a case of rushing in to get ahead of popular opinion, public perception or the then fashionable notion of political correctness. That is not a good way to legislate.

The Minister agrees with the point we are making but there is no reason to wait a year. I do not know if anybody is in a position to make a judgment on this. I hope, however, that by the time six months have passed it will be realistic to look again at wartime measures in peacetime, as it were, and judge them. Some measures in the Bill will continue to have effect in peacetime. There is, for example, a system of regulation of dealers. I am not arguing against it but it would be useful to examine it again at a less fraught time. There is also, of course, provision for the 30 day retention rule which would not apply in peacetime, although many people fear it could apply permanently. My interpretation is that it would not. When this crisis is over we will be in a position to consider whether that measure was effective.

While my proposed date of 1 June is excessively optimistic, the Minister's proposal of 12 months is excessively lax. In those circumstances, we might find a consensus around the territory proposed by Deputy Penrose.

Mr. Walsh:

The point that this is emergency legislation has been well made. As legislators in a democracy we must be extremely careful and I accept the two Deputies' comments in that regard. In fact, I have occasionally initiated legislation in the Seanad to encourage public debate as well as debate in the House. That is most worthwhile. Debate in the Houses of the Oireachtas and among the public results in better legislation.

In this case, the Office of the Attorney General was asked only a few days ago to draft legislation. This legislation was passed by the Government on Tuesday and we will enact it on Thursday. I agree with the Deputies and support the amendments accepted in the Seanad that the legislation be reviewed. The question is how soon that review should take place.

Deputy Penrose's amendment suggests a review regarding authorised officers while Deputy Dukes's amendment concerns a review of the entire legislation and in a shorter time – up to 1 June. There is no doubt that authorised officers are being given extraordinary powers which would not be tolerated in peace time. One would not need to be a civil libertarian to find the powers objectionable as they are very wide ranging. However, at the height of the hysteria a few days ago, the demand was for even more draconian powers.

When the national herd and the economy are under threat, substantial powers and penalties are required if someone is questioned and refuses to co-operate or leaves the jurisdiction, as happened in this case. In such circumstances it is difficult to trace from where the disease is coming.

Deputy Dukes noted that there are welcome provisions in the Bill which needed to be introduced for some time. There was chicanery involving switching of tags and I remember a time when people kept tags in the boots of their cars. Some people took pride in their efficiency at removing and replacing tags. There is no place for that kind of activity in the industry. We have an agreement with the social partners on the introduction of sheep tagging.

Dealers are required given the nature of our system of cattle and livestock production where some animals are sold as drop calves, stores or finishers and where the live trade involves more than 400,000 animals per year. We do not wish to unduly disrupt that business but this crisis has highlighted a problem. Some people, for example, buy sheep in Carlisle, as in this instance, which are taken to Nothern Ireland for processing. The animals never arrive at the processing plant but are taken to what might be called a depot, the tags are switched, the animals are taken into the Republic where they are kept at another depot or farm for some time. Much illegality, smuggling or whatever one wants to call it, is going on.

It is extremely difficult to trace sheep from a factory, farm or depot. One is talking about a small number of dealers. The Bill proposes to register these dealers and put some order on the situation. That is a good idea as is the suggestion regarding tagging. This section of the Bill will be worthwhile but it will need refining. The question is when that refining will take place.

Deputy Dukes rightly stated that we do not know what the extent of the crisis will be or how long it will last. We can only go on previous experience. The last outbreak of foot and mouth disease in Britain lasted up to eight months. I hope that will not be the case on this occasion but we are not in a position to say, given that the disease is rampant in Britain. The largest number of new cases were announced yesterday which were geographically spread throughout the country.

If one accepts that it will take six months, it is desirable to have some period of calm or peace after that in which to review the legislation. Some of the provisions may prove over the top, some might not be used as they were introduced in the hysteria of the moment. However, other provisions will be worthwhile and will work out well.

Twelve months is a reasonable period. I do not want too long a period as I accept the principle of a time limit. We have decided on 12 months as we do not know how long the outbreak will last – we hope it will only be for a short time. Deciding on a short period of three or six months could cause difficulties. For example, some situations in which authorised officers track down dealers who are behaving illegally are very complex. In some cases animals are entered in one person's name, paid for in another person's name, bought, sold and resold and the investigations can easily take up to six months. Bringing cases to court could easily take seven or eight months and that is why I have suggested 12 months. I do not wish to elongate the period more than necessary. I accept that the legislation needs a thorough review and that is why I will insist on 12 months.

Mr. Connaughton:

The authorised officers are being given very strong powers and this issue will have to be monitored. I do not wish to give the impression that because people are being given powers they have not had before they will not use them properly. I hope these powers will be properly used. However, I am concerned that they will be on the Statute Book where they are likely to remain for a substantial period.

I am not sure whether the Garda, Customs and Excise or the Revenue have some of the powers being given to authorised officers. We are talking about people who have no training or experience in the use of such powers. This is a dangerous situation.

More technical matters will be raised later. The powers being given to authorised officers are draconian and I fail to see why the situation cannot be reviewed in six months. I will not make an issue of this as other Members will have much to say about this matter. However, six months would appear to be the correct period if there is something fundamentally wrong. After six months one would have an idea of how the situation would develop.

Other provisions in the Bill will create havoc from an administrative point of view unless they are well thought out. I hope mechanisms will be implemented to ensure people are treated fairly. We want to root out the rogues who do not do their jobs whether they are farmers, dealers, agents or sloppy administrators, at whatever level. Perhaps 99% of people involved are fine, decent, law-abiding people. The Bill is welcome in that it will license, control and monitor all movements. However, I have serious reservations about how this will be administered, where the power will lie, who will use it and who will make the decisions on the ground. I agree with my colleagues that the sooner we return to the House to review the legislation the better, in case anything goes dramatically wrong. That is why I thought the Minister and his officials would accept that six months would have been the correct period after which to review the legislation.

Mr. Crawford:

I understand that once authorised officers have been appointed and given their warrants they will be in control. I am extremely anxious about this type of legislation being left on the Statute Book for too long. I have had experience in other areas where people with similar powers seem to deal unreasonably with ordinary people. The enacted legislation should be reviewed at the earliest possible date so that if problems arise we will be able to deal with them. Rogue dealers should be dealt with in the strongest possible way, but we must make sure that over-zealous individuals do not make this situation very difficult for ordinary people who do not need draconian methods to force them to co-operate fully with the law.

The Minister mentioned the issue of tags and during my long apprenticeship in a farm organisation I recall bringing departmental personnel to Northern Ireland to examine how the system worked there. It is completely unrealistic for us still to issue cards. People are writing out cards and passing them back and forth like yo-yo's all over the place. Earlier this week the Minister introduced a permit system under which every animal has to be moved. I cannot understand how such a system can be introduced in an emergency, yet cannot be brought in for normal trading.

Problems can arise when tags and cards do not match up. The Minister may claim the new tagging system is better but I can guarantee that cattle dealers are able to circumvent it. They only have to send down to Bandon for a replacement tag and who knows to what animal that ID will relate, or whether it is from the North or the Republic? While that may appear to be a minor point, it certainly poses a genuine problem.

Last but by no means least, we have the sheep tagging debacle. On television recently, the Minister said he had a great relationship with the farm organisations and everything was working out well. His junior Minister has put it on the record, however, that sheep tagging was not introduced earlier because of difficulties with farming organisations. The Minister should clearly state what the situation is. He said he had obtained agreement from the national farming organisations to introduce sheep tagging from 1 March, but he also admitted he was not sure what type of tags were involved. To monitor the position by means of this legislation, we must ensure that sheep are tagged so we know what is happening. In light of this, the legislation should be reviewed at the earliest possible date. We are seeking a situation whereby the legislation can be reconfirmed by the House, if necessary. That would afford us an opportunity for debate in a calmer, less trenchant manner.

Mr. Penrose:

While I know what the Minister is seeking, we must take cognisance of the extraordinary powers we are investing in certain people, either under the new section 17A or in the overall provisions of the Bill. Some of the powers are extremely necessary and I hope they will be successfully implemented. However, we may have cause to worry about a number of measures in the legislation when we consider them over the next few days. Most of us have had less than 48 hours to consider the Bill, yet we have done our best in trying circumstances.

Section 3(3) specifies a period of 30 days during which a person who purchases an animal may not sell or move that animal from his or her lands, save under permit.

Section 3(4) states:

Subsection (3) shall have effect only during such period and in respect of the whole of or such part or parts of the State as may be specified by the Minister by order, where he or she considers it reasonably necessary to avoid the outbreak or spread of the disease or diseases of a particular class or description.

I would appeal to the Minister to insert the words "and only in exceptional circumstances" after the word "necessary". People do not want the 30-day period to become the norm, but that is what happens when such measures are written into legislation.

Subsection (5) states:

The Minister or an officer of the Minister may issue a permit to a person or dealer, or a class of person or dealer permitting an animal to be sold or supplied within the period referred to in subsection (3).

As Deputy Connaughton, who probably has more expertise in this area than anybody else, has said, there are hundreds of legitimate dealers who help out, including people who bring calves up from the south and others who bring stores from the west to the midlands for fattening. They are all operating legitimately to earn a shilling in the proper way.

The Minister said in his introduction that a small minority has acted irresponsibly and illegally, and those are the people upon whom the legislation is focusing. Dealers will now be registered so the Department will know everything about them if they are given permits in advance. If the Minister does not do so, however, it will stall the movement of animals, irrespective of how quickly the Minister thinks permits can be issued. Many dairy farmers are earning good money in the Minister's own part of the country, thank God, unlike beef farmers in the midlands. People may bring suckler calves from the mart or farm on a Wednesday evening, and they want to deliver them as quickly as possible because of the problems that can arise when cows are calving. Will the permit regulations affect such deliveries? I know the Minister is attempting to deal with this matter but I am trying to point out, in a constructive rather than a confrontational manner, the necessity for ensuring that whatever measures are introduced are sensible and reasonable. Apart from the nature of some of the measures envisaged in the legislation, their practicality is also important.

In fairness, the Minister made it very clear and focused on the fact that he did not want to disrupt normal trading activities. The transport of suckler calves is a normal trading activity, however, so perhaps the Minister's officials have a view on that. There is a difficulty in perceiving a person applying for a permit for one animal, yet subsection (5) refers to "permitting an animal to be sold or supplied within the period" that is specified. Those are the problems that may arise.

The Minister will work out the permit regulations with the relevant organisations, but that is why I want the legislation to be subject to review because there will be teething problems and issues we have missed. Neither I nor my colleague, Deputy Dukes, will harangue the Minister over the coming months. We will reluctantly accept the 12 month period. If there are teething problems of this nature in primary legislation it can become rooted, or cast in stone and 12 months later there can be significant disruption of normal everyday trading activity between the various geographic areas of the country. In the circumstances, I am not pressing the amendment.

Mr. Dukes:

I agree with the point made by Deputy Penrose on the longer term implications. Whenever this Bill is reviewed, subsequent to its enactment, and bearing in mind that it is inserted into the Principal Act, the House should not be precluded, in such a review, from having regard to any other part of the Principal Act which is not affected by this Bill. I feel sure the Minister will agree that if, during the autumn session or some other time within the next year, it emerges that any particular provision of this Bill is causing a problem for cattle trading activities or disrupting the normal pattern, we should then have liberty to come back to the Minister on the matter, even in advance of a full review of this legislation.

Based on experience with other emergency legislation, I am concerned that measures which may seem reasonable, adequate and proper at the height of a crisis can sometimes prove to be rather inappropriate when the heat of battle has died down and normality has been restored. In retrospect, one might then wonder why such measures had ever been introduced in the first instance. I personally have often found it useful to consider how a given problem and the proposed response to it might appear on looking back, perhaps three years later. A concern which seems most important today could appear very inconsequential in three years time. Of course, the converse could also apply.

If the Minister can agree to an understanding such as I have outlined, I would be prepared, on that basis, to go along with a 12 month review of the arrangements now proposed. It would be very useful if we could agree, all other things being equal and there being no general election in the meantime, to make provision for discussing this matter again in March 2002. Of course, if there is a general election, matters will be much better anyhow, so that is not a worry. However, if we proceed on the basis of discussing this in March of next year, it would also be advisable, some time before Christmas, to have a review involving a forum of the people who are most involved in the situation, to look at the measures which are being implemented now and to consider their impact on the industry.

Earlier in the debate I illustrated a number of deficiencies, as I described them. I appreciate that this term may have caused the Minister some indigestion. I referred to several difficulties which have occurred, including those with agricultural contractors. It is clear that some people have not taken the disinfection arrangements seriously.

In preparation for a review of this legislation in March of next year, the relevant issues could usefully be examined, say in November or early December, in a forum with the farming organisations, the trade bodies, the agricultural contractors, the meat industry, and perhaps even some politicians. A similar forum which I ran on BSE recently proved to be a very worthwhile exercise. We need to get as rounded a view as possible of how the arrangements have worked out in practice so that our subsequent review of this legislation can be based on an informed judgment of what changes may be needed at that stage.

Mr. Connaughton:

It now appears that it is the Minister's intention that the review date will be 12 months hence. I expect that, over the next couple of months, public discussion will not actually concentrate on the role of the authorised officers, who will evidently be dealing with certain specific areas and individuals. Instead, there will be a much more fundamental discussion about the impact of this Bill on the lives of all farmers.

I wish to raise some questions with the Minister on section 3. I agree with Deputy Penrose that the inclusion of the words "exceptional circumstances" is most important. That will give a signal that the situation will not be treated lightly under any set of circumstances. With regard to the 30 day retention period—

An Leas-Cheann Comhairle:

That point would be more appropriate when we are discussing the section. We are now dealing specifically with amendment No. 3.

Mr. Connaughton:

I have no problem with that, but other Deputies have already referred to the point. I am happy to return to it later.

An Leas-Cheann Comhairle:

Once we dispose of amendment No. 3, we can go on to the section.

Amendment, by leave, withdrawn.

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

Mr. Connaughton:

Farmers will ask many questions about the 30 day retention period. As I understand it, a person who is defined as a dealer and who buys in cattle must hold them for 30 days. The section then goes on to provide for exceptions. I assume that the definitions in this Bill are compatible with those contained in the Bill dealing with traceability which was previously before this House. I will give four examples to illustrate the point which I wish to make. Will a calf dealer in County Galway who attends a mart in the south of the country on a Monday morning, purchases animals with his own money and transports them back to Mount Bellew be allowed to continue to operate? Under what circumstances might he be prevented from operating? Before that dealer travels to the south, will he be entitled to deal under a licence? Will such a licence allow him to travel south to purchase the cattle or will he be obliged to apply for a licence for every animal he buys? This is a technical and important matter because the dealer will not know how many calves will be available for purchase when he arrives at the mart. He will buy as many as possible, but he will not be sure of the number of customers he will have for them when he returns to Mount Bellew.

Let us consider another example. What will be the position of a part-time farmer who asks a dealer to buy his 20 cattle because he does not have time to go to the mart? Will the dealer be allowed to pay the mart manager for the cattle or will the farmer's cheque be used? There are subtle differences involved between these two examples. There are agents who call to farmers, buy cattle with their own money and transport them directly to a factory. In addition, there are factory agents who travel to farms, identify the cattle they wish to purchase and transport them directly to a factory. What sort of licence will these agents be obliged to hold?

What will be the position vis-à-vis a feeder in southern Italy who sends an order to Ireland for 1,000 or 2,000 special Limousin cattle, all 300 kilos in weight, for delivery within two weeks? How will the traders, agents and dealers responsible for supplying such cattle operate under licence? Surely they will not be obliged to obtain a licence or certificate for each individual animal. Many dealers buy animals for the export trade and agents attending dairy sales are often asked to buy cows for farmers. Will these individuals be allowed to continue to do so?

Will the Minister indicate who will be allowed to operate under licence and who will not be allowed to do so? I am referring to reputable dealers who have never had any trouble with the authorities. There is no need to mention unscrupulous people. I am referring to people of good reputation who make a living out of buying and selling cattle. Will the Minister indicate how the people to whom I refer will be allowed to operate from tomorrow morning?

Mr. Dukes:

I have no desire to distract the Minister from answering Deputy Connaughton's questions. However, I wish to ask a number of questions about some of the provisions in this section.

Will the Minister indicate what is meant by the reference to appointing a "class of persons" as authorised officers? It is proposed to issue authorised officers with warrants. I do not know whether I am banging my head against a stone wall because I have tried to make the following suggestion in respect of previous legislation but made no headway. Will the Minister indicate if he intends to include photographs of authorised officers on warrants? These people are going to be conferred with some extraordinary powers and they will be presenting themselves at farms and other premises and relying on their right of entry and right of search in order to do their job. Regardless of what we think of the activities of certain individuals, these people are entitled to be able to satisfy themselves that the person before them is who and what he or she claims to be.

I do not envisage a situation where, as in a gangster movie, an official will be obliged, like a member of the LAPD, to flash his or her identity card. However, a person who is confronted by an authorised officer of the Minister for Agriculture, Food and Rural Development, who has at their disposal the full majesty of the law, is entitled to be able to satisfy himself or herself that the officer is who the warrant indicates them to be. They could do so if a photograph was included on the warrant. If we can put photographs on ballot papers at election time, surely we have reached the stage where members of the public can check the bona fides of officers, acting on behalf of the State, who are responsible for implementing the provisions, as in this instance, of quite draconian legislation. People must be able to satisfy themselves that authorised officers are who they represent themselves to be.

Section 2(11) authorises officers to use reasonable force while section 2(12) provides that "An authorised officer when exercising any powers under this section may be accompanied by other persons" and may confiscate equipment. I am assuming that the Bill has been drafted with care. However, it must be noted that the "other persons" accompanying an authorised officer are not, themselves, authorised officers. I am sure it would have been overtly stated that they are authorised officers if that was the intention. Authorised officers will now be able to appear, as do agents of the sheriffs, and they will be able to bring people with them to help them carry out their work. Is that the intention? If it is, it is doubly important, in the interests of the rights of citizens, that authorised officers have a warrant which includes a photograph and an indication that he or she is entitled to use other persons to help carry out the necessary work.

I am not stating that this will arise in a great many cases. However, the Minister is aware that there are instances where authorised officers operating on the basis of legislation of this nature – I refer here to operations against people selling drugs for use on animals or those who use them – can get involved in situations which become quite fraught. These officers require support and that is why there are usually gardaí present. I would be concerned about authorised officers, with extensive and wide ranging powers, travelling around the county with groups of people, entering premises and enforcing the provisions of this section. I wish to be assured that a degree of accountability will attach and that this will not be done in a way that is unnecessarily confrontational.

Mr. J. Brady:

I welcome the Bill, the aim of which is to protect genuine dealers and the farming community. Like Deputy Connaughton, I am concerned about a number of issues. The first of these involves situations where people are exporting calves. In my county, dairy farmers usually transport their calves to the exporter's yard where they are loaded onto large containers. This avoids the necessity of having large container trucks trying to gain access to farms via narrow roads. Many dairy farmers in County Meath have contacted me since last night to voice their concerns about this matter.

Deputy Connaughton also referred to genuine dealers who travel to the south to buy beef breeds. On their return, they travel from farm to farm selling the cattle they have purchased. This form of trade has been going on for as long as I can remember and a similar trade exists in respect of store cattle. Those are some of the concerns but I am sure they will not inhibit the genuine dealer. It is the rogue dealers we all want to stop.

Mr. Penrose:

I am transfixed by the definition of "dealers". There is a definition problem with the section. Section 29A of the Principal Act states that a dealer is a person who purchases an animal or poultry and sells or supplies the animal or poultry to another person. In my view it should read "or sells" an animal or poultry to another person. It further states that the Minister may by order provide for the approval and registration of dealers and dealers' premises. If I purchase an animal for the purpose of reselling it and I keep it on my premises for that purpose, I do not become a dealer under this definition until after I have sold it to someone else within the 45 days of purchase. At that stage the animal has left my premises. Do I now have to apply for the approval and registration of myself and my premises even though this is a once off transaction and I will never be a dealer again? I can only satisfy the definition after the event, which is very unusual. If I enter into a transaction once, I am apparently a dealer forever and my premises are dealers' premises. That cannot be what the Minister intends. It would be more accurate to describe a dealer as someone who is in the business of acquiring and disposing of animals, otherwise than in the normal conduct of the trade of farming. The Revenue Commissioners have no difficulty identifying the trade of dealing as a trade separate from that of farming.

I want to highlight another problem, one which I am sure the Minister did not intend. Cats, dogs, guinea pigs, hamsters and rabbits are listed as falling within the definition of "animal" set out in Part I of the First Schedule of the 1966 Act.

Mr. Dukes:

Ferrets are in there too.

Mr. Penrose:

Does the Minister intend that all pet shop owners should now be classified as dealers for the purposes of the Act? Perhaps the Minister will examine that.

Deputy Connaughton raised a number of issues. The exceptional circumstances should be examined to reinforce the emergency nature of the legislation – that is in section 3(4). We must ensure that we are putting the best possible wording in the legislation until such time as we have an opportunity to review it in the 12 months from the passage of the Bill. While some of these matters might sound flippant, we can get bogged down in this area. There is no doubt that some body will exercise their right to test the legislation in the courts to see if it impugns various constitutional provisions or whatever, and that is their right, but the Minister should examine that, particularly the definition of "dealer" which I set out. It might sound farfetched but it should be examined.

Mr. Dukes:

I have high regard for Deputy Penrose and I know that as a socialist he would never want to be a dealer because after all, Sir, as you know, it was the dealing men from Crossmaglen who "put the whiskey in me tea". I would warn Deputy Penrose against buying any of the following animals in case he might become a dealer – agoutis, beavers, capybara, chinchillas, ferrets, fitches – I am skipping a few – porcupines and prairie dogs. Deputy Penrose should not buy one of those animals for one of his children, get tired of it and sell it within 45 days or he will be a dealer.

Mr. Penrose:

Deputy Dukes has made my point more eloquently than I did.

Mr. Walsh:

I thank the Deputies for their interventions which were most helpful. This is emergency legislation. It is tough legislation and under normal circumstances it would not be desirable to have tough legislation like this enacted in a couple of days. That is why there is a provision that it be reviewed after 12 months. I agreed with the Minister of State, Deputy Davern, going to the Seanad yesterday to have this done by consensus. I told him that if there were any reasonable amendments put forward he should accept them, and he did, and I told my officials that the interpretation should be as generous as possible.

Some good ideas have been put forward in relation to this legislation. Unlike Deputy Dukes I do not have a bound copy but I have the 1966 Act here and the entire Act should come up in the review, not just the sections inserted into it. The idea of a forum is a good one because we have operated by consensus for the past ten or 11 years.

I want to deal with a number of specific matters. The 30 days limit will only apply where there is disease or risk of a disease and a permit arrangement will come into effect for people who wish to trade under those circumstances. We talked about the permit that is currently in existence, which is simple and works quite well. It was introduced because if a garda stopped a truck, the person could produce the permit which would have information such as the number of cattle, sheep or whatever, where he got them and where they were going. The details will be discussed again with the social partners and with interested people before it is drawn up and it will cover the detailed and complicated situation Deputy Connaughton raised. This will ensure that the system will be flexible, that it will work and allow the industry to operate smoothly. If it does not, it will cause absolute disruption because in this kind of industry a great deal of flexibility is required. We do not have an integrated system like those in other countries so it will have to allow for that.

In relation to dealers, I will be making an order approving the registration of dealers and their premises under section 3(2)(b). We will be sensible in the making of that order registering dealers. Originally in this section we provided for 100 days but in the Seanad yesterday, after a great deal of debate and many suggestions, including 60 days, the Minister of State suggested 45 days and that was agreed as a reasonable length of time. We will take care in drafting these orders and in drawing up the permit so as to cause as little disruption as possible to the bona fide trade.

In relation to the review of the legislation, I accept the principle of a forum. That could be a useful mechanism which could be a type of prelude to the Oireachtas debate. However, I would not like the forum to be used by people who want to go back to the old order but I am sure any regressive elements can be dealt with. This would be a positive forum and, as Deputy Dukes said, we may look back and say we were half mad to introduce such measures. Just as income tax was introduced as a temporary measure several hundred years ago, these things have a habit of becoming permanent or semi-permanent.

Mr. Dukes:

The butter subsidy for the islands off north Cork was temporary for 15 years.

Mr. Walsh:

Deputy Connaughton asked about the national beef assurance. There was also a lime subsidy as well. That was a good one. We do not put out half enough lime. We could reduce the use of other fertilisers; if farmers paid to have their soil tested and put proper ingredients into it, it would enhance the environment. The national beef assurance bill is taken into account in this.

Agents in my own part of the country are an important feature of small farming, especially out in the peninsulas and in other areas. They collect cattle, calves and store cattle but only get a full load by calling on a number of farmers. These factory agents are different to dealers but they will be allowed to continue their business.

Sheep tagging will come into effect in weeks, two months at most. It was difficult to get the farming organisations and industry to agree to tagging. I stated that in any event it must be introduced by 1 March. This crisis made people more sensible and they agreed to its introduction.

The authorised officer, mentioned by a number of Deputies, will have extraordinary power under this legislation. The subsections outline their power and who will accompany them in some cases. Authorised officers have to abide by the general provisions of law and act in a reasonable way in good faith. They will be personally liable if they go beyond what is reasonable. They cannot abuse the powers in any way, as the Bill makes clear in section 2(13) where it says they must act in good faith and on reasonable grounds.

The principle that dealers should be subject to registration, regulation and transparency is wanted by many people. It is not desirable to return to the unregulated operation that pertained up to now. Many people realise what has been happening. I mentioned before sheep travelling from Carlisle, the route and the drop-offs, and the extraordinary difficulty in finding out where they came from and went to.

Deputy Dukes inquired what class of persons might be appointed. This will include gardaí and the Army. If there is a particular problem at a farm or depot and they want to move in, the authorised officer will call there, accompanied by gardaí or, at the Border, by customs officers. This is the class of person we have in mind.

The "other person" Deputy Dukes asked about refers, in the case of a difficult or truculent person, to the authorised officer being accompanied by a uniformed garda. The night before last I saw a programme on the BBC or UTV in which a television crew visited a person involved in smuggling north of the Border who assaulted the cameraman. Then the interviewer was visited at the TV station afterwards and warned to get out of the place or end up in hospital, if not the graveyard. Deputy Dukes referred to drugs seizures but this is also a dangerous job requiring a uniformed garda escort and that is what the Bill refers to.

Deputy Brady raised the situation in north Meath regarding the export of calves. This Bill will not interfere with legitimate business. We want to bring a degree of order and registration so as to have a better traceability system.

Deputy Penrose discussed definitions; they are always difficult. He lost me on the conjunctive and I will not go into that in any detail. The definition of a dealer relates to people buying and selling animals as a business. That is our legal advice. It means as a business, not someone buying a guinea pig for one of the family. A section of the Bill refers to sell and the Deputy asked what exactly sell meant. This is gone into in detail.

That covers most of the points raised.

Mr. Dukes:

A photograph on the warrant of appointment.

Mr. Walsh:

I agree fully with that. In my clinics what annoys me is to hear of people masquerading as representatives of a charity, for instance, to take advantage of elderly people especially. This is a serious matter. I support the principle of a photograph and will see how quickly that can be put into effect. It is bad enough having someone hounding you. If an authorised officer says they represent the Revenue or the Department, he or she ought to be able to produce photographic identity. I will instruct my officials to put that into effect.

Mr. Connaughton:

I do not want to introduce a sour note into the proceedings but there are two important questions the Minister must answer. What happens here today will be implemented because that is how our democracy works and it will be implemented from tomorrow. The Minister and his officials are here. The interpretation of what we do today is important to what happens on the ground.

I am not sure that much thought has gone into what legitimate dealers can and cannot do now. It has not been fully thought out. The registration of dealers, as the Minister said, is the important thing and I subscribe to that. I have no problem with it, like everyone else here. If we take it to its logical conclusion that the dealer is registered, in other words, it is 95% of his business – the Minister can see what I am getting at – he will then be able to go about his normal business much as he is now. What I am afraid of is that a dealer going to the calf market in Cork on a Monday morning will have to get a licence before he got there for what he was planning to buy. Somehow or another, the man's freedom would be curtailed regarding what he wanted to do. This is a technical point but it is important. He should be allowed to do his business because he is a registered dealer. We all accept that he has to have a list of ear tags of cattle he bought and where he was going with them, but he should not have to ring the DVO in advance to say that he plans to go to Clonakilty in the morning to buy calves. It is a central issue, and I am not yet satisfied the Minister, Deputy Walsh, will introduce what I seek. Livestock marts are the only source of competition in this industry. I assume the agents who go there to buy cattle will not face restrictions apart from those that currently exist. Perhaps the Minister will indicate to me how he proposes to address this. Who will tell a dealer that he can no longer operate? Will it be the local district livestock office?

Will there be an open and transparent appeals mechanism? The reason a person cannot trade should be made known, so that local prejudices of different kinds will not be a factor. Sometimes people may have developed a dislike of one another over the years. When people are stopped from trading, and I am sure some of them will deserve to be, will the mechanism I have mentioned be in place?

Mr. B. Smith:

Unfortunately, I could not attend earlier due to committee engagements. I endorse the remarks of Deputy Johnny Brady in relation to the sale of calves. I am concerned that the permit system may be a little cumbersome. The traditional calf trade is very important in a dairy area like counties Cavan and Monaghan, where the sale of suckler calves can be an important source of income in the early part of the year. I hope the system will be as flexible as possible, and that the outlets for a farmer hoping to sell such calves will not be limited by too much regulation.

An Leas-Cheann Comhairle:

Before the Minister responds, I point out that much of what has been under discussion is in section 3, even though Section 2 is now under discussion. I have been liberal with Members who wish to discuss matters of concern in relation to the Bill, and whose time is limited, but we should conclude our discussion of section 2 now.

Mr. Dukes:

Perhaps the Minister for Agriculture, Food and Rural Development might respond to the points that have been made before we conclude our discussion of section 2. There are two amendments to section 3 which are germane to what has been discussed.

An Leas-Cheann Comhairle:

If the Minister wants to respond, we can then dispose of section 2.

Mr. Walsh:

There will be as little disruption as possible to the legitimate business of cattle trading, and none at all if I have my way. I will have an opportunity to ensure that, when I make an order, as is my entitlement under section 3 which says "The Minister may by order provide for the approval and registration of dealers and dealers' premises". When I make such an order, it will be straightforward for an officer of the Department or a local district veterinary officer to go to a well known local dealer and register his premises. It will be registered for a minimum of a year, as it would not be feasible to renew registration every second week. To have the premises registered can be said to be 90% of the battle.

People who lease or rent out land, as well as rogue traders who move cattle carelessly, often annoy good farmers as it can result in the spread of disease. I will make orders under section 3 which will help to stamp out such activity. Ordinary dealers of the kind with which we are all familiar will not have any difficulty in being registered. Their registration will last for a reasonable length of time, 12 months or more, and they will not need to renew their registration when going to a given location.

Question put and agreed to.

SECTION 3.

Mr. Dukes:

I move amendment No. 4:

In page 7, between lines 17 and 18, to insert the following:

"(3) Where a dealer feels that any action taken under subsection (2)(b) is unfair or unnecessarily or unjustifiably interferes with his or her business, that dealer shall have access to the Agricultural Appeals Board to seek redress.”

This amendment is concerned with the registration and regulation of dealers. The Bill states that "the Minister may, by order, provide for the approval and registration of dealers and dealers' premises". The Minister has explained to us that he will do this by order and that when making such an order he will take account of the various issues that have been raised by Deputies Connaughton, Penrose and others. He said that such an order will be reasonable and designed to disrupt the normal flow of trade as little as possible, and to deal with rogue traders.

Making orders under the 1966 Act is dealt with in section 4. Appropriately enough for a diseases of animals Act, I find one of my pet hobby horses in this section, as the order is in what I call the passive form:

Every order made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next twenty-one days on which that House has sat after the order is laid before it, the order shall be annulled accordingly.

Without accusing the Minister of any bad faith, that means the Minister's order is laid before the Oireachtas, and unless the Government provides Government time to debate the order within the next 21 sitting days, the Houses do not get a chance to debate it.

The Leas-Cheann Comhairle knows from his experience in this House, on the back and front benches and in the chair, that Deputies can jump up and down, but there is no way they can debate an order of that kind unless the Government makes its time available. As far as I understand Standing Orders, one can even bring a Private Members' motion to ask the Government to bring the order before the House, but it remains subject to the approval of the Government.

There is another form of order which official advice is always against. This involves the Minister making the order, laying it before the Oireachtas, and it cannot come into effect until it has been voted through by both Houses. Every time I have raised this, Ministers have shown understanding by saying they might do it that way the next time. If Ministers are not being understanding, they say they cannot possibly clutter up the business of the House by having a series of unimportant orders coming in. I do not know how the Minister, Deputy Walsh, feels but if we are to review this legislation in a year's time, I would like to have a look at section 4 of the principal Act, and the way orders are made.

I do not know if there was anyone around in 1966, when the principal Act came into force, with the same hobby horses as I have. If I had been in the House at that time there might have been the possibility, which does not exist in that Act, of making orders by another procedure. I have not proposed such an amendment as I know I would be wasting my time. The Minister's advisers would say it is all very well to allow Deputy Dukes to have his say, but the House should not be faced with such a technical order, and we should not bother the Minister with it.

We are about to take a sensible and justified step to give the Minister powers over the livelihood of a certain number of people that he has not had before, and to give him powers that he can exercise in the public interest, in the interests of the farming community generally, and in the interests of animal health and the prevention of disease. That is important enough to be debated in the House. We will not now have a chance to do it, because once we pass this Bill, making the orders is subject to the procedure in section 4 of the principal Act. Unless the Minister volunteers to do so, we will not debate in this House the regulations that will apply to dealers. The Minister has an opportunity to make an historic first here. He could listen to what I say and appreciating what is in section 4 of the principal Act, guarantee that when he is making these orders he will require the Government Whip to make Government time available to debate them. If he were to do that, he would not hear another mealy-mouthed word from me for the rest of the debate on this entire Bill between now and 5.30 p.m. To be serious, this is important. We are introducing new regulations affecting the livelihood of a certain number of people and the way they deal with a large number of people, namely, farmers. This House should be able to debate that because of the importance of the context in which it is being done.

Mr. Penrose:

Are we dealing with section 3?

An Leas-Cheann Comhairle:

We are on the amendment.

Mr. Dukes:

I am not sure the Minister will be fussed about the amendment. However, if we are making regulations about people's lives, we should in fairness give them the opportunity to make a case if they find the regulations are overly invasive. We have an agricultural appeals board Bill to which the Minister referred earlier, which will be coming back to the House. What I propose would provide a simple way of bringing this in. However, if the Minister would prefer to make a separate provision in that Bill and undertakes to do it in that way, I would accept that.

Mr. Penrose:

I recognise the difficulty the Minister might have in referring something to a board that is not yet in existence because the Bill setting it up has not been passed in the Dáil. That is why I am pressing my amendment. Deputy Dukes's amendment seems a bit wider, but both have the same focus in so far as their purpose is to ensure that nobody will be glibly deprived of their livelihood, that nobody can take it upon themselves to refuse a permit to somebody who has been trading or dealing over many years. Everything must be done in a reasonable fashion, and when administrative decisions of that nature are made, reasons must be given.

The reason we want an appeals mechanism – Deputy Dukes made the point in relation to section 4 – is that most orders are pro forma. They just go through and are not subject to debate. It is a major lacuna in legislation of which all Governments have been guilty. They are eager to get the Act passed, and in implementing it make orders that are taken to be part and corpus of the principal Act. They can do what they want and bring in orders that are seen by officials to be the import of the Act. That is why every word has to be parsed. Every word means something. That is why if there is a decision to refuse to approve or register a dealer or a dealer's premises or to issue a permit, it must be a reasoned decision and subject to an independent appeals process.

I fought very hard – I probably bored the Minister to tears because it is something about which I feel very strongly – for an independent appeals process in the context of the application of the subsidy and premium regime, REPs and so on. I did that for the very good reason that the independence of the system is absolutely critical. An independent system has worked very well in terms of social welfare appeals. There is no use in going up the line from me to the Minister because we are in the same political system, and officials are in the administrative system.

I will give one example of where justice delayed is justice denied. In January 2000 I was involved in lodging an appeal in relation to a REPs matter for a farmer. I put together a very strong appeal case, and the reply I got here in early March 2001 was that it was still subject to evaluation. The reason, I detected, is that there was a clash between what was in one element of legislation and what was in another. I feel so strongly about it that I intend to advise the farmer to go the legal route. If one goes back to the Paperlink case – one of the Minister's advisers would know it very well – it dealt with the right to a livelihood, the right to earn a living and so on. If the Minister wants to trammel those rights, he must do it in a very circumscribed and clearly delineated way, and set out the reasons very clearly. That is why Deputy Dukes is correct. If orders of that nature are to be brought into being, the Minister must be very careful to lay them before the House so that we will get the opportunity to have an input into them and ensure they are subjected to the closest scrutiny. What is here is fairly fundamental and profound, and that is why we should have that opportunity.

Regard should be had to any provision in the general law regarding agricultural appeals that might be applicable under the new appeals Bill. Perhaps the Minister will designate that as part of that Bill. That would be fair, and I would accept that. Otherwise it will have to be included as a subsection in this Bill. I believe the Minister will accept these amendments. Deputy Dukes's points have been well made. The laying of orders should not be just an exercise in putting them on the Order Paper and that being the end of the matter. I was taken aback when I realised that laying orders before the House in that way was allowed.

Mr. Dukes:

I have occasionally succeeded in getting Ministers to change their minds and use the other form.

Mr. Penrose:

It is a fair achievement, if the Deputy has done that.

Mr. Dukes:

I have sometimes had the support of the Labour Party.

Mr. Penrose:

It is a good achievement. It should be a natural extension of primary legislation rather than just tagging it on once the primary legislation has been passed and allowing everything else to flow through unimpeded. It is an important point, and one that not alone the Minister but his fellow Ministers should take cognisance of.

Mr. Crawford:

I support the proposal to set up an appeals system. As Deputy Connaughton said, a person who has a hang-up about an individual for historic reasons might avail of the legislation to get at him. I came across an extraordinary case in a different Department where a person told me he had been waiting 22 years to get back at somebody. I would not like this to happen and some form of appeals system should be provided. The majority of departmental officials are extremely honest and only want to do their best. However, there are bad eggs in every basket.

We are trying to ensure that rogue dealers are pin-pointed and dealt with. However, we must also ensure that a person who ends up in the wrong camp, so to speak, has some right of appeal. As Deputy Dukes said, once an order is introduced we have no means of coming back to it. I urge the Minister to provide for an appeals system either by accepting our amendment or Deputy Penrose's amendment or by tabling his own amendment.

Mr. B. Smith:

I agree with the comments made by the Deputies opposite and hope the Minister can facilitate their proposal in regard to an appeals system by way of regulation or under the legislation. This will enable people who have a legitimate grievance or query to have some redress.

Mr. Walsh:

The proposals in these amendments are reasonable. In a democracy the least people are entitled to is a written explanation for a decision. I have no difficulty in accepting the principle of the amendments, but the appropriate place to deal with the setting up of an appeals system is under the agricultural appeals legislation. The legislation has been passed by the Seanad and I have requested the Whip's office to allocate time for the debate in this House. I hope we will be able to debate the legislation within a few weeks. The legislation deals mainly with headage, premia and other schemes operated by the Department. It also deals with the national beef assurance scheme which is about regis tration. A person who has a legitimate grievance about not being registered can make an appeal under the legislation.

I accepted a number of amendments during the debate in the Seanad. Initially the appeals office was almost identical to the social welfare appeals office. A number of Senators proposed that applications for positions in the office should be open to the entire Civil Service rather than just the Department. I accepted the amendment as it would give all civil servants an opportunity to apply for positions. This should also be the case in regard to many of the bodies set up under the aegis of Departments as it would give talented people an opportunity to work in other areas.

I understand the point Deputy Dukes was making. The advice I get on a regular basis is that the practice of bringing orders before the House is too cumbersome and time consuming. Orders are required fairly quickly and it would be much better to lay them in the Library. There is some merit in the Deputy's suggestion and I will give it consideration to see how best we can deal with the matter. He also said we should deal with the entire legislation in the review. I give a commitment that the spirit of the amendments in regard to setting up an appeals office will be considered. I will also examine the best way of dealing with the orders.

Amendment, by leave, withdrawn.

Amendment No. 5 not moved.

Section 3 agreed to.

SECTION 4.

Mr. Penrose:

I move amendment No. 6:

In page 7, line 34, to delete subsection (1).

Having examined the Supreme Court judgment in Doyle v. An Taoiseach, 1986 ILRM, it seems that section 4(1) is safe in that it confirms the Foot and Mouth Disease Order, 1956, which can be interpreted as having prospective effect only. The good news for the Minister is that I will not press my amendment. However, I will have something to say on section 5 as it does not tie in with the import of section 4.

Amendment, by leave, withdrawn.

Section 4 agreed to.

SECTION 5.

Mr. Penrose:

I move amendment No. 7:

In page 8, lines 4 and 5, to delete "as on and from the date upon which they purported to come into operation".

The Minister is getting detailed advice from his officials. They are eminent people in their own right and I respect them. However, I dispute their interpretation of the late John Kelly's book, which I know they resorted to in a vigorous way during the past few hours.

Article 15.5 of the Constitution is specific in providing that: "The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission." The Doyle v. An Taoiseach cattle levies case, 1986 ILRM, dealt with section 79 of the Finance Act which purported to confirm the validity of certain levies which had been made by statutory instrument the year before. There is a resonance in this in terms of what the Minister is trying to do. I am not challenging them for an ulterior motive; rather I want to ensure that the legislation will be immune from challenge. Of course, one cannot deprive people of the right to pursue a matter in court.

In that case the Supreme Court held that if the provisions of the section were intended to have retrospective effect they would, to that extent, be unconstitutional since the result would be ex-post facto to make non-payment of the levy an infringement of the law. Therefore, in order to save that section from unconstitutionality it had to be interpreted as only having prospective effect.

The wording in section 5 "as on and from the date upon which they purported to come into operation" will create problems. The section lists all the recent orders made by the Minister to deal with the current crisis. Last Tuesday week I asked what might have sounded like an innocent question. However, sometimes the innocent question is the loaded one, that is, what emergency measures the Minister intended to take to deal with the foot and mouth disease crisis. The wording "as on and from the date upon which they purported to come into operation" involves an implicit admission that the orders are invalid since the 1966 Act does not adequately extend cover to animals at risk of infection as opposed to animals suspected of being infected.

The section provides that these orders shall be confirmed as on and from the date upon which they purported to come into operation. In other words, we are being asked to validate these orders and give them retrospective effect. I note the officials disagree with that. We will agree to differ on this matter. Before throwing out the baby with the bath water I draw to the Minister's attention the criminal sanctions for breaches of those orders. If it was a civil sanction it would be a different matter. We are being asked to do precisely what Article 15.5 of the Constitution prohibits where it states:

The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission.

In simple layman's terms this law can become complex if one keeps at it. In the Schedule the Minister is amending the Bill under which the orders are purportedly made. That is prospective. In section 5 the orders are being validated from an earlier date than the amendments to the Principal Act come into force. That is retrospective. It does not make sense logically and constitutionally. I would be worried about the retrospective effect of legislation that has a penalty of a criminal nature attached. That is the reason I have asked the Minister to reconsider it.

Mr. Dukes:

As a simple economist I hesitate to get into this argument. I would be much more interested, although it will not happen now, to have the opportunity to debate a later section on sheep tagging and tagging generally than discussing the arcane mysteries of the law with Deputy Penrose. I have a simple mind. Section 4 of the Principal Act informs me that every order made shall be laid before each House of the Oireachtas as soon as may be after it is made. As far as I know that provision means that the orders come into effect on the day they are made, and remain in effect, unless motions are passed annulling them. The list of orders in section 5 all date from 21 February 2001 or after. None of them has any retrospective effect that I can see. I do not think the Minister will prosecute somebody for not having complied with the provisions of the Foot and Mouth Disease (Hay, Straw and Peat Moss Litter) Order, 2001 (S.I. No. 49 of 2001) because of something they failed to do some time between 1966 and 2001.

I hope the Minister has a response that clinches this argument so that we might be able to have a few minutes to debate the issue of tagging and the amendment the Minister accepted to the section in the Seanad yesterday which vastly improves the provision. If we were ever able to get that far I would like the Minister to discourse to the House on the reasons the Department of Agriculture, Food and Rural Development has for the past decade, if not more, found itself unable to be satisfied that any system of electronic tagging could work and has condemned us to the current systems of mechanical and plastic tagging which has given rise to the rows that delayed the tagging of sheep until now.

If time permitted I would ask the Minister if his plans for sheep tagging include tagging sheep that spend all their lives on the mountain. Is he prepared to accept the proposal from the mountain sheep producers that they would tag everything they sell off the farm if they could avoid having to round up their ewes up the mountains to tag them when in fact some will probably never come off the mountains until taken off as fallen animals? Many sheep spend their days on the mountains and never appear again because they die up there. It is a pity we cannot get that far and that the Minister cannot say he is about to settle in his mind on one of the many systems of electronic tagging that are available and that might put an end, once and for all, to all the arguments we have had here for many years about the difficulties of operating a tagging system with plastic things pushed through holes in animals' ears.

Mr. Walsh:

Deputy Penrose has dwelt on the matter in some detail. The clear and specific legal advice from the Attorney General's office and the Attorney General is that the Deputy's concerns are ill-founded. There is no constitutional difficulty about these orders. The Deputy will realise it was important to bring in those statutory instruments quickly in respect of banning the importation of susceptible animals. The Attorney General told me he has no difficulty with those statutory instruments. I understand the matter was dealt with extensively in the Seanad yesterday. This is a standard provision in the Bill. The advice from the Attorney General's office is that the confirmation of the orders is merely a precautionary measure.

Deputy Dukes raised the issue of tagging sheep. Tagging of sheep will be put into effect straight away. It should be complete in about two months. The system of tagging will be a straightforward one. It would be nice if it could be done electronically and have a bolus where there could be a complete tracking system but that system has not yet been perfected. All sheep will be tagged; those up the mountain and half-way up the mountain will be all tagged individually. It will not be a case of just tagging them when they go off the farm. There will be a treaceability system. We have a good one for the cattle population. There is a controlled system in place for cattle but sheep are the big problem. We will allow people to decide over a period if electronic tagging is perfected, because that is the way to go. One will a get a flock number which will be registered in the Central Registration Office. It will bring a great deal of order to the sheep population the same as to the cattle population.

Mr. Dukes:

When making provision for sheep tagging, will an order require to be made? If so, will it be the kind of order that will automatically come before the House so that we can discuss it?

Mr. O'Malley:

I am not happy with the Minister's explanation on section 5, particularly his statement that it is normal to confirm orders. It is not normal to confirm them unless there is some defect in them. Why is the phrase that they "are confirmed as on and from the date upon which they purported to come into operation" used? They either came into operation or they did not. The use of the phrase "purported to come into operation" suggests just that, that they purported to come in but did not come in. All these orders are recent and were made in the past week or two. Is the Attorney General of the view that they are defective and that something additional is necessary? What about the orders that will be made next week when there will not be a Bill to confirm them. Will they be invalid? The Minister will, no doubt, have to make orders next week.

Mr. Walsh:

The clear legal advice from the Attorney General to me was that these instruments are not defective. He merely put them into section 5 as a precautionary measure. Confirmation of the orders is merely a precautionary measure. There is no question of a defect.

Mr. O'Malley:

A precaution against what?

Mr. Dukes:

Against Progressive Democrats' Attorneys General who cannot make their minds up.

An Leas-Cheann Comhairle:

As it is now 5.30 p.m. I am required to put the following question in accordance with an order of the Dáil of this day: "That in respect of each of the sections undisposed of, the section is hereby agreed to in Committee; that the Schedule and Title are hereby agreed to in Committee; that the Bill is accordingly reported to the House without amendment; that the Fourth Stage is hereby completed; and the Bill is hereby passed."

Question put and agreed to.