Only two amendments have been sent in in writing to the Enforcement of Law (Occasional Powers) Bill as it now stands for the Report Stage. Others have been handed in since the Orders of the Day were printed. I take it it will not be necessary for us to go through the Bill Clause by Clause. Perhaps it would be better if we take the amendments in the order in which they stand as regards the various Clauses. The first amendment is Senator Moore's.
ENFORCEMENT OF LAW (OCCASIONAL POWERS) BILL.
I move the following amendment:—"Section 2, Sub-section 4, after the word ‘under-sheriff' to insert words, ‘subject to the sanction of the County Court Judge on appeal by the debtor.'"
The reason I propose that, is because it seemed to me that under this Clause the under-sheriff might employ a great number, a whole posse, of people unreasonably, and the debtor would have to pay. He would have no appeal. The under-sheriff might do this and the debtor would have to meet the expense, however unreasonable it was. I propose to leave a certain discretion to the debtor. If the debtor considers himself unjustly treated and that the expenses put against him are too high, he should be entitled to appeal to the County Court Judge to know whether the sum involved was reasonable or fair.
I have much pleasure in seconding the amendment. I think the object of it is perfectly clear. I am sure it will commend itself to the Seanad. This Clause, I would remind the Seanad, sets a new precedent in regard to civil claims, inasmuch as it institutes in relation to these claims the oldposse comitatus. This is a precedent which is quite unheard of in our legislation so far, and the more this Clause can be guarded the better. Senator Moore tries to guard it in one respect, and I think he deserves credit for endeavouring to do so. I support him.
I think this amendment is really not artistic enough to carry out Senator Moore's object. I think it should provide for an appeal. It is put in a curious way. "Subject to the sanction of the County Court Judge on appeal by the debtor," in other words, it rather suggests that in every case the debtor is to appeal. I would suggest it would be put this way: "Provided always that the debtor, if dissatisfied with the amount of expenses incurred, might appeal to the County Court Judge of the County in which the debtor resides, and the decision of the County Court Judge shall be final."
That will suit me admirably, and I am quite willing to accept it.
I do not see how this amendment is going to operate in practice, except it holds up the whole of the machinery which the Bill contemplates.
I do not think so. If I understand its object, it is after the proceedings are completed, and the Sheriff furnishes his bill to the debtor, that the debtor may say to him: "It was quite unnecessary for you to put me to such expense by employing such a large number of assistants."
That clears the matter. I understood he had to do it all before those people were employed.
No. That was why I considered the amendment was not artistic, and it will be necessary to alter it, if Senator Moore will pardon me for saying so. It is not easy for laymen to appreciate those nice legal points, but I want to assist as far as possible.
I am quite ready to accept your view.
Probably when the Bill goes back to the Dáil, if the members there accept the spirit of the amendment they will put it into a shape which according to them will coincide with the Bill and at the same time carry out their purpose. I would suggest this alteration: "Provided that the debtor, if dissatisfied with the amount of the expense incurred, may appeal to the County Court Judge, whose decision shall be final."
I beg to move:—"Section 3. To add at end of the Section the words "Provided that no Sheriff, Under-Sheriff, Bailiff, or any other person employed under Section 2 (1) of this Act, shall make any entry or seizure under this Act, except between the hours of sunrise and sunset."
I do not know that it is necessary for me to elaborate the point.
Perhaps I unintentionally misled you in regard to this, because I stated offhand that my recollection was, in the case of these ordinary seizures, they could only be effected between sunrise and sunset. I was wrong in that. That applies, I think, only to distress. The ordinary writ ofhabere can be executed by the Sheriff at any time except on Sundays. This amendment would limit the ordinary law.
That makes my case all the stronger, and it makes it easier at all events for the Seanad to agree with me. We know quite well the times we are living in. We know what is happening to people's houses throughout the country, and we are giving a very dangerous opportunity to people who are not Sheriff's officers, but who may represent themselves as Sheriff's officers, to break into houses, loot and do other abominable things, unless we safeguard, as far as we can, the liberty or the sacredness of the domicile. I think the Seanad will be doing a good thing if they make their views on this matter perfectly clear, however the ordinary law may be affected. Whatever the rights the Sheriff may have under the ordinary law, he has no right to break into anybody's house under this Act except between the hours of sunrise and sunset, so that there should be no mistake. It is quite conceivable somebody may come and try to break into a house in the dark, claiming to be a Sheriff's officer. The individual whose house is broken into, if he could resist would. It might be the Sheriff, and, if it were, then this individual would be liable to very serious penalties. I think it is much better to prevent the possibility of any such occurrence, and with that view I move the amendment.
I beg to second that amendment. It is only a temporary Bill to deal with the circumstances under which we are living now. These circumstances are such as Senator Sir Thomas Esmonde has just described, and they are, that at any moment people may come to your house, knock at the door and seek admission. I, for one, would not open my doors to anyone now at night; that is, when I can help it. The other night people came to my house and tried to get in. I did not know who they were, and when I asked them to tell me they would not answer. The result was I did not let them in. They may have been detectives for all I know, but when they would not answer and tell who they were I did not let them in. Later on a wholeposse of people came to the house. They were dressed as soldiers, but still I objected to let them in. When questioned, they said they were soldiers, but, as we had no means of knowing whether they were soldiers or not, we did not let them in. There was one man in the party dressed as a policeman. Someone struck a match and held it up to the policeman's head, apparently with the object of showing that he was a bona fide policeman. Still, we had no means of knowing he was a policeman. We do not know to this day whether they were soldiers or not; but that is the sort of thing that may happen, and I think this is no time to invest Sheriffs or anyone else with authority to break into houses at all hours of the night. It would be quite a different thing to give such power in peace times. This amendment only applies to the present circumstances, and therefore I have much pleasure in seconding it.
As far as I could gather from the speeches of Sir Thomas Esmonde and Colonel Moore the amendment was put forward with the plea of meeting the dangers of the present times. The Bill is also put forward by the Government to enable them to deal with the dangers of the times, and if the Seanad choses to rule that a sheriff cannot go, during the night hours, into a house they are going certainly against the opinion of the Government, which has laid it down that it is a necessary authority for the Sheriff to enable him to carry out the law. As far as one knows of the breaking into houses at night, I have not yet heard that those who do break in, stop to consider whether they go in as Sheriffs or, in fact, how they go in. They go in quite regardless of the circumstances, and then why should we put restrictions on Sheriffs which those who break into houses do not consider? I do not think it is at all wise to put such an emphatic restriction on the action of the Sheriff which the Government, by putting it into the Bill, have clearly declared they consider a necessary power for the Sheriff to enable him to deal with the situation at the present moment, and for the next few months. Therefore, we merely have a difference of opinion between the two Senators who have moved this amendment and the Government. The difference of opinion amounts to this: Is it, or is it not, a power which the Sheriff ought to have? The Government tell us they consider the power necessary, and that the Sheriff ought to have it. I am inclined to agree with that view, and I think the Seanad ought to consider the matter very carefully before they proceed, under these circumstances, to vote against what is practically a decision of the Government.
I beg to support the view expressed by Senator Jameson. The Seanad should remember that the entering into an open house for the purpose of making a seizure is not a breaking in.
I am in favour of the amendment. I could quite understand the objections that have been raised to the amendment if the question at issue concerned arrests or anything like that, but here we are dealing with the seizure of goods or other property. These are things that cannot go on the run. There is nothing in the world, in my opinion, to prevent the Sheriff making the necessary seizures between the times specified in the amendment. As the proposer and seconder of the amendment put it, we are living in very dangerous times, and I think it is not fair to give permission to the Sheriff—though I do not say the Sheriffs would use the power unduly if it were given—to break into a house at any hour of the day or night. We ought to safeguard the rights of the people, and not give any such power to the Sheriff. The people of the country are suffering enough at the present time without adding to their troubles, and I do not think any benefit would be gained by giving the Sheriffs the powers proposed. With all respect to the statement made by Senator Jameson, I hold that in virtue of our position here we are entitled to offer our criticisms of any measure that is put before us. That is the function of this Seanad.
That is what we are here for.
Certainly, and the only argument put forward by Senator Jameson is that the Government say they want this power. We are here to help the Government to carry out their arduous work to the best of our ability, but surely when we offer criticism of a Bill, and make suggestions that in our opinion would be helpful, we are not doing an injury to the Government. I believe it was in that spirit the amendment was put down, and personally I am in favour of it, because I think any seizure required by the Sheriff can be made during the hours mentioned in the amendment.
I do not attach particular importance to the amendment, but it is as well that we should understand clearly just what is and what is not involved. The Senator who spoke last was under a slight misapprehension. The existing law does not permit of seizures or distraints except between the hours of sunrise and sunset. It does permit of entry on a writ ofhabere of the High Court or a decree for possession of the County Court. That is the position as it stands. This amendment would restrict the existing law, the law as it stood before this Bill was introduced, and would say that a Sheriff could not obtain entry on a writ of habere except between the hours of sunrise and sunset. I doubt the wisdom of the amendment. It is occasionally the only way in which a Sheriff can obtain peaceful entry. If we had statistics I think we would find that the number of cases in which a Sheriff effected entry except between the hours of sunrise and sunset would be very few indeed. It is not a thing the Sheriff would do as a matter of routine, and in the ordinary way, but if you pass this amendment to say definitely that he must enter only between the hours of sunrise and sunset, no matter what the circumstances are, you debar him from entering otherwise than between these hours. There is not here a question of entering a man's house by night and ransacking it, making seizures. There is no question of making seizures. Distraint can only be carried out between the hours mentioned in the amendment. It is a question of obtaining entry and it might very well happen that the best time to obtain peaceable entry would be after sunset.
I do not know what he is to go into the house for at all if he is not going to seize. That seems to me rather an extraordinary statement. He is to get admittance to the house for no purpose at all according to what the Minister states. This is as far as I understand him. I may be mistaken. It seems to me that in these times Senator Jameson's statement that because the Government have made this proposal we should accept it, is the entire basis of argument from some Senators whenever anything is proposed. The Government put certain proposals before the Dáil. They draw them up as best they can; but then during discussion in the Dáil, or in any other place, amendments are proposed and properly considered and the Government sometimes change, if they think wise to change, and sometimes they do not. I do not see why we should be prevented from making any amendment. I quite agree with what the Government does in general in this as I think these are times when we do require strong measures. This is only a matter of a certain technicality which may or may not be approved. I am suggesting this as one little item which can by a change of words improve the Bill.
From my point of view this amendment is necessary in view of the fact that the existing law has been encroached upon to a very considerable extent by the present Bill and, consequently, it is necessary that some improvements should be made in the existing law with the object of protecting the individual citizen in his home. It is not the Sheriff or the Sheriff's bailiffs that we are so much afraid of as people who will represent themselves as these people. The Minister has admitted that in the natural course of things entry by night will very rarely be necessary and consequently the obstruction, or alleged obstruction, caused by the passing of this amendment will be of a very negligible character. Everybody will agree, particularly now as the matter has been raised and it is public knowledge that a Sheriff or his bailiffs can make an entry at any time or demand admission in pursuance of the provisions of this Bill, that a lot of people throughout the country may take advantage of the fact and demand admission to any house; because it must be remembered that admission can be demanded into the house of a person who is not a judgment debtor at all. That is one of the very serious aspects of the situation and one which could be relieved to a certain extent by the adoption of this amendment. I entirely concur with what has been said in regard to certain arguments that are advanced here from time to time and which have been adduced again in regard to this amendment. The best argument and the only argument that some Senators seem to have is that the Government say "this is the position and this is what should be done," and that consequently we have nothing to do except to adopt that. Personally, I should be very sorry for the prestige or the usefulness of this Seanad if they are to turn themselves merely into a sort of tailors' dummies to come here and act as a registering machine for whatever is done in the Dáil.
The only argument which appeals to me is that this has been the existing law and there have been no reasons advanced by any of the Senators in support of the amendment to change it. They have simply raised bogies that there is nothing in. None of us has ever heard of any abuses under the existing law, and we think that this amendment will not bring out any now.
My view about this business is that the existing law is bad. I think that is perfectly clear, and that it ought to be changed. This is not the time to change it, but this is an exceptional Bill, and we think that is all the more reason why what is bad in the existing law should be changed in this exceptional, and I am glad to think, transitory Bill. We are not desirous of impeding the Government in their administration in any way. Goodness knows they have difficulties enough, and we have already shown over and over again that we are anxious to help them in every way we can. But we as a Seanad have certain duties, I will not say rights, and what position would we stand in in the eyes of the country if when we have strong opinions about things of this sort we do not express them. I am not moving this amendment in any spirit of opposition to the Government. I am much obliged to the Minister for Home Affairs for his attendance here, but I will ask the Seanad to vote for the amendment. If the Government think well they can change it. If they examine the question they will find that instead of this being a hindrance to them it will be a help. It will do something, at all events, to remove misunderstandings and to obviate the dangers which are sure to arise.
- Barrington, William.
- Bennett, Thomas W.
- Butler, R.A.
- Desart, Dowager Countess of.
- Duffy, Michael.
- Esmonde, Sir Thomas Henry Grattan, Bart.
- Everard, Sir Nugent Talbot, Bart.
- Farren, Thomas.
- Goodbody, James P.
- Green, Mrs. Alice Stopford.
- Irwin, C.J.
- Kenny, P.W.
- McEvoy, Edward.
- MacLysaght, Edward.
- MacPartlin, Thomas.
- Mahon, Gen. Sir Bryan.
- Moore, Colonel Maurice.
- O'Farrell, John T.
- Poe, Colonel Sir Hutcheson, Bart.
- Wicklow, The Earl of.
- Yeats, W.B.
- Barniville, Henry L.
- Costello, Mrs. Eileen.
- Counihan, John C.
- Dowdall, J.C.
- Eyre, Edmund W.
- Fitzgerald, Martin.
- Gogarty, Dr. Oliver.
- Griffith, Sir John Purser.
- Guinness, Henry Seymour.
- Jackson, Arthur.
- Jameson, Andrew.
- Keane, Sir John, Bart.
- Love, J.C.
- MacKean, James.
- MacLoughlin, John.
- Moran, James.
- Nesbitt, George.
- O'Dea, Michael.
- O'Rourke Bernard.
- O'Sullivan, William, M.D.
- Parkinson, James J.
- Power, Mrs. Wyse.
I beg to move:—
"To delete the words ‘not exceeding in the whole the value of £10,' and to substitute the words ‘not exceeding in the whole the value of £15.'"
I was prompted to put down this amendment by the feeling that what was really a trivial matter might be lost sight of in the consideration of the graver and more material matters in the Bill before us. It strikes me that the claims of the judgment creditors have been very fully considered, and all their rights and aspirations, I might say, fully conceded, whereas small solatium given to the judgment debtor was glossed over very slightly. We were told by the Minister in charge of the Bill here that there were rival proposals even in the Dáil, and a compromise was agreed to. The effect of the rival proposal was, I take it, the common system of barter at fairs. "Will we give this poor fellow £5 or £15?" They cut it, and they gave him £10. This little sum was intended as an act of clemency, intended, I take it further, to be the sole provision of this unfortunate debtor for his future, because your machinery has been made as adequate and as full as it can be to secure all the just claims of the creditor, and the poor debtor has been cast aside with £10 to provide aid for the future. We must assume that the machinery of the law is sufficient to secure that. There is nothing else in the world to protect him but that miserable £10. But what will £10 secure for him? I take it it is meant this man and his family should have a bed whereon to lie. But, having the bed, he should have the machinery to carry on his trade. I submit that the sum of £10 is quite inadequate. I submit that the sum of £15 is equally inadequate, but as it was, in the wisdom of somebody in the Dáil, considered to be a sufficient sum to give this unfortunate debtor to protect him against the cold and hunger and to prevent him from going on the rates in the future, I submit that the sum of £15 should be substituted, and the sum of £10 deleted. I think in such a time as this, when we are beginning to lay the foundations of a State, so to speak, that clemency is a very valuable attribute, and I think that this sum of £15 ought to be substituted. It is a temporary measure, but we know that precedents are taken advantage of on future occasions, and I think the substitution of £15 will make for improvement in the Bill, and make the position of the debtor nearer to what it should be in a case of great duress.
I beg to second that.
We had this under discussion the last day, and I think it was understood that Mr. Blythe said the Government would give favourable consideration to the alternative figure of £15. It was pointed out clearly on the last occasion that the sum mentioned in the Bill would not be sufficient to allow a person to get a decent start in life, and we were taking into consideration the honest debtor, and that he should get a fair chance. The Minister undertook that the Government would reconsider the provision, and I should be glad to hear what the Minister has to say.
The Senator's recollection of this transaction is quite accurate. In our discussion the other day the Minister told us he would consider the question of raising the limit to £15. I think, therefore, his representative here need have no hesitation in accepting this amendment.
I think the amendment ought to be allowed to go through. The allowance specified, £10, is very moderate, and in fact the amount would not represent £5 pre-war value, and would not by any means purchase even bedding or a set of tools for a workingman. I think this is a very reasonable amendment indeed, and that it ought to be accepted without further discussion.
I would like to ask the Minister in charge for a clear definition. There is some doubt as to what is the meaning of the words exceeding "in the whole." Does that mean that if a debtor has no more than £15 worth of implements of his trade, bedding and wearing apparel, then he will be immune from seizure, or does it mean that if he has £30 worth that the bailiff or bailiff's man may at his discretion sell down to £15 or £10 the tools, bedding or anything else? The words "in the whole" would simply imply that it is only intended to apply to a man who would have in value wearing apparel and tools not exceeding £15 or £10, as the case may be. I want to know from the Minister in charge here if the man has £30 worth can the bailiff sell down to £15 and select at his will whether he will sell the tools, bedding or wearing apparel.
I understand that Mr. Blythe gave an undertaking here on the Committee Stage that this question of the amount would be considered. It has been considered, and the result of such consideration is that I have a slight preference for the lower sum. Like the previous amendment, it is not a matter of vital importance, but I have that slight preference for the lower sum, and I have it because I know that in practice it is not going to be a matter of getting down to the exact amount of value, but simply a matter of approximation, and that £15 left to stand there on the Bill as the amount would in practice mean £20 or £25, just as the £10 in practice will mean £15 or £20. Now, Senator Kenny's point about not exceeding in the whole the value of so much, I take it that simply means that when it arises that the total property left to the judgment debtor will be the amount stated in the Bill, whatever decision is come to ultimately on the matter. There has been talk of honest and dishonest debtors. Well, no Government and no agent of the Government possesses any talisman which will show him who is honest and who is a dishonest debtor. There are dishonest people who pay their debts, andvice versa, but it is simply a question as to who is the man who cannot pay, and the man who cannot pay his debt is the man who has nothing that he can sell to enable him to pay his debt.
Following that, may I ask what is the meaning of the words "in the whole"?
These words, Senator, are taken direct out of the original Act.
The original Act intended to protect a debtor who had no more than £5 worth in his place, and the intention was quite right, but "in the whole" there would mean now to enable the bailiff to sell down a man having £30 to £10 or £15. That is a different matter.
That was always the law. The words of the original Act from which this was taken are so plain that I think no Senator will fail to understand them. They are: "Whereas it is expedient to protect the tools and actual necessaries belonging to judgment debtors, be it enacted that under any judgment decree or order the wearing apparel, bedding, tools or imple- of his trade are to be exempt, provided that the value of such apparel, bedding, tools or implements do not exceed in the whole the value of £5." In other words, the maximum allowance in respect of these things as fixed by the existing Act is £5, irrespective of the amount and position of the debtor. Obviously, of course, it was intended to protect only the very poorest class of debtors.
I would like to ask, in that case, if the protection is not given fully under Section 15, where the County Court Judge may order a payment to be made in instalments in the case of poor people?
The Minister has just stated that he has a slight preference for the £10. Well, if he has only a slight preference he might possibly consider the matter. A good many Senators spoke in favour of the £15. If he has a strong objection I would not say any more, but when it is only a slight objection I think he should be generous.
- Barrington, William.
- Bennett, Thomas Westropp.
- Butler, Richard A.
- Costello, Mrs. Eileen.
- Counihan, John C.
- Desart, Ellen Odette, Dowager Countess of.
- Duffy, Michael.
- Esmond, Sir Thomas Henry Grattan, Bart.
- Everard, Sir Nugent Talbot, Bart.
- Farren, Thomas.
- Gogarty, Oliver St. John, M.D.
- Goodbody, James Perry.
- Griffith, Sir John Purser, M.A.I., M.Inst. C.E.
- Guinness, Henry Seymour.
- Irwin, Cornelius Joseph.
- Jackson, Arthur.
- Jameson, Rt. Hon. Andrew, D.L.
- Kenny, Patrick William.
- Love, Joseph Clayton.
- MacEvoy, Edward.
- MacLysaght, Edward.
- MacPartlin, Thomas.
- Mahon, General The Rt. Hon. Sir Bryan, K.C.B., K.C.V.O., D.S.O.
- Moore, Colonel Maurice, C.B.
- O'Dea, Michael.
- O'Farrell, John Thomas.
- Wicklow, Earl of, D.L.
- Yeats, William Butler.
- Barniville, Henry L., M.B., B.S.
- Evre, Edmund W.
- Fitzgerald, Martin.
- Keane, Sir John, Bart.
- MacKean, James.
- MacLoughlin, John.
- Moran, James.
- O'Rourke, Bernard.
- O'Sullivan, William, M.D.
- Parkinson, James J.
- Poe, Col. Sir Wm. Hutchinson, Bart., K.C.B.
- Power, Mrs. Jane Wyse.
I move in Section 6, Sub-section (1), to substitute the figure "48" in lieu of the figure "24."
We discussed this matter previously during the last debate on the question, and it was put aside for discussion later on. The reason I propose this amendment is that under Section 4 the under-sheriff is bound to give the debtor a list of the articles that have been seized within 48 hours. Well, under Section 6 he is entitled to sell them within 24 hours, so that it is a very small consolation for the man whose property is being sold at the end of 24 hours to be given at the end of 48 hours a list of the things that have been sold. It seems to me very clear that if this Section 4 is of any use whatsoever the list should be given to him before the articles are actually sold. I moved formally to reduce the "48" to "24," but it was left at 48, and now I propose that in Section 6 "24" should be changed to "48" in order that the two times should coincide, that the man should get, before his property is sold, a list of the articles to be sold. It seems to me to be a matter of commonsense.
I beg to second the amendment. I am not quite clear as to what my friend wants, but I know that Section 4 is a most dangerous provision. The sub-sheriff or his officer has to give you a list of things that are seized upon, and he has to do this within 48 hours. If this protection is to be of any use whatever this list should be made out upon the spot at the time, or before, and should be approved by the person whose goods are seized. Clause 4 having practically been agreed to, I do not know that my friend would do much good by his proposal, but in the hope that he may I beg to second it.
I cannot reconcile the attitude of the proposer of this amendment with his desire to maintain the principles of this Bill. I take it this is an emergency measure, where speed of action is essential to the effective carrying out of the intentions of the Sheriff, and that if they give 48 hours notice before action can be taken to sell, there is time for evilly disposed people to collect, and perhaps materially embarrass the purpose for which the Bill is intended. As regards the comparison between Sections 4 and 6, I do not see how it can be sustained on the plain reading of these two sections. The inventory has to be made within 24 hours. The maximum period is 48 hours, according to the section, but if the goods are sold before 48 hours the inventory can be made within 24 hours, in which case it is the maximum period. But it does not mean that action in other cases cannot be taken within the shorter period. Therefore the amendment should be rejected, because it impairs the essential principle that this Bill, which we have accepted in general terms, is intended to carry out.
The proposed amendment does not indicate how to attain the object which the mover professes to have in view. He said that it was desirable that before any sale takes place the owner of the goods should have the itemised inventory. The amendment that has been moved only secures that simultaneously with the sale he would receive the itemised inventory, and his position would not be substantially improved thereby. Within 48 hours of the seizure Section 4 provides that he must have received from the under-sheriff an itemised inventory of the chattels seized. It is proposed that Section 6 shall read: "That the under-sheriff shall have power to sell such goods, animals, or other chattels at any time after the expiration of a period of 48 hours." It is not desirable to bind the under-sheriff to keep seized chattels or live stock on his hands longer than is absolutely necessary. A seizure might take place in the country on a Wednesday afternoon. There might be a market in Dublin on the following day, at which it would be desirable to sell the live stock, if it be live stock that is seized. If you bind the under-sheriff to keep seized property on his hands for more than 24 hours, and keep them for, say, 48 hours, then you add to the difficulties and embarrassments of the situation. This Bill was brought in to obviate certain difficulties and embarrassments.
If I had had an opportunity I should have preferred reducing the 48 hours to 24 hours. For one reason or another I did not get that opportunity. In my opinion what the Minister has stated just now is not quite accurate. According to Clause 4 there must be a list supplied before 48 hours, and, in fact, as soon as possible. The utmost limit given is 48 hours. That limit was pleaded for because the under-sheriff might be in a hurry, and a proper list might not be made out. I think the 24 hours is unreasonable.
Amendment put and negatived.
On a point or order, has any message been received from the Ministry in regard to suggested amendments to Clause 6 that were promised by the Minister for Local Government on the occasion of his attendance here?
In that connection I have received from the Minister for Local Government a Memorandum setting out certain undertakings which he thought it advisable to give here on the Committee Stage. The Memorandum is as follows:—
"In the Committee Stage of the Enforcement of Law (Occasional Powers) Bill I undertook to bring to your notice the following suggested amendments for consideration:—
"Clause 2, Section 5. To alter the Section so as to include writs of attachment and other writs as well as writs ofhabere and of fieri facias.
"Clause 5. To alter the value of goods exempt from seizure from £10 to £15.
"Clause 6. To add after the words ‘to sell' the words ‘in market overt' or ‘by public auction,' or other words which would make it clear that the goods would not be disposed of by private sale."
I have amendments here more or less in compliance with the undertakings which the Minister for Local Government gave on my behalf. There is an amendment to Section 6, Sub-section 1, and it is to insert after the word "sell" the words "by public auction." There is another amendment in Sub-section 1 to delete the words "to publish any advertisement or public announcement of a sale of any such goods, animals or other chattels." The Sub-section would then read:—
"It shall be lawful for any Under-Sheriff who shall after the passing of this Act take any goods, animals or other chattels in execution under a writ offieri facias or under a decree of a Civil Bill Court to sell by public auction such goods, animals or other chattels at any time after the expiration of a period of twenty-four hours after he shall have taken the same in execution, but so that he shall not allow any unreasonable delay to occur; and it shall not be necessary for the Under-Sheriff to publish or announce that any such sale is a sale by an Under-Sheriff or is a sale of goods, animals or chattels taken in execution.”
I think, Senator O'Farrell, that answers your question.
That meets the position my amendment was intended to meet, and I beg formally to move its adoption.
Would it not be better to leave that for the Dáil?
I think it might better come in here on this stage.
Amendment: "To insert after the words ‘to sell,' the words ‘by public auction,'" put and agreed to.
There is a further amendment to the same Section, and it is to omit the words "to publish any advertisement or public announcement of any sale of any such goods, animals or other chattels."
The next amendment is in the name of Colonel Moore. It is to Section 7, Sub-section (1), and it reads:—
"After the word ‘sell' to add the words ‘within reasonable limits of expense as regards the cost of such removal.'"
The reason I call attention to this fact is that the Sub-Sheriff, who will be a new Sub-Sheriff and not the old experienced Sub-Sheriff, may go into a house and take articles of furniture, or a small quantity of stock, and send them over to Scotland to be sold. The value of the articles taken might be quite out of relation to the cost of transport. My object is that if the Sub-Sheriff does take those articles and transports them at perhaps such a cost that there may be no result, he should be put under a penalty, if action is taken against him.
So that we may discuss the point, I beg formally to second the amendment.
I submit, first of all, this is an attempt to try and make people sensible by Act of Parliament, and I submit, further, it will be a failure. You have got to remember, as the Act contemplates, that the Sheriff will be a man of responsibility who will act intelligently, but, even if he does not act intelligently, I suggest to the Seanad that the only effect of this amendment will be to open the door to a most vexatious kind of litigation. How will a judge or jury—I do not know which it will be—be satisfied whether in a given set of circumstances, in which the Sheriff himself alone has discretion and knowledge, the Sheriff has acted reasonably or not. I suggest that the words themselves fail, from the legal point of view, from their vagueness, and that in practice they would not effect any other purpose but to encourage some litigious persons.
Senator Sir John Keane has expressed my view on this particular amendment better than I could myself.
Amendment put and negatived.
I beg to move the following amendment to Section 10. After the word "in" add "provided always that in accordance with the letter and spirit of Article 7 of the Constitution no inhabited dwelling of any person other than the judgment debtor shall be forcibly entered by any sheriff or other officer appointed under this Act except in so far as the same may be allowed by the existing law."
I think, in view of the wording of the Constitution, this amendment is necessary. In fact, I have adopted the wording of the Constitution, that a man's house is, to a certain extent, sacred. I am excluding from this amendment the house of the judgment debtor. I admit that the house of the debtor himself must be entered, but I am only dealing in this particular amendment with the house that is next door to his, or somewhere else, because in the law, as it stands, the sheriff may break into any house he chooses to go into, whether it is the debtor's house or any other house. But if he does not find any property belonging to the debtor on the premises of other parties, then he becomes liable to an action, whereas if he does not find any on the debtor's lands he is not liable. If he goes into a strange house, or into the house of some other party, and by chance finds some of the debtor's property, he is entitled to seize and sell it, but if he goes into someone else's house and finds nothing there, then he has to stand the chance of a law suit in that case. In this amendment I am not trying to alter the whole of the clause; I am not making any objection to the Sheriff going into any field he likes, whether the debtor's or anyone else's, nor am I objecting to his going into various premises and out-offices of people who are not debtors at all. I am only limiting it absolutely to the case of the dwelling house of the non-debtor, the man with whom he has nothing to do. If the sheriff breaks into the house of a person he has nothing to do with, and finds nothing there, then he must take the consequences of the law. The amendment is very limited, but in drafting it I have followed the wording of the Constitution. The Constitution says practically that a man's house is his castle. In this case I am not trying to maintain that a debtor's house is his castle, but that the house of a person who is not a debtor at all is his castle, and that it ought not to be broken into merely for the purpose of looking for somebody else's property. In these times especially breaking into a house is a very serious matter, and it ought to be guarded, I think, in every possible way.
I beg to second the amendment, because I think it is sound. It also saves Deputy Sir Thomas Esmonde from doing so. Apart from that, I think its wording might be improved somewhat.
The law as it stands contains an anomaly in a sense, because it provides that while a judgment debtor's house is his castle, and cannot be broken into, entry must be obtained in the orthodox, conventional way. The house of a third party is not his castle, if goods of a judgment debtor are, in fact, found therein. In other words, the under-sheriff may take the risk of breaking in, and the question of justification for that depends on whether he finds there goods the property of the judgment debtor. That is the existing law, I think, and there is just that anomaly, that, while he cannot obtain entry by violence into the house of the judgment debtor, he can obtain entry into the house of the third party, and he will be justified and immune from action if he finds there goods belonging to the judgment debtor. Now, that is the law as it stands. The proposed modification contained in this Bill is that the judgment debtor's house should be no longer his castle to the extent that entry may not be obtained otherwise than by knocking at the hall door; that the under-sheriff shall be entitled to break and enter the house of the judgment debtor, and also the house of the third party, provided, either that he finds there goods belonging to the judgment debtor, or, a second alternative, is able to show reasonable grounds for the belief he had that there were goods of the judgment debtor there. It simply adds one more proviso to the existing law, that he can break and enter, and will be justified if he finds there goods belonging to the judgment debtor. We propose to say now that he can break and enter, and will be justified: (a) if he finds there goods the property of the judgment debtor; or, (b) if he can show reasonable grounds for a belief that there were goods belonging to the judgment debtor there. That is the proposal. Senator Moore proposes an amendment to the Bill which throws us back on the existing law, and says that while the under-sheriff may take his risk, the only justification would be if he found in the house of the third party goods the property of the judgment debtor. In practice that would mean that an under-sheriff would never take any such risk. The words “break into” in connection with the house, imply really more violence than is in fact the case. It is not proposed that the under-sheriff should obtain entry by means of a land mine. It is a technical term, because any mode of entry to a house, except by the conventional process of knocking at the door and being admitted, is called breaking and entering. Senators ought not to allow their minds to be unduly swayed by the word used.
I am very sorry the Minister could not give a more sympathetic reception to the idea contained in this amendment. Clause 10, no doubt, is an extremely dangerous Clause and I think that really the proper amendment would be to omit all the words after the word "provided" in line 27, because just look at the licence you are giving to the Sheriff's Officer. It is not as if this Act were going to be administered by the old Sheriff's officers, who knew the neighbourhood and all the people and probably as much about their secrets as they did themselves. You are going to appoint now all sorts and conditions of men. You are going to use theposse comitatus for carrying out this particular Act and you may have all kinds of people employed as deputy Sheriffs. It is quite conceivable that some of these people may not be very squeamish as to what course they adopt or as to what information they act upon. I think it is extremely dangerous to give to anybody, even one of the old Sheriffs, the opportunity of breaking into a man's house on the plea that he has reasonable suspicion that there are goods in that house belonging to somebody against whom somebody else has obtained a decree. Reasonable suspicion in this country opens a very wide vista. It might be conceivable that somebody's enemy might lodge information with the Sheriff against him—false information —and on the strength of that proceeding his house would be broken into on the plea that he was harbouring goods belonging to somebody else. I know that these times are very difficult and I know that the position of the Government is a very difficult one, but, after all, we are doing such amazing things in this Act, such extraordinary things, that I am quite certain if the Seanad understood what they are doing by part of this Act they would not pass it at all. It is a most shocking Act in one sense according to our old-fashioned ideas as to constitutional liberty. I know the Act is only for six months, but all the same I do not like it. I think something ought to be done in this respect and I ask the Government, not in any hostile sense, to consider this point if there is to be any further stage of this Bill in the Dáil. Otherwise I think the Government will be wise in allowing us to knock out the whole of Clause 10 from the word “provided” in line 27. I think the powers you give these Sheriffs and deputy Sheriffs are much too dangerous.
On a point of order, does that proviso harmonise with those that follow? If this is passed, will it not automatically entail an amendment of the printed provisions that follow in that same section?
This amendment of Senator Moore's only comes in at the end of the section. It comes in at the end of the last proviso.
Even then I am not quite clear as to this, because this amendment prevents the Sheriff from entering the house of a third party under any circumstances by force and then the next proviso goes on to provide that he can enter by force, but only on reasonable grounds.
No; it does not ask to prevent the entry into a third person's house under all circumstances, but only to limit it to the rights at present existing by law. Under the law as it at present stands the Sheriff can enter a third party's house taking his risk if no goods of the debtor are found there, and the Senator does not ask to interfere with that state of the law. I do not think there would be anything inconsistent to the rest if this amendment were adopted. I am only on the point of sequence; I say nothing about the merits of the amendment at all.
Amendment put and negatived.
I should like to say, if Senator Barrington will allow me, that I think his amendment to this section is quite unnecessary, because under the existing law persons who are placed in the position of those to whom he refers are entitled to do what is called interplea, that is to say, they inform the Sheriff by notice that the goods he has seized claiming them to be the debtor's are not the debtor's but belong to them. I do not think that Senator Barrington proposes that the Sheriff should have a discussion on the spot with the claimants. I think he only means to give the claimants a legal remedy. They have that at present.
I do not propose to move the suggested amendment.
There are certain verbal amendments that the Minister for Home Affairs is anxious to introduce into this Bill. Perhaps this will be the time for him to mention them.
I am sorry that I was not in a position to give notice of these amendments. They are quite minor amendments, and follow from the undertakings which the Minister for Local Government gave on my behalf on the Committee Stage of this Bill. The first is in Sub-section 1, line 3, to insert after the word "habere” the words “or other writ,” and in the same sub-section, line 10, to insert after the word “habere” the words “or other writ,” and in line 11 after the word “decree” the words “or order.” If these could be treated as one amendment I would be content.
This is really a purely formal matter, and I take it that the Seanad gives leave for the insertion of these amendments.
The next amendment is in Sub-section 2, to insert after the word "decrees" the words "or Orders," and in the same sub-section to insert after the word "decree" the words "or Order." These are merely consequential on the undertaking that the Minister for Local Government gave. In Sub-section 3, of Section 2, to insert after the word "decrees" the words "or Orders," and in Sub-section 4, line 26, to insert after the word "decree" the words "or Order." In Sub-section 5, section 2, line 30, to insert after the word "habere” the words “or other writ,” and in line 33 to insert after the word “decree” the words “or Order.”
That concludes the amendments.