[SEANAD IN COMMITTEE.] - RAILWAYS BILL, 1924.—THIRD STAGE.
I might mention that amendments are still coming in for the Committee Stage of the Railways Bill, and it has not been possible to have them printed. Accordingly, I shall read out each section of the Bill, and any Senator who has given notice of an amendment, or who wishes to move an amendment, will then have an opportunity of doing so. I hope Senators will be alive to that fact, and that if they wish to move amendments they will take the advantage of doing so when the section is called in its order.
Sections 1, 2 and 3 ordered to stand part of the Bill.
An amalgamation scheme under this Act—
(a) shall provide for the incorporation of the amalgamated company under an appropriate name with power to hold land for the purposes of the company, and make such provisions as appear necessary or expedient with regard to the share and loan capital of the amalgamated company and the vesting of the property, rights, powers, duties and liabilities, whether statutory or otherwise, of the amalgamating companies; and
(b) shall provide generally as to the terms and conditions of amalgamation and for the winding-up of the amalgamating companies, including the allocation to holders of securities of the amalgamating companies, in substitution therefor and in satisfaction of all claims arising thereunder, of such securities of the amalgamated company, and of such amounts, as may be specified in the scheme; and
(c) shall incorporate Part V. of the Railways Clauses Act, 1863, subject to the provisions of this Act; and may incorporate any of the provisions of the Companies Clauses Consolidation Act 1845, and the Acts amending that Act, subject to the modification that any committees appointed under Section 95 of the Companies Clauses Consolidation Act 1845, may comprise persons who, though not directors of the company, are proprietors and possess such other qualifications (if any) as may be provided by the scheme; and
(d) shall give effect to the provisions contained in the Second Schedule to this Act with respect to the direction of the amalgamated company, and may, with the consent of the proprietors, provide for the payment of compensation out of the assets of an amalgamating company to any director of such company who suffers loss by abolition of office; and
(e) shall contain such provisions with respect to the management of any superannuation, pension, provident, widows' and orphans' and other benefit fund or funds established by any amalgamating company as may be necessary in consequence of amalgamation, so, however, as to preserve in all other respects the management of such funds unaltered until other provision is made by the Oireachtas; and
(f) shall incorporate the provisions contained in the Third Schedule to this Act with respect to existing officers and servants; and
(g) may make such incidental and supplemental provisions as appear necessary or expedient in order to give full effect to the provisions of the scheme and the purposes of this Act.
I beg to move:—
Section 4, immediately after the word "office" in line 46, to insert the words:
"Provided that any director of an amalgamating company who may be appointed to be a standing member of the railway tribunal or who shall resign office in consequence of being appointed a standing member of the railway tribunal shall upon such appointment be deemed to have suffered a loss as if his office as such director had been abolished and shall be entitled to be paid compensation out of the assets of the amalgamating company in respect of such loss of office."
The reason for this amendment is that I feel a person who may be in the employment of the railway companies at the present time, either as director or as an official, may suffer a loss in the event of being appointed a member of the railway tribunal. One member of the railway tribunal shall be a person of experience in railway business, and if a director or official were appointed his right under Section 4 would be lost, as the railway tribunal must be established before amalgamation. If an offer of an appointment on the railway tribunal is made the person might be tempted to refuse it because he would run the risk of losing his right. I am quite sure the Minister will see his way to accept the amendment.
The principle at the back of this amendment was very favourably considered, but in some way an amendment dealing with it, unknown to me, disappeared. It did not exactly run on these lines. I would point out to the Senator that if the amendment, in its present form, is accepted, it would mean that a director of an amalgamating company, who might be appointed a standing member of the railway tribunal, would come in for compensation, and also receive a salary or payment as a standing member of the tribunal. I am not clear that the Senator would think that desirable. I could accept the amendment if a proviso was inserted stating that on appointment a director of an amalgamating company would be entitled to compensation, but, that, in fixing the amount of compensation, the scheme would take into consideration the remuneration received by him as a standing member of the tribunal. Some proviso of that sort would be necessary in order to do away with the possibility, and the probability, under this amendment of a standing member of the tribunal receiving compensation and also a salary.
It will be observed that the compensation which is claimed by directors comes out of the assets of the company and not out of the pocket of the State. The last few lines of the amendment show that compensation is to be paid out of the assets of the amalgamated companies in respect of the loss of office, so that there is no charge on the State in regard to the payment of compensation.
I understand that the Minister points out, unless this is safeguarded by the proviso, it opens the possibility of there being double compensation. The Minister, I understand, is rather favourable to the principle of the amendment, but would like to have time to consider whether he should not be protected by some such proviso as he mentioned. Possibly the amendment could stand over.
I am quite satisfied. I should not wish, by any means, that double compensation be paid.
Perhaps I might suggest a definite amendment which would be absolutely acceptable. If, for instance, we took the first four lines of the Senator's amendment down to "member of the railway tribunal shall"... "shall be entitled to compensation as if his office as such director had been abolished, but in fixing the amount of such compensation the scheme shall take into account the remuneration he is receiving as a standing member of the Railway Tribunal." If I got an intimation that the Senator would be favourably disposed towards that I would have it brought up at a later stage.
I will accept that amendment.
The same would apply to the next amendment.
The two amendments can stand over for the Report Stage for the purpose of being amended in the sense indicated by the Minister.
Amendment, by leave, withdrawn.
Question: "That Section 4 stand part of the Bill"—put and agreed to.
Sections 5, 6 and 7 ordered to stand part of the Bill.
For the purpose of determining the terms and conditions of amalgamation between the amalgamating companies or of the transfer of the undertaking of any absorbed company, the railway tribunal shall take into consideration all the circumstances of the case, and in particular the value on a net revenue earning basis of each of the amalgamating and absorbed companies as a separate company, and its value as a component part of the amalgamated company: so, however, that regard shall not be had to economies or accretions of traffic or other circumstances tending to enhance its value as such component part attributable solely to the provisions of this Act relating to amalgamation and absorption:
Provided that, in the case of the line of one company being worked by another company under an arrangement whereby a percentage of the gross receipts of the line so worked is payable to the owning company, the railway tribunal in determining the terms and conditions of transfer shall not take into account any higher charging powers than those authorised in respect of the line under the statutory provisions in force in the year 1913.
I beg to move:—
Section 8, immediately after the word "tribunal" in line 17 to insert the words "before approving or settling any amalgamation, absorption or preliminary scheme."
As it stands the Bill provides that preliminary amalgamation and absorption schemes may be submitted for approval to the Minister, prior to the 31st July, 1924, and at any subsequent period the tribunal must approve, not may approve, of the schemes, if the procedure preliminary to their submission has been complied with. Section 8 sets out the terms of amalgamation and absorption, but this only applies to schemes which may be settled by the tribunal in default of agreement. In my opinion it should also apply to preliminary schemes agreed to between the companies themselves. Otherwise the method of capitalisation agreed upon in any of these agreed schemes will be solely the work of the company and the tribunal will have no voice whatever, except in the procedure to be adopted. It will be seen, according to Section 10, that these preliminary schemes have merely to observe the procedure and that otherwise the provisions outlined for schemes enforced by the tribunal under Section 8 shall not apply to them at all. The effect of the amendment would be that, even in agreed preliminary schemes submitted by the railway company, the tribunal shall before approving or settling, examine, and shall have some voice in the determination as to capitalisation and so forth. The reply to a similar amendment in the Dáil was that it was no matter of concern of the public what terms of capitalisation, interest and so forth were agreed to between the various companies, as they agreed upon them themselves.
If the success of the amalgamated company could be assured—and I think its success ought to be desired by the companies, by the employees, and by the public generally—if the principle is right and if the working of the Bill is to be given a fair chance, the capitalisation should be decided on right lines. If the companies can present preliminary schemes, and if they are to be dealt with as set out in section 10, without any control at all by the tribunal, the result may be, that devices may be resorted to, to enable the present railway stock and shareholders to dispose of their holdings on favourable terms, and get out of the railway business, irrespective of results to unsuspecting purchasers of the stock. It is obvious that this scheme may, either by undue inflation of the capital of the amalgamated company, or otherwise, seriously prejudice the industrial and agricultural communities as well as railway passengers. If, for instance, the capitalisation is fixed too high it may lead to pressure by railway shareholders in the future for an increase in the net revenue. It will be impossible for shareholders buying railway stock in the next few years to appreciate fully the method of capitalisation agreed upon, or its influences and implications. The financial experts in the Seanad will, I am sure, be able to explain much better than I could, how future purchasers of stock might be, more or less, misled as to the value of railway shares. When they find out their mistake they will almost inevitably come forward and demand a higher net revenue than that allowed under the terms of the Bill.
I know that Sections 53 and 54 lay down the total amount that may be allowed in net revenue, but future developments may make a very good case for stock-holders to ask for an increase in that, because of the fact that the preliminary schemes which were submitted, and which will eventually become the approved schemes, have not treated them fairly and disclosed the full implications of the method of capitalisation. The desire of the Bill is to set the railway industry on its feet and to make it efficient. This can only be done if the capitalisation is carried out on sound financial lines. I do not know why there should be any particular objection to that, as all schemes which the tribunal itself shall enforce are subject to the provisions of Section 8. As the preliminary schemes have to be submitted by the 31st July, it is obvious that it is anticipated, and, indeed, well known, that these schemes are already prepared, ready for submission to the tribunal. The State is taking a big responsibility in respect of this Bill. It is guaranteeing a net revenue of the average of the three pre-war years, and it is pledging itself to support the companies against the travelling and trading community in order to ensure that this net revenue shall be secured
Because of these big responsibilities which the Oireachtas is putting on the State, I think it is eminently desirable that the railways should be placed on a sound financial basis. We have no guarantee that this is going to be the case, unless the tribunal examines on the merits these preliminary schemes. As I stated at the beginning, the only duty of the tribunal is to see that the procedure is complied with, that the schemes shall contain certain provisions, but the nature of these provisions is not a matter for them to examine or to alter in any way. That is a weakness in the Bill. As the State is accepting the responsibilities I have mentioned under Sections 53 and 54, it is, I think, the duty of the tribunal, which will be the protector of the interests of the trading and commercial community and of the community as a whole, if they are to satisfy public requirements, to examine these preliminary schemes and to see that they are placed on a fair, equitable and sound financial basis.
I do not think it is the business of the railway tribunal to inquire into the conditions of capitalisation or to protect innocent purchasers of railway stock against the alleged and most unlikely manipulations of railway financiers. I think the Stock Exchange and their advisers are well able to look after them. If the State once begins getting a tribunal to protect all investors it would open up an endless vista of complications and impossibilities. I do not think that the Senator who moved the amendment fully appreciates the distinction between revenue and capital. I do not see how in this relation they can have any bearing upon one another. The standard revenue is the net amount which arises after the payment of expenses and has nothing to do with the capital except in so far as it pays certain interest thereon. I do not see how any manipulation of capital is going to affect the amount of the standard revenue, which is a separate matter. One other point I should definitely like to challenge. The Senator said that the State is guaranteeing the pre-war revenue. I do not think that is a fair description. The State is practically taking over, through the tribunal, the fixing of rates and, to a great extent, limiting the revenue to that of these pre-war years. I do not think the term "guarantee" is correctly used in this connection.
There is one preliminary minor objection to this amendment. It is an amendment to Section 8, but it proposes to deal with agreed schemes. Agreed and preliminary schemes are dealt with under other sections. The amendment to Section 8, which deals with the determination by the railway tribunal in case there is not agreement, would land the tribunal in a very awkward position, because they would find themselves faced with contradictory provisions. They would find themselves with a very clear indication of what had to be done in the case of preliminary and agreed schemes, and when they came to a later section, dealing not with preliminary or agreed schemes, but with a situation where there was no agreement, then they would find a section which appeared to have a repercussion on an agreed or preliminary scheme. So that the amendment, to my mind, is not moved to the proper section. To take it on its merits, apart from where it might come in, the answer is as stated by Senator Sir John Keane, that the basis of the Bill is that railway proprietors are to be secured a standard revenue, and whatever manipulations there may be between stockholders is no concern of ours. This Bill is, to a certain extent, interfering with private property rights, and that interference must be cut down to the absolute minimum. We are guaranteeing a standard revenue, and the method by which that is to be brought about is laid down very specifically. Persons interested and desirous of being heard may appear at any stage of the proceedings. The public interests are very well safeguarded, and the standard revenue, on which the standard rates will afterwards be built up, is the main thing. It is really no concern of the railway tribunal or the Government what manipulation there may be between stockholders.
Amendment put and declared lost.
I beg to move:—
Section 8. To delete the word "amalgamated" in line 21 and immediately after the word "company" in the same line to insert the words "in which it is amalgamated or absorbed."
This is a more or less drafting amendment, and is necessary because the company formed by a preliminary scheme, or in which a company is absorbed, may not be the amalgamated company, and may precede the formation of the amalgamated company.
I did not advert to this as a drafting amendment. I had looked upon it rather as consequential to Senator O'Farrell's amendment, which has been defeated. In so far as it is described as a drafting amendment, if the Senator would be good enough to let it stand over for the Report Stage, we can see if any other formula can be agreed to.
I am satisfied.
Amendment, by leave, withdrawn. Section ordered to stand part of the Bill.
Section 9 ordered to stand part of the Bill.
(1) Any two or more amalgamating companies may, at any time after the passing of this Act and prior to the 31st day of July, 1924, submit to the Minister for reference to the railway tribunal a preliminary scheme for the amalgamation of those companies.
(2) An amalgamating company or any two or more amalgamating companies may, at any time after the passing of this Act, submit to the Minister for reference to the railway tribunal a preliminary scheme for the absorption by such amalgamating company or companies of any absorbed company or companies upon such terms as may be agreed between those companies.
(3) The railway tribunal shall approve any such preliminary scheme so referred to them unless it appears to them that the provisions of this Act relating to the procedure preliminary to the submission of a scheme have not been complied with, or unless after hearing such of the other amalgamating companies as desire to be heard, the railway tribunal consider the scheme to be inconsistent with or prejudicial to the amalgamation scheme to be made in accordance with the provisions of this Act.
(4) Every such preliminary scheme shall, subject to such provisions in that behalf as may be contained therein, come into operation forthwith after it is approved.
(5) Subject to the provisions of this section, all the provisions of this Part of the Act relating to amalgamation and absorption schemes shall, with the necessary adaptations, apply respectively to preliminary amalgamation and absorption schemes except that a preliminary amalgamation shall, instead of giving effect to the provisions contained in the Second Schedule to this Act with respect to the direction of the Company, make such alternative provision in that respect as may be agreed between the companies to be amalgamated.
(6) In the confirmation or preparation and settlement of the amalgation scheme the railway tribunal shall give effect to any preliminary scheme approved by them, but so that the interests of the other amalgamating companies shall not be prejudiced thereby.
(7) Any company formed by a preliminary amalgamation scheme shall be deemed to be an amalgamating company for the purposes of this Act in lieu of the companies amalgamated by the scheme, and shall not be deemed to be the amalgamated company within the meaning of this Act.
I beg to move:—
Section 10, sub-section (2). Immediately after the word "Act" in line 26 to insert the words "and prior to the 31st day of July, 1924."
The effect of the amendment is to ensure that any preliminary scheme for the absorption of any company or companies shall be submitted as an agreed scheme by the 31st July, 1924, the same date as is set out in the previous sub-section. As it stands at present, there is no time limit in which such a scheme of absorption may be submitted, so that the companies to be absorbed could claim an indefinite period before an agreed scheme may be submitted on their behalf, and before which the railway tribunal could intervene. I think it is necessary that this should be inserted, and I hope the Minister will accept it.
This is on all fours with a similar amendment in the other House to the first section, and is quite acceptable.
Amendment put and agreed to.
Question—"That Section 11, as amended, stand part of the Bill"—put and agreed to.
(1) The provisions of the Third Schedule to this Act shall, with the modifications hereinafter mentioned, apply to every person who was on the 3rd day of April, 1924, an officer or servant of the Irish Railway Clearing House, and who, as a result of any re-organisation of the Irish Railway Clearing House taking place within three years after the passing of this Act, is discharged on account of the abolition of his office or situation, or is required to perform duties such as are not analogous or are an unreasonable addition, to those which he was required to perform immediately previous to the date aforesaid.
(2) For the purpose of the application of the Third Schedule to this Act to the persons aforesaid, the said Schedule shall be construed and take effect as if the Irish Railway Clearing House were substituted in the said Schedule for the amalgamated company, and the persons aforesaid were officers or servants of an amalgamating company.
Section 12 sub-section (1). To delete in line 5 the words "with the modifications hereinafter mentioned."
Section 12. To delete all after the word "House" in line 7 down to and including the word "effect" in line 16.
These two amendments are really part and parcel of the one proposal. The section as it stands deals with the employees of the Irish Railway Clearing House. In all other respects, the employees of the Railway Clearing House are placed in the same position as those of the amalgamated company. In the case of the employees of the companies which will form the amalgamated company redundance arising out of the operations of the Bill will be compensated for. A man losing his position will get compensation under certain conditions, and there is no time limit fixed within which that redundancy carrying compensation may ensue, because it is obvious that in amalgamating a large number of companies of that kind a lot of clearing up work will have to be done before the new company can really say the number of staffs they will require. It would be unfair in these circumstances to fix any definite time limit so long as it can be shown that the redundancy occurred as a result of the operation of the Act. In the case of the Railway Clearing House the Bill lays down a period of three years. After that time any redundancy arising from any cause will not be compensated for. Clerks may find themselves unemployed, will be put on the labour market, and get no compensation, while clerks in a railway company, or any other employee, after 5 or 6 years will get compensation. That is placing the staff of the Railway Clearing House in a very inequitable position as compared with men doing railway work on the railways. It is true that the Clearing House is an institution which does the work of the whole of the railways, whether they are to be amalgamated or otherwise, and also of some of the shipping companies, and the Clearing House here is being placed on the same basis as the amalgamated company. The experience is that the tendency has been rather to increase the staff of the Railway Clearing House in recent years, and the inference will be that any redundancy that will take place within the next 5 or 6 years will in all probability be due to the operations of this Bill. If it is not due to the operation of the Bill, then it will be open to the amalgamated company or the Clearing House to take the matter to the arbitrator under Schedule 3 and say "This redundancy did not arise under the operation of the Act, and we should not be asked to pay compensation."
In the case of the British railways there was no such time limit at all. The grouping in England began operation on the 1st January, 1923, or eighteen months ago, and up to the present not a single clerk has become unemployed in the railway clearing house. In fact the position is that they had to increase the staff there to deal with the amount of clearing up work that has to be done. It is quite possible that three years will have elapsed before any serious redundancy will take place. After that three years it is possible redundancy will begin to show itself, and employees will be dismissed. If the Bill remains as it is they will have no compensation. I do not think that is a fair position to place these men in, seeing that they are part and parcel of the railway industry, and that they are doing railway work as genuinely as if employed by railway companies. They are employed by the railway companies in this clearing work, and if they become unemployed by the operation of this measure, say, after three and a half years, instead of three years, they would be told that the time limit has now elapsed and they had no claim to compensation. If the directors of the amalgamated company wanted to be unfair—and I do not say that they would—they could hold up the re-organisation until after three years had expired, and turn out the whole of the men without any compensation at all. I know that is a thing that is not likely to happen, but it is possible, and a possibility of that kind which happens so often in commercial and human affairs should not be rendered possible by the Bill. The two amendments in my name are really part of the same proposal, and one hinges on the other.
Would the result of the acceptance of your amendments be to leave no time limit?
Yes, to put them on the same basis as the other railway employees.
Is it a fact that there is no time limit to the right of the staff in the railways themselves to apply for this compensation under Schedule 3? I thought there was a time limit to the general staff as well as to the staff of the clearing house, but I quite agree with Senator O'Farrell that whatever terms are applied to the railways ought to be applied to the clearing house staff. I cannot see why they should be treated worse than the staff of the railways.
In reply to Senator Jameson I wish to make it quite clear that there is no time limit with regard to any other railway employee. There is a definite time limit laid down with regard to the employees of the Irish Railway Clearing House, for a very definite reason. The main work of the Railway Clearing House is the division of the through rates on the traffic operating between the hitherto separate companies. These companies will become one immediately at the period after the passing of the Bill, the definite period set out, and the main bulk of the work done by the Irish Railway Clearing House will cease, and the redundancy, if there is going to be redundancy, will arise within the three years period. It ought to arise within twelve months. If this amendment is accepted it will mean that, say, ten, fifteen, or twenty years hereafter, on something not arising really out of the amalgamation scheme, a man may become redundant, and will then become entitled to a pension and allowance as a result of something not arising out of the amalgation scheme. The period of three years is put down definitely here, because it should be considered, and it ought to be clear from what I have said, that the immediate effect of the amalgamation scheme will be felt at once on the Irish Railway Clearing House. Three years is a long period—it could be limited to one—but three years put it beyond all doubt that if anyone suffers from the amalgamated scheme, his suffering will become evident within three years.
May I ask the Minister with regard to the rates, that is to say overseas with the English companies, do the clerks in the Irish Railway Clearing House have to do with them?
But I imagine that is a rather serious amount, and if so I think Senator O'Farrell's contention should be attended to, because I do not see myself how the matter is going to close up in three years. I hope our trade will go on with the other side, and a very important trade it is, too.
It is quite correct that the Irish Railway Clearing House in Dublin deals with oversea and through rates across Channel, but the tendency has been in later years that the Dublin house should deal more and more with this, and not the London house. There has been a very definite effort on the part of the railway managers to have these things dealt with in the Railway Clearing House, and not across the water, but that is allowed for. That has almost reached its maximum point. The clearance, so far as the Irish Railway Clearing House is concerned, will not be lessened or increased by the amalgamation scheme. Certain things will be lessened, such as the division of certain receipts, and then there will be a redundancy, and that redundancy is bound to take place within three years.
It seems to me that there is a good deal to be said for the amendments. Perhaps if the Minister would explain how he would answer Senator O'Farrell's point about the fact that the English Clearing House now employs as many or more men, eighteen months after the English system began to operate we might vote otherwise, but unless he explains that I will vote for the amendment.
With regard to the Irish Railway Clearing House, there are 70 railway and shipping companies parties to that system. About one-third of that number is going to be affected by the Bill, and if the amendment is passed it means that any redundancy arising from any operations of the other two-thirds, will be put upon the shoulders of the amalgamated undertaking, and whatever payments have to be made will come out of that undertaking.
I would like to ask a question of the Minister. He says that the servants of the railway companies are given an unlimited time in which to make this application, if they are put out of service for any reason given in Schedule 3. He also tells us that the reason for not applying that to the Clearing House employees is that the Clearing House work will be greatly cut down in the amount of services which will be required. He also tells us that if we adopt the amendment, if at any time in the future there is re-organisation, or if anything happens in the Clearing House, which has nothing to do with the matter referred to in the Bill, and which we are now debating, it will give a right to the Clearing House employees to apply for the conditions contained in Schedule 3. I wonder does the Minister recognise that he is giving that right to every single employee of all the railway companies. If the amendment means that a re-organisation of the Clearing House system at any time will give the whole staff rights under Schedule 3 it does not seem a right thing to do, but that, however, from what the Minister says, is apparently what the Bill is giving to employees of all the railway companies as long as they do not belong to the Clearing House.
I wonder is that a wise thing to do. As I read the Bill I understood that because of the interference employees of the railway system were to be specially treated. That, of course, was quite clear, but if for ever and ever Schedule 3 can be applied as against the board of the amalgamated company, we undoubtedly seem to be giving away a great deal more than I dreamt of giving away in the Bill. Am I right in concluding from the Minister's remarks, that hereafter if at any time, for any reason, any member of the staff of the railway company becomes redundant he can appeal under the clauses of Schedule 3? That would extend the Bill altogether into regions which I did not know we were going into.
I would point out to Senator Jameson that no man can claim compensation unless he is rendered redundant because of the operations of the Bill. If his redundancy would have occurred, even if this Bill had not been passed, in these circumstances he could not claim compensation. Senator Jameson need have no fear that there is anything revolutionary in this Bill in that respect. It is a worse Bill in that respect than the British Railway Act. He will agree that a Bill passed by the British Parliament before Mr. Ramsay MacDonald's Government went into power would not be a revolutionary measure. The Bill provides that any man or woman who becomes redundant, because of the operations of this Bill, shall have the right of compensation. That is only right and it is the principle observed in every such measure. The railway companies themselves will bring about redundancy in the interests of economy as quickly as they can. If there is any question as to whether the redundancy did not arise because of the operations of the Bill, an appeal is given to the arbitrator who is to be appointed by the Chief Justice. That is my reply to the Minister. He mentioned 15 or 20 years' time, but that is too extravagant. Say, however, that in five years' time employees of the railway company may become redundant, they can claim that the redundancy was caused by the operations of the Act. If the railway companies say no, that it was due to another reason, they have the right to appeal to the arbitrator, and he in his judgment will be able to say whether it was or not.
The main work of the Railway Clearing House is taken up in the division of receipts, through or foreign, between the non-amalgamated companies, such as the Great Northern, but not so much as between the companies that are to form this combine. In England there was a far greater revolution, as 138 companies were amalgamated into four companies. One would imagine that there would be a huge redundancy at once, yet eighteen months after the passing of the British Railway Act, the staff of the Clearing House in London is greater than it was before grouping began to operate. It is safe to assume that five years will elapse before ordinary, permanent conditions will have been reached here. In view of the fact that the total staff of the Clearing House here is under 200, including lady clerks and temporary clerks, who have not the right to compensation, the amount of redundancy cannot be big, and the amount of compensation will be small. Because of that, should we run the chance of treating even two or three people with injustice and differentiate between those employees and others engaged on similar work elsewhere?
Would it meet the case, if instead of saying "three years" the words "five years" were substituted?
Do you move that as an amendment?
The amendment, inasmuch as it puts a definite limit on Senator O'Farrell's unlimited amendment, is, to that extent, an improvement, but as between three and five years it is a matter for the judgment of the Seanad. I put it again, however, that the portion of the work to be effected by the amalgamation is the division of the through rates as between the now separate undertakings. A certain number of these undertakings are going to be amalgamated. A number of them will disappear, redundancy will occur—it ought to occur within three years—and there is no ground for enlarging the period to five years. With regard to the other points raised, the argument has been used that the English Railway Clearing House is working with increased numbers, and we are asked to bear that in mind when considering this amendment. The English Railway Clearing House may be working with increased numbers, but that is not because of the ordinary Clearing House work. They have taken on to their shoulders an amount of extra work in consequence of grouping. There is no such thing here; there will be no extra work thrown upon the Clearing House here. There will be a reduction of the work, and there will be no increase as a result of the amalgamation scheme, and there is, in fact, bound to be a decrease. As to Senator Jameson's point with regard to the employees in Schedule 3, the matter is unlimited so far as time goes, but so far as personnel is concerned there is a definite limitation.
Take the employees of the separate railway concerns. Some of them are taken over by the amalgamated undertaking, only such as are necessary; therefore, the amalgamated undertaking starts, not with a swollen staff, but with a staff cut down to suit its requirements, and it is only right that if certain members of that staff become redundant they should be pensionable and have a right to compensation. That is allowed for in the Bill. It is limited so far as personnel goes. There is a definite segregation of employees required for the amalgamated work at the beginning, and some are rendered redundant by reason of amalgamation. May I repeat again that if the amendment be accepted in the form originally moved, it means, in the case of 70 railway and shipping companies concerned in the Clearing House system, that there is no time limit. Say, for instance, that employees of the Caledonian Railway, a party to the Irish Railway Clearing House, do something hereafter which rendered them liable to discharge under the section, if it were amended as proposed, they could come here and claim to be put on the shoulders of the amalgamated undertaking.
What about the arbitrator?
They could make a claim. If the arbitrator is a safeguard, is there any reason urged yet why the three-year period should not be kept to? I think the facts are patent and that great redundancy will occur within the three years.
I think that members should realise that the work of the Irish Railway Clearing House will be effected very much more quickly by the operations of the Bill than that of the railway company. The effect on the latter will not work out for quite a long time. Different systems of working will be introduced and economies will take a long time to be effected, whereas the effect on the work of the Clearing House will be immediate. I do not think that there is any necessity for such amendment.
As regards Senator Bagwell's statement, I may say that it is in contravention of what happened elsewhere. As "five years" is better than "three," I would appeal to the Minister to accept it.
Would Senators Guinness and O'Farrell be satisfied if the amendment took the form of stating, "taking place within five years," and putting in, two lines above, the word "direct" before the word "result"?
That is assumed in all cases, and a similar word is not introduced in the case of railway employees.
I follow that, but the two conditions are different.
There may be a difference, but there is no difference here that would not operate in Great Britain. I do not think that there is any danger. I would suggest to the Minister that he would accept the five years. There is, moreover, always the arbitrator.
I think the suggestion of the Chairman is very valuable, that we should have the phrase, "direct result," and enlarge the time to five years.
The effect of that will be that every case will have to go forward and be proved. The company will not have the right to allow compensation without coming to the arbitrator.
I do not think that that is right. If the company are satisfied that it is a direct result, I do not think that there is any necessity for the arbitrator to intervene if they are agreed.
I quite agree that there is not much in that "direct result." I accept that.
The amendment is now altered so that the word "direct" is inserted before the word "result," and the word "three" is altered to "five."
Amendment, as amended, put and agreed to.
Question: "That Clause 12, as amended, stand part of the Bill"— put and agreed to.
ESTABLISHMENT OF RAILWAY TRIBUNAL.
13.—(1) There shall be established a court styled the railway tribunal consisting of three standing members, that is to say, a chairman and two ordinary members, all of whom shall be appointed by the Governor-General on the advice of the Executive Council.
(2) Each of the standing members of the railway tribunal shall be appointed and hold office for five years and shall then retire, but shall be eligible for reappointment.
(3) A standing member of the railway tribunal may resign his office at any time.
(4) A standing member of the railway tribunal may only be removed from his office by a resolution passed by Dáil Eireann and by Seanad Eireann for incapacity or misbehaviour stated in such resolution.
(5) The railway tribunal shall be a court of record and shall have an official seal, which shall be officially and judicially noticed, and the railway tribunal may act notwithstanding a vacancy in its number.
I beg to move the amendment standing in my name:—"In section 13, sub-section (1), line 23, to delete the word "three," and to substitute therefor the word "five." Also in line 24 to delete the word "two" and to substitute therefor the word "four."
This amendment is not proposed in any way as hostile to the principles of the Bill. It is merely put forward as a safeguarding amendment. We have no objection to the fact that the head of the tribunal is to be a judge and that there is to be an expert railway man on the tribunal. Nevertheless, we think that on the whole this tribunal is too narrow. We think also that the chief supporters of the railways in the Free State, the agriculturists and the commercial men, are entitled to at least three representatives on the tribunal. Now, there is an old adage that "the man who pays the piper calls the tune." These sections, the agriculturists, the manufacturers and the wholesale distributors are really the principal supporters of the railways in the Free State and elsewhere. We do not want in any way to impair the principles of the Bill nor to injure it. We want to make the best we can of it. We want, if possible, to make it as popular as it can be made with the business people, the traders and the agriculturists of this country. Doubt has been expressed that one business man on this tribunal would have a very poor show with the learned judge and a railway representative who, no doubt, will safeguard the interests of the railway stockholders. That is a perfectly natural conclusion to arrive at.
Our object is to safeguard the interests of the agriculturists and particularly the interests of manufacturers and the businessmen in the Free State. I hope that the Minister will see his way to meet us in this amendment. We are determined to do all we can to help the railways out of the present condition in which they find themselves. They are, no doubt, suffering considerably. They have suffered in the past two years, and are threatened seriously by motor haulage. Motor haulage is a powerful factor in the transit system of the country. For one thing, motors are a good deal more satisfactory for the transit of goods than railways. One might say that goods are moved in motors from door to door, from the sender's door to the consumer's door. There is no delay, there are no goods missing, and there are no disputes, and it is a service that entirely appeals to us. If the railways wish to keep the business of the community, they will have to give a service that will at least be as satisfactory as that now offered by motor transit. The object of this amendment is, as I have said, to meet the desire of the business people and the agriculturists to have more representation on this tribunal.
I should like to support the amendment proposed by Senator O'Dea, not that I feel that a tribunal of three could not possibly do all that is asked of it, but I think a slight extension of its numbers would be better. There is no doubt that the agricultural community, and this is an agricultural community, will feel that they have been more or less left out of consideration unless this amendment is accepted. Whether that is wise or not I leave it for the Minister to decide in regard to the acceptance or not of this amendment. Other amendments to the Bill involve this particular claim. That the one great interest of the country, the agricultural interest, which pays for everything, so to speak—pays for three-fourths of the activity of the country—that that important industry should have no one capable of taking a useful part in a tribunal established for the purpose of increasing railway accommodation and increasing its usefulness is, I think, a slur on the industry. For that reason I support this amendment.
The amendment seems to me to be not an improvement. I think that any attempt to render a body of this kind representative of different trades is, in principle, entirely wrong. I agree with everything that has been said by Senator Bennett regarding the great importance to this country of its agricultural business, which is its biggest business, but I think the principle the Government had in mind in setting up this tribunal was the protection of the public; that is the inhabitants of the country as a whole. They are entitled to greater consideration than the particular people of any one industry, and I think it is a mistake that a tribunal of this kind should be confined to any particular trade or industry. I think the members of that tribunal are far more likely to take a broad view of the matters submitted to them if the tribunal is confined to three members, as set down in the Bill. It is impossible, after all, for any member of this tribunal to know everything, but surely it is possible to select a representative who will have sufficient ability to consider the various interests and the necessities which will arise in dealing with any particular set of rates or other matters which the tribunal will have to deal with. I think to make it representative of various trades and industries is a great mistake. It should be in itself a judicial body.
Senator Bagwell's statement implies that Senator O'Dea's amendment aims at having the tribunal representative of different trades. That is not so. The amendment aims at having a representative of the one trade that is the mainstay of the country, the one trade that creates 80 per cent, of the wealth of the country. One may reasonably assume that the commercial representative represents the other 20 per cent. of the trade of the community. Considering that the country's trade is mainly agricultural and that agricultural interests are so different in outlook from the interests that are commonly called commercial, it is advisable to have somebody on the tribunal that would have an agricultural knowledge.
I think the arguments used by Senator Bagwell are as much against the Section as it stands as against the amendment proposed by Senator O'Dea. If the tribunal is to be independent of all interests and all parties, why, then, are the terms used that one of the members shall be experienced in commercial affairs and another experienced in railway affairs? If it is right that none of the interests concerned in the future working of this Bill should be put on this railway tribunal, I think the proper method of carrying it out would be, not to mention qualifications at all of any of the members, but to leave it an open matter in the selection of these two people. As it has been put into the Bill that commercial and railway interests are to be represented on the tribunal and that agricultural and other interests are to be excluded, I think the amendment proposed by Senator O'Dea is one that should be accepted by the Seanad.
I think that some members of the Seanad who have spoken have forgotten that in addition to the railway tribunal, a standing tribunal of three members, there is also a panel, and that when any question comes up before the tribunal for decision possibly in connection with agricultural interests or any other interest, the tribunal, as such, will call from the panel experts or assessors to assist them in the particular point or question which is put before them and which it is possible they may not have personal experience of. For that reason I agree with Senator Bagwell that it is much better to have these three members as impartial and as unconnected with any particular trade as you can have them.
I think Senator O'Dea's amendment goes a long way further than the remarks that have been made about it would seem to indicate. What is established here really is a court of three members. It is a very high tribunal. It is practically given all the powers of a court, and it is to act as a court. It can summon witnesses and do everything that judges do. We can easily see that the chairman is to be a lawyer of the very highest class. He sits there with, on one side an individual advising him on the subject of railway matters, an individual with railway experience; and on the other side is an individual versed in commercial affairs. That means an ordinary man who has had a business training and who is in the habit of handling business affairs. Agriculturists are business men, according to their own lights.
Evidently this Section points at a man who has had experience in many other directions than in the particular trade with which he is connected. You then have a tribunal of three persons, one more or less independent, who will be guided in giving his decision by the case the other two put before him, and then you will have a majority of two settling the question, unless they all agree upon the decision. Senator O'Dea's amendment tends to destroy that balance entirely. He leaves in the man versed in railway affairs, and then instead of one individual of business capacity he puts in one man with commercial knowledge one manufacturer and one representative of agriculture, all of whom are appointed, not because of their personal qualifications, but as representatives to fight for the particular interests they represent. If Senator O'Dea's point is worth having, the agricultural man must battle for everything connected with agriculture, the manufacturer must battle for everything connected with manufactures, and the commercial man must try and battle for the interests of the business community. You will then have the poor lawyer at the head of affairs with four different individuals all battling for particular interests around him, individuals appointed to look after the section of the community they were elected to represent.
To call that a tribunal and to set it up as a court which is to decide all those matters seems to me to destroy all chance of any success coming out of the railway tribunal at all. There is no use in talking in the Seanad about the value of agriculture in the Free State. We all know that it is valuable. Senator Guinness has already stated that in Section 17 agriculture is undoubtedly dealt with on the Panel, and it seems to me that the particular interests involved are all very carefully dealt with. The railway tribunal is supposed to be above all those individual interests, and I think it would be unwise on the part of the Seanad to push into that tribunal men who would be appointed to represent special interests and to bring the number constituting the tribunal up to five, with a large proportion of that number appointed to represent special interests and not the general affairs of the community. Those appointed to the tribunal should not fight for particular interests, but rather should decide as between the community as a whole and the amalgamated company. By altering the constitution of the tribunal you would destroy the simplicity of the whole thing, and you would probably always have a minority report; and as far as the ordinary individual who would be connected with business affairs is concerned, you would destroy absolutely all chance of getting any really good work out of the railway tribunal. If there is one thing to which the community should look forward to in this Bill, and which is really the best thing in the measure, it is the railway tribunal. We ought to be extremely careful to see that no sectional representation is pushed into that tribunal. Such a thing would practically destroy it as far as its effective use for being a real Appeal Board for every interest in the country is concerned. It should be a real Appeal Board to which people could turn, knowing that they are going to get absolute justice and fair treatment.
I notice that one member of the tribunal is to be experienced in commercial affairs. Considering that most of our commerce in the Irish Free State is the produce of agriculture, I should say that the gentleman who would be appointed ought to consider that fact. There is no doubt that cattle, sheep, pigs, horses, butter, eggs, etc., form the chief articles of our commerce. The amendment deals with the addition of two more members to the tribunal. Under Section 15, payment to the members of this tribunal is indicated; that is very clearly set forth in the Section. The railway companies have to pay one-half of the sum involved and the taxpayers have to pay the other half. I, as a taxpayer, very strongly object to having two more members put on. That point has not been raised at all, and as we have a right to deal with financial clauses in a Bill which is not a Money Bill, I think it is only fair that the Seanad and the Minister should know that the taxpayers will have to bear portion of the cost involved in paying those gentlemen. I do not wish to say anything more, but I shall certainly vote against the amendment.
The Irish Cattle Trade and the Live Stock Owners' Association, whom I represent, have decided objections to many clauses in this Bill, but they have instructed me to support it because they see in this railway tribunal the only redeeming feature of the measure. I think I have a right to support or to compromise on this amendment. Later on there is an amendment of my own which will come under consideration. I would like to point to the fact that the cattle trade is one of the most important branches of industry in the country, and I believe that we should have representation amongst the big three of the railway tribunal. I do not agree with what Senator Jameson says as regards putting men on the tribunal representing sections. The agriculturists do not desire that there should be any sectional representation, and they have no anxiety that their representative would give an unfair or biased decision.
The Senator points out that tribunal representatives would be more or less in a judicial capacity. When you are appointing a judge you do not select a man who has not a knowledge of law. It does not follow that any person on the tribunal with a knowledge of the live stock trade and of agriculture would not be sufficiently qualified to give a fair, reasonable and proper decision on questions which would come under consideration. The person who may be selected because of a knowledge of commercial affairs may be the manager of a haberdashery store, and he would understand nothing whatever about agriculture and live stock in the country. I suggest that Senator O'Dea would withdraw his amendment if the Minister would be satisfied to compromise. We are not particular whether the number on the tribunal is three, four or five, so long as one of the members would have a knowledge of agriculture and live stock. If the Minister would find a word that would suit our view-point we would be prepared to accept it.
There is no doubt Senator Jameson put up an excellent case, but I really think it was an excellent case for the amendment. He suggests forsooth that this tribunal is to be an absolutely judicial body. If it is, why not make it a tribunal of judges? Why were the words "commercial" and "railway" brought in in connection with the constitution of the tribunal if it were not expressly for the purpose of showing that commerce and railways were to get special consideration from the tribunal? That case was freely developed by Senator Bagwell, and it was stated that this was no sectional tribunal but was a tribunal for the country. Very properly in the first instance the Government got a judge, a man versed in law, versed in evidence and versed in the various necessities of a tribunal such as this. But, having got that far, their intentions were turned aside from their purpose and they were led to appoint representatives of commerce and railways. Because agriculture was not vocal enough, because it was not considered of sufficient importance, because, so to speak, it was the child of the community, to which everything is turned on, and that it must be taught and advanced in every way, it was not taken into consideration in this matter.
I, as an agriculturist, am prepared absolutely to accept a tribunal of three judges. This amendment may be passed, but I am not content with a tribunal representative of sectional interests such as this tribunal is. I think the Government should accept the amendment, because it is a reasonable one. The fear that there may be discord, as suggested by Senator Jameson, will never arise. If the Chairman, as he suggests, wants to be guided aright as regards commercial matters and as regards railway matters, surely all the more he requires to be guided right as regards agricultural matters? We are told that the agriculturist in this country needs all sorts of teaching. He is to be actually taught out of existence. He is to produce agricultural produce to a greater extent than he does now; but having produced it he has no guarantee, because of the sectional interests involved in this tribunal, that his interests will be considered properly. For that reason I think the farmer and the manufacturer should be represented on the tribunal and the amendment ought to get every consideration from the Minister.
I, too speak as an agriculturist, but I cannot say that I feel very excited or very hot about this matter. In my opinion, if we were to cut out sub-section 3 altogether, the whole case would be met. At first I was inclined to agree with what Senator O'Dea said, but certainly Senator Jameson put up a very good case. I think if we leave out sub-section 3 the whole matter will be remedied.
I entirely agree with the last speaker. There is no doubt that the definition of the qualifications of the two members of the tribunal has made the agricultural community somewhat suspicious. I saw it stated in the columns of the "Irish Farmer" the other day that Ireland has but one industry and that is agriculture, and incidentally she has but one customer. There is a most important point that has been missed altogether in connection with transit, and that is the facilities given for the importation of foreign foods. It would be open to this railway tribunal to sanction through rates from the Continent for foreign food. They could, say, grant a through rate from Copenhagen to Maryborough, or any inland town which might place Irish butter at a great disadvantage. There are several matters of this kind which, I think, would necessitate that at any rate there should be one member of the tribunal who would have a knowledge of agriculture. The transit of live stock is a matter of great importance in the country. Therefore, I think, by omitting the qualifications for two members of the tribunal, the case will be met, and I am quite certain the Government, being fully alive to the importance of the industry, will probably take care that one or both of the two members of the tribunal should be thoroughly qualified in respect to dealing with matters which concern both agriculture and ordinary commerce.
I presume I am not now in order in moving the deletion of sub-section (3)?
We are now dealing with Section 13, which refers to the number that should constitute the permanent railway tribunal. If the amendment is rejected it would be quite open to you when we come to Section 14 to move the omission of sub-section (3).
I listened to the arguments which have been advanced, and I think they all tend towards the conclusion and point to the necessity of the tribunal being a purely judicial body. It is very hard for any member, a commercial man, or a railway man, on a tribunal of that sort — a judicial body carrying out judicial functions — who has been associated for the greater part of his life with one or with several commercial interests to be supposed to dissociate himself within three months from every financial interest he may possess with regard to commerce or railways in order to qualify him for such a tribunal. It is very hard for him to sever his mind and to keep it apart so that he may properly carry out his duties as a member of that tribunal. It is almost more than human that a man appointed to such a tribunal and having those interests with which he has been so intimately associated during his life, could have an impartial mind on matters that come before him. The commercial man will have the commercial instinct, and he will be biased in that direction. The railway man will be biased also. In theory, of course, a judge on the bench dissociates himself from all interests that come before him, and tries to bring an impartial mind to bear on the matters that he has to adjudicate upon. It is very well in theory — I daresay our judges try to do that conscientiously, as far as it is humanly possible to do it—but a man who has been steeped in commerce, or who has been a railway man all his life, gets a habit of mind that it is very hard to alter.
If the tribunal is to have a purely judicial function it must be composed of people who are qualified to act in that capacity. They must be legal men. You have your courts of law every day dealing with most diverse matters, agriculture, commerce, railways, mining interests, and the judges constituting these courts have no specific or detailed knowledge of the matters that come before them. But they have power to bring in expert evidence and extract from these experts whatever information they consider necessary for coming to a proper decision. If this tribunal is a tribunal to stand between the partisan interests and the community as a whole — and the community is to be the main consideration in the matter — and to elucidate evidence, I think it should be a purely judicial tribunal comprised of men qualified legally to sit and deal with such happenings. It has been suggested to eliminate sub-section (3) of section 14, where one of the two members must be a commercial man and the other a railway man. If you eliminate that section a tribunal would be appointed consisting of the chairman, who must, of necessity, be a practising barrister or judge, and two ordinary members. That leaves the Governor-General with a very wide discretion. There is no limitation at all, no direction to him as to who these two men may be, or what their experience or anything else may be.
I want again to point out that at present we are dealing solely with Section 13, and the question before the House, and the only question, is whether the tribunal is to consist of three or five. If the amendment enlarging it to five is lost, it will then be open to anyone to move the omission of sub-section (3) to Section 14 when we come to it.
There is another reason why there should certainly be no commercial man or railway man appointed to such a tribunal, and that is because it may so happen that a commercial man, where a question comes up in which the bacon industry is involved— and that is an industry that ought to be safeguarded in this country, and very closely safeguarded, in order that our industries may be built up — his particular bent of mind may be entirely opposed to it. A commercial man may be, right through his life, interested in imports——
I really must ask the Senator not to pursue this, because we are not dealing with qualifications in this amendment at all. We are simply dealing with the number — is the number to be three or is it to be five. When that is settled the question of their qualification, if any, will arise.
All these matters that I am touching on now have been touched on by previous speakers.
Well, I thought it was time to stop it, and I am sorry, Senator, that I had to begin with you.
If you enlarge it to five, it is simply with the object of getting partisan interests represented on the tribunal, and I certainly would be opposed to that, because I hold the view that it should be a purely judicial body.
I should like to ask the Minister if he would make it clear exactly how the gentlemen on the panel function. It seems to me that the answer to this amendment very largely depends upon how Section 17 operates. I am not going into that now, but I just mention it, that there are, as everyone can see, three commercial, two labour, two passenger, one fisheries, and four agricultural representatives on that panel. If those agricultural representatives are called in whenever agricultural questions arise, in my view the agricultural position is amply safeguarded, but I am not aware under what conditions these representatives would be called upon to function.
I think Senator O'Dea came to the conclusion that the tribunal was bad, and he decided that the best way to make it better was to make it worse.
I had thought that I had moved away from the chilly atmosphere of the Dáil, and that I was coming to a more genial atmosphere, but Senator Kenny's comments have warned me that my heavy wine is going to be diluted by copious draughts of criticism here. I could not gild the refined gold of Senator Jameson's arguments. I would like to say one or two things in supplement to the matters dealt with by him. There are to be separate panels, and for all purposes other than matters arising under Part I. of the Bill the tribunal, for practical purposes, will consist of five members. For all purposes under Part III. of the Bill the tribunal may be enlarged, and on representations being made the tribunal can always be enlarged to five. If we accept this amendment the effect would be that for determining the compulsory amalgamation schemes the tribunal will consist of five, and for all other purposes the panel will consist of seven. That would be overweighted. Arguments have been used in the Dáil, and have already been used here, drawn from the example of the English system. I put it to the House that if a panel of three members is sufficient to deal with all the volume of railway business arising out of the group system in England, surely a panel of three ought to be sufficient to deal with a portion of the lines of the Free State. The operations of the panel are set out in Section 17, and the Senator referred to the panel as definitely answering most of the arguments put forward with regard to the amendment.
Is it not plain, Mr. McGilligan, that the members of the other panel, not the permanent panel, but the outside panel, once they are invited to sit do not sit as assessors but as actual members of the court? They become actual members of the court, with the same powers as the permanent members, do they not?
Yes. Sub-section 6 of section 17 says: "Any person appointed under this section to be an additional number of the railway tribunal shall, for the purposes of any proceeding in respect of which he may be so appointed, be a member of the railway tribunal and shall, subject to the provisions of this Part of this Act, and to the general rules made thereunder, have and exercise all the powers and functions of a member of the railway tribunal." The panel is really going to be for all purposes except matters arising under Part I, a panel of five members, and the agricultural interests are very carefully protected. Sub-section 1 (a) shows the big proportion of members given to the agricultural interest, so that very definitely the question of agriculture has not been forgotten. It has been argued that the tribunal should be a judicial one and a certain comment has been made upon later sections. The question of the status of the tribunal, as to whether it should be a wholly judicial tribunal or not, may I think be alluded to here.
It is wiser to keep that for Section 14. At present we are on the question as to whether the tribunal is to consist of three or five.
I shall leave that to a later stage. I shall simply refer to the one matter, the question of the appointments that would arise if the amendment were accepted. The method of appointment is described in a later section, and has been described by the Senator. It comes to this, that certain fees are to be chargeable and the excess of remuneration over that is to be paid one half by the State and one half by the amalgamating undertakings. Putting on two wholly unnecessary members on the tribunal would, of course, increase the charges. The cost of one of those members would go on the railway undertaking and the cost of the other would be borne by the taxpayer. I think, having regard to the provisions of section 17, dealing with the panel, there is no necessity for the enlargement of this tribunal.
I shall put the amendment now dealing with Section 13 alone, and I shall put the two amendments moved by Senator O'Dea, because the second one would be a necessary corollary to the first. That is to say there shall be established a court styled the railway tribunal court consisting of five standing members — that is to say a chairman and four ordinary members. The amendment is to change the word "three" to "five" and the word "two" to "four."
Amendment put and negatived.
Question: "That Section 13 stand part of the Bill"— put and agreed to.
Section 14, sub-section (3):—"One of the ordinary members of the railway tribunal shall be a person of experience in commercial affairs, and the other of such members shall be a person of experience in railway business."
There is an amendment by Senator O'Dea, which reads:—
"One of the ordinary members of the railway tribunal shall be a person of experience in commercial affairs, one a person of experience as a manufacturer, a third a person of experience in agriculture, and a fourth a person with a knowledge of railway business."
That amendment is now out of order because the Seanad has confirmed the principle of three forming the permanent tribunal, but I will take an amendment from him if he wishes to exclude sub-section (3) of Section 14, if he moves it.
I would support this amendment. This word "commercial" has a definite meaning in the affairs of life, whatever its meaning is in the dictionary. It undoubtedly typifies more a merchant or person connected in the distributing business, or banking perhaps, as against the manufacturer. I do not think it is at all desirable that this tribunal, which admittedly is going to be judicial, as far as the standing members are concerned, should in any way have indicated the qualifications of its component members. I suggest that you could not get the most competent person drawn from what you call the commercial classes alone. There may be an equally competent person who would not come under that definition. That being so, the best way is to say nothing about it but to leave the selection of the two members and the Chairman to the Governor-General on the advice of the Executive Council.
If you read Section 17 alongside of Section 14, you will find that the word "commercial" must have a limited meaning as distinct from agriculture, otherwise why, in constituting your panel, do you indicate this class separately? If they are all the same there should be no necessity for this distinction. We know that in the past there has been a considerable antagonism between organised agriculture and what has been called the commercial community. We, agriculturists, are looking for a great development of cooperative agriculture, and as farmers are doing more and more of their own business, we fear that these agricultural organisations will not come into the definition of commercial. I do not think they can. Therefore these organisations would have an undoubted right, if they possessed a qualified person amongst their number, to be nominated on the railway tribunal. It is much safer to drop sub-section (3) altogether and leave it to the Government to nominate whoever they think best fitted for the post.
It seems to me that a certain amount of confusion has arisen here from the proposer not stating the exact thing he wishes to do.
I am not very strongly opposed to this amendment to have this section deleted, and that for a reason which may not be entirely appreciated by the Seanad. The appointment is to be made by the Governor-General on the advice of the Executive Council. This is a Government Bill. If the Government have in their minds the appointment of a person of experience in commercial affairs, and the appointment of a person of experience in railway business, the mere deletion of this section is not going to change their mind. To that extent the omission of the section may not do any good. The proposition to omit the section is based on a misconception, I think. There has been raised here an antagonism between agricultural and commercial interests. It has appeared here and the statement has been made that the Government was unduly favouring commerce as against agriculture. There is no such intention. The President definitely stated in speaking of this section and on this section on the Second Reading and on the Committee Stage that the composition of the tribunal as foreseen by him would be that of a judge experienced in matters of law, a person acquainted with railway business who knew the ins and outs of the whole work of the railways, and a third person versed in accounts. I think he said an accountant. An accountant was really in his mind. If he could get a person who, in addition to being a commercial man, had a knowledge of costings and accounts, that would be the man to fill the office. If it is proposed to leave out this section, well and good. But you do not, by leaving out that section, change the intentions of the Government with regard to the appointments. Their intention has been made clear, and their intention is a good one.
The object is to remove a misconception that exists in the minds of certain persons here and of possibly persons outside, too.
Amendment put and agreed to.
Section 14, sub-section (3). Immediately after the word "in" in line 56 to insert the words "agricultural or."
I call attention to this amendment which stands in the Orders of the Day with regard to Section 14. As that has been deleted I do not see the necessity for moving it.
I had already struck out that amendment.
Question—"That Section 14, as amended, stand part of the Bill"—put and agreed to.
Question: "That Section 15 stand part of the Bill"— put and agreed to.
I beg to move:
To add at the end of the Section a new sub-section (5) as follows:—
The provisions of this Section shall not apply to the members of the two Panels constituted by Section 17 of this Act.
Our whole object in inserting amendments to this Bill is to try and secure the best people possible for the tribunal and panels, and we contend that the best and most suitable men for the railway panels would be excluded if that section is left in. People holding shares in any carrying or shipping company, according to the previous section, would be excluded from becoming members of the panel. We contend that in that case it would deprive the most suitable man from becoming a member. For instance, trustees holding shares or anybody holding shares in trust would be excluded. I think the necessity for inserting the additional sub-section is apparent to everybody.
If I might intervene, Section 16 has four sub-sections. The fourth sub-section is the definition sub-section. The other sub-sections refer to the standing members of the tribunal. This section would have no effect on members of the panel.
I was going to point that out. This section applies only to what are called standing members of the tribunal — that is to the three members. It has no application to the temporary panel.
Then I was under a misapprehension, and I withdraw the amendment.
Amendment, by leave, withdrawn.
Question—"That Section 16 stand part of the Bill"— put and agreed to.
SECTION 17 (ADDITIONAL AND TEMPORARY MEMBERS OF TRIBUNAL).
On this section I desire to ask a question. It is provided under sub-section (3) (b) that in the event of a standing member of the railway tribunal being unable to act through prolonged illness or some other unavoidable cause power is given to appoint a member of the panel to act in his place, the person so appointed being selected from the general panel or the railway and canal panel. What I want to know is: Will a member so appointed become a standing member?
That is not quite clear from the wording in the Bill. I think it could be better provided for if it were clearly expressed that the provisions of Section 16 would not apply in the case of a member so appointed from the temporary panel.
Is this to be only a temporary appointment?
It is only temporary and will only last until the other person recovers his health.
But the other person may have died.
Then a new appointment has got to be made.
There is no provision here to meet a situation of that kind.
The question now before the Seanad is that Section 17 stand part of the Bill.
I would like if the Minister would tell us how this section is going to work. The standing tribunal is given power to supplement itself for certain purposes on certain occasions, especially in this Part 3 of the Act by calling in two additional members from the panel. There are altogether on the two panels 16 members: 12 on the general panel and 4 on the railway and canal panel. I am puzzled as to how in practice the thing is going to work. When rates are being fixed will the rates concerning agriculture be taken separately, and will agriculture for that purpose be given a preponderance among the additional members? You cannot, of course, give much of a preponderance because there are only two additional members to be appointed. When other matters are taken more remote from agriculture, although all are based on agriculture will other members be called in? I really want to know how this section is going to work, because it seems to me rather puzzling at present. There are only two members out of the 16 going to be called in on the tribunal, and it looks rather as if agriculture is going to have a poor show under these conditions, because one of these members at least is coming from the railway and canal panel. I would be glad if the Minister would answer the point that I have made.
The actual working of the section, as I see it, will be this: That a particular question arises for discussion or for determination, and if that is an agricultural question then the standing tribunal will be strengthened by one member drawn from the general panel. Such a person, in that event, will naturally be representative of the agricultural interests. If, say, a question relating to fisheries arose, then the addition to the standing tribunal will be a person interested in fishery matters.
I wonder if the Minister is quite correct in stating that. Section 17 appears to contemplate an addition of two.
Only one of the additional members can come from the panel referred to as the general panel, and one from the other panel referred to as the railway and canal panel.
There will be two additional members, one taken from the railway and canal panel, and another from the general panel who is to represent the particular interest involved.
I was answering more specifically Senator Sir John Keane's point. The tribunal will always be strengthened by the addition of two members. One of these members will have to come from the railway and canal panel, and the other will be the representative of the particular interest which seems to be involved in the matter that arises for discussion. I do not see that there is any great difficulty in the working of the tribunal and in having it strengthened by members drawn from the panel, because, of course, it will be quite easy for a new member to be selected when any new matter comes before it. The agricultural representative will be drawn from the four on the general panel when an agricultural question is in dispute, and when other questions are in dispute the tribunal will be strengthened by a member interested in the question under discussion.
Can that be quite right? There will be a concrete application before the tribunal. The question to be determined is whether it is to be strengthened or not.
It is to be strengthened on application being made.
Then you bring two additional members, one from the railway and canal panel and the second representing the particular interest involved. If that interest appears for the moment to be agricultural and that it subsequently turns out that agriculture only plays a small part in it, and that it is really a commercial question, surely there is no provision here for getting rid of the agricultural member and then bringing in a new member altogether to represent the commercial interests in the same case.
Provision has not been made for that, and the only way that I see that provision could be made to meet such a situation under sub-section (4) is that the particular application be withdrawn and another substituted which would allow for the appointment of another member representing the interest which has emerged in the course of the proceedings as the particular interest involved. What An Cathaoirleach has said is quite correct. If an application is made and because of the particular class of case proceeding, an agricultural member is appointed, and it then emerges that it is some other interest that is involved, I am afraid then that the consequences of the preliminary mistake would have to be suffered except that the application might be withdrawn. If a new application were then made it could be made quite clear that the interests involved were other than those originally stated. Then there would be a shuffling as between the members of the general tribunal, and the representative of the new interest could be brought in.
I am afraid that would be very unsatisfactory, and I suggest to the Government it would be very wise if they would look into this particular section and see if they could not do something to amend it on Report. At present it seems as if it would be very difficult to work.
The suggestion could certainly be considered. I am not quite clear, though that when regard is being had to the particular class of case to be heard that a mistake is likely to happen. It is a contingency that might have to be provided against, but I imagine it will be a very rare contingency. The matter could be looked into before the Report Stage is reached.
Conceivably, cases could arise in which all the interests would be involved under Part 3, and what would happen then?
Then you would have to regard the twelve members on the general panel and see who best represents all the interests. You cannot. I am afraid, legislate for every conceivable contingency. We can strengthen the Bill as suggested by An Cathaoirleach by bringing in something under sub-section (4).
With regard to sub-section (4) there is no discretionary power given to the railway tribunal. They must appoint one man from the general panel and one from the railway and canal panel. I suggest it would be preferable to do away with that and give them power to appoint the two additional members from the general panel if the case before them so required. Supposing an agricultural question comes before them they can only appoint one representing agriculture, and another one representing railways or canals. This latter representative might be quite useless for the purpose of dealing with the question before the tribunal. Therefore, I think it would be better if the sub-section were amended so that the tribunal should have power, if they wish to use it, to appoint both members from the general panel or both from the smaller panel.
My view is that once you constitute your tribunal by calling in these two extra men they remain as the tribunal and they must take part in deciding the entire case. You cannot shift them during the progress of the case. They become members of a court for the hearing of a particular application, and no development in the course of the hearing can oust them from their position as standing members of that court. The case for good or evil would have to be determined by that tribunal of three with the two new members added, and there is no provision in this Bill to avoid that. Therefore, I was pointing out to the Government that I think it would be absolutely necessary for them to reconsider this entire section.
Arising out of that, the words of sub-section (4) are rather vague; they convey that these additional members are brought in on the application of either of the parties. To whom is the application made? Is it the Minister will decide whether the panel is to be increased or not? Because otherwise either of the railway tribunals might say: "No, we do not require it to be increased." There is nothing I can see in this that makes it perfectly clear as to the condition and time and the persons who are to be appointed extra members of the panel.
The appointment under sub-section (4) must be made either by the railway tribunal on the application of either of the parties—
They are not bound to yield to that application. They could refuse it, and if they do the matter appears to end. But then there is an alternative power given to the Minister, and whether he is to exercise it when the tribunal refuses to exercise it I do not know. It is left rather vague, and that is another reason why I say this whole Section 17 will in my opinion require very drastic alterations to make it work at all.
Carried to extremes the railway tribunal might veto every application.
Yes, but the section contemplates if they do the Minister can come forward then and over-rule it.
That is not clear in the section.
I rose a while ago in some doubt, and after the Minister's reply my doubt is not dispelled. Supposing a general application is made to revise and recast the whole railway classification, there would be, as far as I can see, a claim made to the railway tribunal, and there would be quite a field day deciding who are to be the additional members to deal with this question. Regardful as I am for agriculture, the most that could be got additional is one in the interests of agriculture and one in the interests of the railways and canals, and, especially after what An Cathaoirleach has said, it looks as if the people who will really thrive upon this are the lawyers, because I can see nothing more fruitful than the point that would be raised. I am rather confirmed in that view by the views of An Cathaoirleach, who is experienced in the tactics of the profession.
As a disinterested party I would strongly recommend the Minister to exclude this matter altogether. I do not see what the additional panel is for; they have not got it in England.
This section is largely scissors and paste. Surely it would be better in all these cases where you seem groping in the dark to make the thing as general as possible, of course without doing injustice, and to trust to these three members of the railway tribunal, and to call in an assessor when required for those various interests. You give these additional members voting power, and there, I think, the various sectional interests should be alert. That is why I am alert to see that agriculture is not overshadowed or overlapped by all these other interests represented.
It is obvious that something will have to be put in, if these things remain, to provide that these gentlemen, when acting in the event of a vacancy amongst the standing members either from death or illness, shall not be liable to the provisions of Clause 16, which compels them to get rid of their shares before they begin to operate. There is no provision for that at all in this section.
It is evident this matter will have to be gone into very carefully. If it was allowed to stand over now it could be taken on the Report Stage. The principle of bringing in assessors in preference to additional members would leave greater flexibility under the Act.
I would like to support the views expressed by many Senators on this matter, that as far as possible the partisan nature of this tribunal should be eliminated. I think the Minister himself has given us an assurance that that was in the mind of the Executive, that the members of the tribunal, though designated commercial and railwaymen, would not exactly be commercial and railwaymen in the ordinary sense, but men whose qualifications showed that they were competent to deal with matters involving abstruse questions of that sort. If that is in the mind of the Executive, and is endorsed by the House, why then go back to it here by reintroducing, by way of strengthening the tribunal, a sectional element of three? You have invested your tribunal with a judicial character, and given it judicial functions; why, then, introduce a clause here getting back to the old evil of bringing in members to the tribunal from a panel constituted and made up by members who represent distinctive organisations in the community, and who are there to give their views on their own particular interest and their own particular organisations? That is the very thing we are trying to eliminate from the tribunal, and now we seem to be introducing that again, or giving facilities for bringing back that very undesirable element to the tribunal.
I suggest to the House that they should go a little slow in the process of eliminating or else they may succeed in eliminating the tribunal altogether. We have already carried an amendment to give the Governmentcarte blanche as to whom they shall appoint on the standing tribunal. In all probability the first tribunal will be in accordance with the principles outlined in this Bill. Have we any guarantee that future Governments will not make purely political appointments to the tribunal? Men may be appointed to it for their political organising powers and for their vote-catching propensities without any regard to the duties that they are called upon to perform. I do not know whether the House realises the meaning of the amendment. At all events, it is carried now. I think it would be very desirable if there was provision which might at all events ensure that there would be somebody on the tribunal who would be able to speak with expert knowledge of one or other branches of the functions that the tribunal is called upon to perform. I do not know that this is such a terribly complicated provision as is made out. It is possible, of course, that in the general consideration of the classification of rates and so forth that all interests will become more or less involved at one time, but in circumstances of that kind I think the proper procedure would be for the panel to meet. From its previous proceedings it will be able to say who might best be able to represent the whole panel, and it would agree to take representatives from the other panel and put them forward before the tribunal, while, of course, every section will have a right to come in and appear by counsel before the tribunal. But I would urge that those panels be not eliminated, particularly in view of what we have already done in regard to the standing tribunal.
I agree with what is said with regard to the rather complicated arrangement under sub-section (4), and for myself I think it would be much better if instead of application being made to the railway tribunal the Minister himself had power to deal with this matter. If you had that you would have the Minister, who is responsible to both Houses, and he is exposed if he deals improperly or unfairly with the matter to the criticism of the Press in this country and also to the Press at the other side. I think that would be more satisfactory. Perhaps it does not commend itself to members of the Seanad in the same way. I know there is a feeling that they do not wish to put too much power into the hands of the Minister, but it must be remembered that if the Minister has that power, and if you put him in that position, he has got a responsibility to the public, and to maintain the position which he holds. I myself would rather see that than that an application be made to the railway tribunal. I hope I have made myself clear. I am not merely thinking of the present time when we are reconstructing our affairs, but I am thinking of the future. I myself have had a little experience, and I would much rather see the responsibility put upon the Minister chosen by the people than the application being dealt with by the tribunal.
I agree with a great deal of what has been said by Senator O'Farrell. He was speaking as if to an amendment, but I have heard no amendment proposed on this section at all.
I was expecting that out of this discussion would evolve an amendment, but it has not appeared yet.
I think what has evolved is that everybody who has spoken expressed the view that they did not understand sub-section (4), and the gist of the discussion seems to me to ask the Minister to look into it and see if he could make it clear how this was going to operate.
In the last two lines it provides that the gentleman is to be selected on account of his special knowledge of the subjects that may arise for which he is being selected.
There are quite a large number of points that one could pick out. They would make a great deal of difficulty, but I do not think we will solve them by discussing the question now. Taking one point that Senator O'Farrell referred to, I looked at the construction of the panel and the balancing of these twelve members — three are commercial men, two labour, two passengers, four agriculture, and one fisheries. I look at that as a sort of panel to arrive at a certain decision, but it now turns out that the tribunal are to pick out of those twelve one individual whenever the tribunal begins to act in the particular manner. The four agriculturalists will probably represent different sections of the industry. There may be one for live stock, one for tillage, and so on, and one will be chosen for one particular case. Therefore Senator O'Farrell's idea that this panel should act as a body and have some views in the selection of these individuals who represent them is the only way I can possibly see that the panel as a body could be of the slightest use at all. You have matters in regard to agriculture changing from questions connected with live stock to questions connected with tillage, and in commerce you may have matters connected with imports and matters connected with manufacture, and how are you to change them?
I do not know how the section works. I was hoping that the result of this discussion would be that the Minister would explain the matter and tell us how it would really work. I think we ought to be slow to cut things out, and I certainly agree we ought not be in a hurry to cut out all the panels. Our object is to see that at the proper time they should come to have the influence they ought to have.
We have cut out sub-section (3) of Section 14. If we left in sub-section (3) in the case of an agricultural matter the five who would have dealt with it would be one lawyer, one railway representative, one commercial man, one agricultural man and one railway or canal representative. That means that you would have two railway people. But we have taken out sub-section (3). Therefore, we cannot in the least argue that there are going to be two railway men. The Minister was quite right in saying we ought not to be in a hurry. Our action has entirely destroyed the argument which we could bring against sub-section (4) that there would be two railway people always and only one agriculturist. That cannot now be argued. I do not see that we will get any further with this discussion, but I had hoped that we might get some statement as to what the Minister thinks ought to be done in view of the discussion.
In view of the hour, I suggest that we should adjourn for luncheon and some amendment may emerge in the meantime.
Sitting suspended until 2.45 p.m.
The Committee resumed at 2.45 p.m.
During the interval I had an opportunity of looking into the British Act, and I find that these provisions in essence — the provisions as to the panel and the additional members—are in the British Acts. Even then I personally do not see how in practice the section, as it now stands, can work. To put the matter in order I move to delete sub-sections 4, 5 and 6 and substitute the following:—"The railway tribunal, on application by any of the parties or otherwise, may call in such members of the panels as they think fit who possess technical knowledge of the case, to act as assessors in any particular case or proceedings under Part III. of the Act." The form of words is probably imperfect, but if the principle is accepted the wording can be altered. I will require a definition of what an assessor is. I do not legally know what an assessor is. I contemplate in this case an assessor as some person with technical knowledge who will sit with the members of the tribunal while the proceedings are going on and have the right of asking questions subject to the ordinary conduct of debate. Then, when the court is closed, he will also continue to confer with the members of the tribunal, but will have no voting power in such decision as may ultimately be reached.
I have an amendment to propose to sub-section (3).
I beg to move:—
Section 17, sub-section (3). To delete all after the words "general panel" in line 39.
The necessity for the amendment may not be as great as it was in the Bill as originally drafted, but my purpose in submitting the amendment was that the stereotyped addition of a railway man or a commercial man should not be allowed to persist under the new arrangement, whereby three members, so to speak, will have no label. I think the necessity for "according to the qualification of the ordinary member in question" is quite unnecessary, because apparently he will not be qualified on any particular basis. I think, then, that there is no reason why, in the case of the subsequent member appointed from the panel for a temporary vacancy, it should not be left to the Minister to decide as regards his qualification without setting it out in any particular fashion. Under the old arrangement, as the Bill was introduced, the man should either be a lawyer, a railwayman or a commercial man. It is to prevent that, that I wish to have this amendment accepted. I do not think that the ordinary member ought to have any particular qualifications except that he is a person qualified to sit upon a tribunal. What was at the back of the mind of the Minister, I take it, was that any new member to be appointed to the tribunal from the ordinary members should have a tag to his name, either as a commercial or as a railway man. This amendment is for the purpose of securing that any member of the community who, in the opinion of the Government or of the Minister, is entitled to sit on such tribunal, can be appointed a temporary member.
Is your amendment to omit the words after "general panel" or after the word "place"?
I think it would be better after the word "place."
I would urge very strongly that this amendment should not be accepted. It is proceeding further on the lines already travelled in deleting sub-section 3 of Section 14. It may seem to be consequential upon the omission of that sub-section, but it is not really so. Although you have now decided that the two members, other than the chairman, of the tribunal shall not be selected by reason of certain qualifications set out in the sub-section omitted, still when any one of these persons is appointed he will be a person of experience in some of the many interests alluded to in the general panel or in the railway and canal panel. If a man of that sort has temporarily to vacate his position, through illness or being out of the country, it is quite natural to expect that the person appointed to replace him shall be a man of similar interests or qualifications. I would urge, as I had intended to urge previously on this point of omission, that the tribunal does not represent anybody. There is no question of representatives on the tribunal. The tribunal is to be, as far as possible, a judicial body. All that was said previously was, "Shall be a person of experience in commercial affairs," not a person representative of commercial interests. These are totally different things. I would urge strongly that the words should not be omitted, although the Seanad has omitted sub-section 3 of Section 14. The interests are so many as set out in (a) and (b) of sub-section 1 of Section 17 that there is a very wide choice. There is no tying the hands of the Governor-General or the Executive Council in asking them to make their choice from these people. As they stand, the words are very valuable, and I would urge very strongly that they should not be omitted.
In addition to the objections mentioned by the Minister there is also the fact that this Amendment would mean the setting up of a third panel, from which the chairman would be selected. Already there is objection to the two panels. This means the setting up of a third. For that reason I suggest that the amendment should not be pressed. It is really making the amendment that we have already carried more serious, because it again gives power to the Executive Council to appoint a person as chairman without any particular qualifications, with the possibility that the position of chairman may be the reward of political services rendered.
The principle that we are contending against all the time is the baneful one of having any member of this tribunal biassed in a partisan or sectional way. Members of the panel are distinctly selected because of their expert knowledge of some particular branch of industry or commerce, and when you confine the Governor-General, under the advice of the Executive Council, to selecting from the panel to fill a vacancy on the tribunal, you at once get back to this baneful principle again. The Governor-General and the Executive Council are limited in their choice to this panel. Anyone from this panel would be a man representing a distinctive industry or branch of commerce and will not be the sort of man that ought to be selected — a man of wide general experience. All the men on the panels cannot claim to have that. They are not selected and put on the panels because they have that, but because they have a special distinctive knowledge of some particular branch. Outside of that, there is no guarantee that they have any particular knowledge at all. I think this is the easiest way out of the difficulty, although it may not meet the objections of every Senator. In the selection of a member to fill a vacancy, the Governor-General and the Government should be allowed just the same choice as they are allowed in the first instance, and not be confined to the panel. I would suggest that the sub-section should read: "in the case of either of the ordinary members the Governor-General on the advice of the Executive Council may appoint a person to act in his place." He need not necessarily be from the panel, and we have the assurance given through the Minister that such a person will be a person of wide general experience.
I am sorry I do not find myself in agreement with Senator Bennett on this point. We generally do find ourselves in agreement. The Seanad, I think, would be better advised to allow the section to remain as it stands. They have already amended Section 14, and have taken out a very important sub-section, sub-section 3. I am only giving my own view, but it seems to me that it would have been very advisable to have persons of commercial or railway experience upon this panel. However, the Seanad, in the exercise of its discretion, has thrown that out. I do not think it would be wise to leave out the words which it is proposed to omit and which gives the Ministry certain directions in the matter. I do not think it would be any improvement to leave them out. On the contrary, by retaining them, we give the Ministry certain directions and, on the whole, those directions are useful ones. We ought to give them a certain line to follow. This panel, I think, should be constituted from people who know something about what they are entrusted to decide. On the whole, in view of the great care with which this Bill has been drafted in all its details, I think the Seanad would be better advised to allow the words to stand.
I think Senator Bennett has not looked at the first part of this sub-section. It would have been clearer if the word "temporary" had been put in front of the word "vacancy." Later on it says "pending the filling up of such vacancies." That shows that it is only a temporary matter that is being dealt with. The moment it becomes permanent what the Seanad has already decided comes into operation. A permanent member will be appointed the moment the vacancy becomes permanent. Therefore the Executive Council must appoint somebody under Section 14 without any restriction. It would seem the wise thing, and I think in view of what the Minister has said, it would be wrong to reject his advice.
There is a panel of sixteen persons selected from various lines of life, and undoubtedly they will be selected as being good men. To go outside that panel in the filling of a temporary vacancy would be wrong. In dealing with a temporary matter of this sort I cannot see why the Executive should be forced to put on a man who had nothing whatever to do with the general panels. I would be inclined to take the Minister's advice and leave the section as it is and let the temporary vacancies be filled by men specially selected.
I must have been misinterpreted. My suggestion was that the men for temporary vacancies would be selected from the panels and not from outside. What I would like is that the Governor-General could appoint a member from the panels. Senator O'Farrell suggested that the appointment of the chairman would create a difficulty. The chairman is not mentioned in the amendment at all. He is appointed under another category. I want to ensure that in the selection of men from the panel what we objected to this morning should not be continued. We objected to a man being labelled a lawyer, a railway man or a commercial man. I want to present a condition of things that to my mind is stereotyped by the section. This amendment proposes to delete the words "according to the qualification of the ordinary member in question." Ordinary members are to be selected, I take it, because of their wide knowledge and because of their capacity for sifting evidence, and acting in a judicial capacity. After all, I take it that those selected by the Ministry will be men of wide knowledge. It is not because a man is a commercial man, a railway man, a farmer or a labourer that he is not a man of diversified views. If not, he has no reason to be on the panel at all. When one of the members of the panel is ill, what I suggest is that a member selected may be a person outside the panel. It may be that when the railways are electrified he will be an electrician, and I want to secure freedom for the Government to select a man in his place from the panel, if necessary. I do not think anything that has been urged would make me change my views or withdraw the amendment.
I may be wrong, but as far as I can see as this section stands there is no qualification for the person to be appointed as temporary chairman.
I am not alluding to him. I am only dealing with ordinary panel members and I want to have them taken from the panel. In the first instance it is objectionable that the chairman can be brought from anywhere.
I do not know if I quite understood the Senator to say that it is objectionable that the chairman might be brought from anywhere. In order to meet that object he proposes that the additional members might be brought from anywhere.
I am not alluding to the chairman; I am dealing with sub-section (b), dealing with the filling of ordinary vacancies.
I am quite clear as to the purpose of the amendment, but it was while the Senator was moving the amendment I though I caught some words used by the Senator.
I think that I am responsible.
I thought I caught the phrase that it was objectionable that the temporary chairman should be drawn from anywhere.
I never said anything of the kind.
I withdraw. I misinterpreted the Senator's remark. The purpose of the amendment is to leave out all the words after "general panel" in line 39, and that the Executive Council are left to advise the Governor-General with regard to the man who is to be a member of the panel. Am I to take it that that means he is a member of either panel referred to in Section 17 of the general panel or of the railway and canal panel? I am speaking now rather in answer to Senator O'Farrell's objection, as he seemed to think a third panel as distinct from panels (a) and (b) would have to be appointed. The Senator himself told us that he meant a member of either panel and simply to omit that the selection is to be according to the qualification of the ordinary member in question. I urge the Seanad not to omit these words as I previously urged against the omission of sub-section 3 of Section 14. I thought I had detected signs of repentance amongst Senators for omitting sub-section 3. I thought it well to stress that so that I might now get Senators' minds into a proper state to accept an amendment later on and reinstate sub-section 3 of Section 14. I think it would be very desirable to do so. My remarks are really consequential upon that amendment and I would like to think that I would be able to get the Seanad to accept that view. I think it is advisable that definite instructions to the Executive Council should be laid down in the Bill with regard to the qualifications of the two members of the tribunal and with regard to temporary appointments to temporary vacancies.
Are we to understand the amendment moved by Senator Bennett will leave the section as it was except that the man to be appointed need have no qualifications? In other words, he may be the most unsuitable man on either panel. He says the effect of this amendment would be that the appointment would be made from a general panel or from the railway and canal panel. He objects to the last words of the sub-section "according to the qualification of the ordinary member in question," which has for its object to see that the man shall have some qualification for the job. I do not think we should accept the amendment on that ground. I think the ordinary man will understand it to mean that he is to be selected from a panel. There is nothing following to state that that panel shall be the general panel or the railway and canal panel. I think a consequential amendment would be required to explain that.
My original amendment was to delete all words after the word "general panel" in line 39, and the Cathaoirleach suggested that I should have deleted all words after "place." If that is accepted I am satisfied.
Is this an amended amendment?
The area of choice for the Government is confined to two panels, and on these panels you have men appointed for their specific knowledge of commerce, industry, labour, railway passengers, agriculture, fisheries, railways and canals. Obviously when the Government come to fill a vacancy, confined as they are to members of the panel, they are up against this, that all those interests represented on the panel feel that their particular interest is dominant. The Government will find themselves in this position, that no matter how well disposed they may be when they make a selection there will be a feeling that one particular interest is primarily represented to the exclusion of the others. The Government will be in the position that the other interests will have more or less of a grievance, and they will want to know why a representative of a particular interest was selected. As was stated, it may be that by eliminating the panel altogether you eliminate the best men. It may be that it will be recognised that on these panels there are one or two men of outstanding general experience, apart from the particular interest they represent. It would be a difficult thing to exclude the Governor-General's choice of such a man. Nobody, I think, suggests doing away with the panels entirely. My suggestion is that the Governor-General, on the advice of the Executive Council, should be at liberty to appoint a person to fill the vacancy. Such a person might or might not be on the panel.
And leave out all about a person so appointed.
He may or he may not be on the panel.
Are you proposing that as an amendment?
The Minister for Industry and Commerce is the first Minister to come to this House and ask that the Seanad should apply some rules to his conduct. Unlike other Ministers, he thinks it important that he should have some instructions from the Seanad as to what he is to do, and I agree with that.
Of course my remarks apply equally to my successor. I am not so confident that I require all these checks upon myself. With regard to Senator Guinness's proposal, I remember reading somewhere, I believe it was in "Alice in Wonderland," where certain intricate machinery in a watch was being lubricated; I think butter was put into the works, and when it was pointed out that it was not suitable, the answer was given. "Yes, but it is the best butter." Senator Guinness's amendment would be to the same effect — let us have something that might be a lubricant, but do not insist on qualifications, and that is proposed as a serious amendment.
Make it the second panel then.
The proposal, then, is to omit the words "according to the qualification of the ordinary member in question."
Amendment put and negatived.
Before I come to Sir John Keane's amendment I wish again to ask Senators when going through these sections to follow their own amendments, and to rise when they realise that the time is reached for them. I have passed over quite unintentionally an amendment by Senator Counihan to the earlier part of this section. I do not know whether he wishes to move it or not.
Yes. Senator Keane rose to get an explanation from the Minister at the time, and the discussion has been carried on since. I move:—
Section 17, sub-section (1), page 11, line 6, to insert after the word "interests" the words "(of whom two shall be representatives of live stock interests)."
My proposal is that two members of the live stock trade should be nominated on this panel. This panel is to be nominated by the Minister for Lands and Agriculture. It is supposed to consist of agriculturists, and as the live stock trade is a most important branch of agriculture I am sure it is not unreasonable to ask for two representatives. We pay the greatest amount of freights to the railway companies, the most remunerative portion of their receipts, but there are other considerations which make us anxious to have these two representatives on this panel. Applications would come before the railway tribunal to get facilities for loading stocks at several of the loading banks. In a good many of the stations the facilities are very bad, indeed, and an ordinary agriculturist would not understand so well about the working of the live stock trade. No matter how well intentioned he would be, he would not be able to have the same interest in the trade, or the same knowledge, as a member who had practical experience of the work. I am sure the Minister will accept that. In discussing it with the Minister for Lands and Agriculture he said: "Why should we ask for two representatives of the live stock industry, as there would be a representation of four agriculturists on the panel, and we might possibly have four." I said I am satisfied to have two, and to have that inserted in the Bill.
Might I ask whether the four persons in this section who are to be appointed after consultation with the Minister for Lands and Agriculture would not represent agricultural interests? The section says: "being representative of agricultural interests"; would that not cover the case of the cattle trade?
You do not quite follow, Senator Esmonde, what the proposal is. It is quite plain that the four persons are to be persons identified with agriculture and the Senator's amendment is to provide that at least two of them should be identified with that particular branch of agriculture, the cattle trade.
That is a point the Senator did not explain. I was not quite sure whether he meant to delete the two members of the fishery industry in favour of agriculture.
It has nothing to do with the fishing industry at all.
I have two objections to this amendment. The first is that live stock is included in agricultural interests, the second is that the representation claimed seems to be out of proportion to the importance of the live stock trade. The Minister for Lands and Agriculture might think otherwise; if so, he will have the controlling voice.
In point of fact there is no farmer who could not claim that he might be described as a person who could look after the live stock interests, even though he is not engaged in the cattle trade. I think the term means very little.
Amendment, by leave, withdrawn.
I move: "To delete sub-sections (4), (5), and (6), and substitute:—"The railway tribunal on application by any parties or otherwise may call in such members of the panels as they think fit, who possess technical knowledge of the case, to act as assessors in any particular case or proceedings under Part III. of this Act." I put forward that amendment first of all on the principle that we want to preserve the judicial aspect of the tribunal. I can conceive no arrangement better calculated to serve that end than this Box and Cox arrangement of determining a case. You bring two people in one case, and in another case you bring in perhaps two other people, and give them practically judicial powers, the power to vote and the other ordinary powers of the tribunal. I do not see how you will get a judicial detachment of mind by an arrangement of that kind. The object of the panel surely would be to give leave to the members of the tribunal to have such technical opinion given them in a difficult case. Of course they will get the technical arguments from counsel and others appearing, and when they are consulting in private the technical knowledge should be provided by the interest affected. That to my mind would be the best way of associating with the tribunal the gentlemen from the panel in the capacity of assessors. Furthermore, how is the tribunal going to meet the case satisfactorily if it is limited to two additional members. If you have a question relating to classification, that cannot be satisfactorily met by bringing in two additional members only. I do not know that that covers the whole range of the public interest on a matter of that kind. If you are going to admit agriculture you are not going to do justice to commerce, and other interests, and in any general question more than one interest could and must always be affected, and only one interest is allowed representation in the capacity of additional members. I submit it would be more business-like, and would generally lead to a more efficient working of the Act, if the tribunal were allowed to call in any number of people from the panel qualified to advise them in the capacity of assessors, and who would be associated with them all the time, except that they will not have the right of voting.
On a point of procedure, may I suggest that this is a very important amendment, and radically affecting the tribunal, and as no previous notice has been given of it, that it should be held over for the Report Stage. This is a technical matter, and as many members of the Seanad have not themselves the advantage of technical knowledge some little time is necessary to enable them to make up their minds.
I am quite satisfied, especially as the House knows my views.
I suggest to the Minister, and to all parties concerned, that we would get on quicker if this whole section would be allowed to stand over for the Report Stage.
Does the amendment proposed by Senator Sir John Keane take the place of the whole section?
Not at all; only sub-sections (4) and (6) of Section 17. It does not necessarily interfere with sub-section (5).
Sub-section (6) makes provision for additional members.
It would not get rid of sub-section (6) if you only alter it to "any person appointed under this section to be an assessor." You would have to define the functions of the assessor in a new clause. However, that is a matter for the Report Stage.
I think you would have to define what is meant by an assessor. It may have many meanings according to the thing contemplated.
The word "assessor" has a legal meaning. It is quite a common thing in practice. The Court of Admiralty, for example, have assessors, and under the Lands Clauses Act an assessor may be called in. The position of the assessor is well recognised, I mean in legal phraseology.
May I point out that this matter may have to be handled with some care, for I take it these assessors will be paid, and, therefore, it may mean we will have to have a new Money Resolution on which to pass an amendment.
I do not think a new Money Resolution would be required, because the panel members are to be paid.
As I understand, these assessors are not to be panel members.
If I might say a word on the general proposition, even if this amendment were left over for Report, I am very glad that this discussion has taken place, for I find a section subjected to a certain amount of criticism, and that it requires drastic revision, but the revision now proposed would make confusion worse confounded. This proposal is to take the place of sub-sections (4), (5) and (6).
No, only sub-sections (4) and (6).
I had (5) in, but as advised by you (5) stands.
Yes, (5) has reference only to the temporary chairman, or temporary member of the railway tribunal. These will require remuneration. That remuneration would disappear if sub-section (5) were omitted. That removes one objection I had. The whole proposal leaves the matter very vague and very loose—that the railway tribunal may call in additional members without limit. You may have a panel, or additional assessors to the number of 5 or 500. It is not likely you will have them all.
You cannot exceed the number of the panel. The panel is limited to 16 in all.
I did not know we were confined to the panel.
The amendment says "may call on such members of the panel."
You would then have a number limited to sixteen. In a House which has apparently made up its mind that a conflict of interests is to be avoided, you are going to have all the different interests brought in— agriculture, fisheries, etc. All may be brought in as assessors, and it is urged in favour of the assessors, as opposed to making them definitely members of the tribunal, that they will be in a better position to give information from within than they might as expert witnesses attending the tribunal. It has been thought that men who have interests and who are desirous of attending, might give expert evidence, and it was thought better to bring in two men, one representing the railway users, if not a particular interest, and the other representing the railway, not the user, but having some advertence to those interests. There would be that balance and that would give these men responsibility and increase the value of this advice by putting upon them the onus of voting to help to decide the question. A lot of objections have been raised; one raised by An Cathaoirleach would mean, if it were possible to suggest that it could come from such a source, that it has been raised for difficulty's sake; that a technical matter may arise, and it was suggested you may appoint a man without knowing what the technical matter is likely to be. That, of course, will not arise. An application will be made, some application involving a technical difficulty. That difficulty will be considered, and having considered the difficulty, the appointment will be made. It was represented that this was a clumsy and amateurish piece of work coming from the Dáil. This section has been taken from the British Railway Act of 1921, and in England no difficulty has been found in carrying out the provisions. It is taken line for line, and almost word for word, with a few necessary changes.
Can the Minister say that it has ever been enforced? I am informed it has not, that it has never been found possible to enforce it.
I understood it was operative.
It is operative, but has it been ever put into practice?
I understood it was. Certain difficulties may arise, but I do not want to have it represented that this is a provision springing from the brain of any official in my Department or any Government Department, and that it is an entirely new and novel procedure. It is entirely taken from this Act, and, as I understood, it had worked. Sub-section 4 is perfectly simple. Either on application made by any of the parties or otherwise, or if the Minister thinks it expedient, there shall be appointed in a very definite way by the Governor-General on the advice of the Executive Council from the panel two additional members of the tribunal for a particular purpose. I do not think anything could be more simple. The Executive Council, or rather the Governor-General appoints, on the advice of the Executive Council. That advice can be given if the Minister thinks it expedient or if the Railway Company request it or on application made or without application made. The question has been raised that the Minister may think it expedient in defiance of the railway tribunal. There is nothing here to hold the Minister from thinking it expedient. I take it he has that power. The Minister may advert to the fact that the application has been made and has been refused. and may override the refusal and request the Executive Council to advise the Governor-General to appoint members. I consider the section a very clear one. It has worked, so far, in practice in England. It is taken definitely from a serious piece of legislation in another House by people who have greater railway interests than we have. It is urged that it should be left open until the Report Stage, but unless some indication is given to me of what is desired I do not think it can be accepted. The question has been raised as to whether or not Section 16 requires members of the railway tribunal not to hold shares in any transit company and whether that is an obligation on temporary members. We have been advised that a standing member could not be held to be a temporary appointee. That is a point that can be made quite clear on Report Stage.
I am very anxious that this should be made as clear as possible, and as your draft stands at present, I am quite satisfied that the words, "subject to the provisions of this part of this Act," would make Section 16 apply to these temporary members, and they would have to get rid of their shares.
That is a very definite objection, and that can be removed by a definite amendment on the Report Stage. The other point is more vague and more indefinite, and as far as I am concerned I could not make any move towards amending sub-section (4) in the way suggested, because I think it would not improve the section.
I had better put the amendment.
Are you not leaving it over to the Report Stage?
If the Seanad prefers, I would leave it to a decision of the Seanad, or defer it to the Report Stage.
I would rather leave it over till the Report Stage, but I am afraid I cannot do so without the permission of the House.
I had better put the amendment, and you can renew it on the Report Stage if you wish.
As the amendment is being put, I wish again to emphasise it is a negation of the proper functions of a judicial tribunal to have members going in and out in a particular case and having the full powers of voting. I say that these members who have the power of voting should not be allowed to have any shares in any undertaking of the kind or to have any financial interest in a matter on which they vote. I understand that is what is contemplated when you say you shall not force additional members to get rid of any interest they may hold in the company. For all these reasons I think it is eminently reasonable that the tribunal should be a strictly judicial one and that no additional members should be appointed.
In answer to that it may be a slight negation from the point of view of the ordinary judicial tribunal that members may go in and out on separate points, but there is a bigger negation that seems to be implied by Senator Sir John Keane's interpretation of the functions of the additional members of the tribunal. The Senator seems to regard them, irrespective of anything put before them, voting on their sectional interests only. We intend to get much more responsible men than people who will act in that way.
Are you going to take a vote on the amendment now, sir? The Minister has said we are throwing aspersions on the Dáil, but really all that has happened here is to show that we are not big enough to swallow this and see how it is going to act. I am still in that stage, and I do see a great difficulty in the working of this section. You select a man because he is representing a certain interest and you make him judge of cases concerned with that particular interest and put him on the bench, and yet he is to forget all about that interest and to act as if he had nothing to do with it. Personally I believe we would be far better off in the hands of the tribunal of three. The only value of the technical knowledge of an additional member would be to bring the whole of his technical knowledge before the tribunal, and how he could do that and sit on the bench I am at a loss to understand. If we could get a little more time to think it over we would be in a much better position to deal with it.
The section as it stands says that the person selected shall be conversant with and have knowledge of the technical matter that may arise. I think you will find it almost impossible to segregate the interests involved in certain questions that will come before this tribunal. It will be very hard to discover and define a dividing line between the commercial and the industrial aspects of the question and the agricultural aspects, between the manufacturing aspect and the labour aspect, and it will be a matter then of giving some predominant advantage to one particular party on a question of that sort where it is very hard to discover which interest is most deeply involved. Whereas at the outset one interest may seem to be more deeply involved than another, in the ultimate unravelling of it, we may find that another will entirely dominate the situation. Still you have one man appointed, and he must sit there when the question has largely got out of his hands from his point of view. Another thing is that you have no manufacturing interest represented on the panel at all. You have a commercial and industrial interest, which is nearest to the manufacturing interest, but I think the manufacturing interest is worthy of consideration by itself. On the panel I find that all interests representing commerce, industry, labour and agriculture are provided for, and manufacturers in this country have no representation at all.
Would you not think they came within the category of "industrial"?
That is the nearest to it.
Amendment put and declared lost.
The point regarding shares might stand over for report.
Question—"That Section 17 stand part of the Bill"—put and agreed to.
(1)—For the purposes of this Act the railway tribunal shall have full power and jurisdiction to hear and determine all matters, whether of law or fact, which shall be duly brought before them under this Act, and shall not be subject to be restrained in the execution of their powers under this Act by the order of any other court, nor shall any proceedings before them be removed bycertiorari into any other court.
I move to delete the sub-section. In my opinion this sub-section is inconsistent with Section 22 of the Bill. The proposal as it now stands is that the railway tribunal shall have full powers above the law, and that there shall be no appeal either on question of law or fact from its decision. Section 22 seems to say something to the contrary. I do not know whether legal men will adopt that way of reading these two sections, but to the ordinary laymen it seems that they are contrary to one another.
There is no contradiction between them. This Section 18 gives the railway tribunal power and jurisdiction to hear and determine all cases. It does not say they would not be subject to appeal, but it goes on to say that in exercising the powers conferred upon them they cannot be restrained by another court nor their proceedings removed bycertiorari. But later on you will see that the section says that their decisions on questions of law are capable of being reviewed by the court of appeal. That is not inconsistent—it is a little complicated, but there is no inconsistency.
So long as I have the assurance that there is an appeal on a question of law I am quite satisfied.
I would like to call the attention on this matter to Section 22, which says: "No appeal shall lie from any order made by the railway tribunal in exercise of any jurisdiction conferred on them by Part I of this Act."
I was dealing with their decisions under Part 3, on questions of law. Senator O'Farrell was right in saying there is no appeal under Part I, but under Part III there is an appeal provided on questions of law.
My contention is that in questions of law, whether with regard to Part 3 or Part I, there should be an appeal.
That is not required, because Section 22 excludes an appeal in cases under Part I.
After all, the right of appeal is one of the great safeguards of judicial efficiency. It ensures respect for judicial decisions, and the confidence of the ordinary citizen in the administration of the law. If we set aside this appeal and this safeguard I am afraid we will be setting a very dangerous precedent. I think it is only right that nobody except the highest court in the land should be exempt from appeal. The orders of every court should be restrained by that of the highest court in the land. This railway tribunal, prior to the deletion of sub-section (3) of Section 14, which might be reinstated, was to be composed of one legal gentleman, the Chairman and two non-legal gentlemen. The decision of the court was to be by a majority, and the minority is not to express a reason for dissenting. It is possible that the non-legal representatives on that tribunal might overrule the legal representative upon any of the matters in Part I of this Bill. Nevertheless, on the question of law there is to be no appeal from that decision. I quite admit there should be no appeal on a question of fact, but on a question of law, I certainly think, they should not be turned into a supreme court as they are in respect of this Bill. After all, their work in respect of amalgamation is really private Bill legislation work. It is extremely important work, and has the effect of legislation, and I suggest it is a very serious proposition to make that the Supreme Court, even in a question of law, are to be deprived of reviewing their judgment. There should be an appeal to the Supreme Court in order to remedy any abuse or the use of excessive powers or branch of the law which might be permitted by these non-legal representatives on this tribunal.
The Senator has made a very eloquent speech on Section 22, but he was supposed to be speaking on sub-section (1) of Section 18. That sub-section says that the railway tribunal shall have full power and jurisdiction to hear and determine all matters, whether of law or fact, etc., and it is proposed seriously by the Senator to delete that sub-section, that is to say, to delete the railway tribunal. That is the full effect of it.
I think the Minister is right. Senator O'Farrell's amendment would be quite in order on Section 22, but if he moves it now it would deprive the tribunal of any legal status whatever.
I had an amendment to Section 22, and it is quite possible that they may have got mixed up.
You will be quite safe in waiting until we have come to Section 22. I take it that you are not now proposing any amendment to Section 18.
Question—"That Section 18 stand part of the Bill"—put and agreed to.
SECTION 19 (PROCEDURE AND FEES).
I beg to move, immediately before Sub-section (2) to insert a new sub-section as follows:—
"(2) The railway tribunal or person holding an inquiry for the purposes of Part I. of this Act shall take into consideration all objections to an amalgamation, absorption or preliminary scheme, or in respect of the subject matter of the inquiry, which may have been lodged by any person or class or body of persons within the prescribed time and in the prescribed manner and, where any objections have been so lodged, shall hear any objectors."
The powers to be given to the tribunal in respect of the amalgamation and absorption schemes will be very great. They constitute a considerable interference with private interests, and therefore every person concerned—share-holders whose financial interests are directly affected by the Bill, railway employees who are directly mentioned in the Bill (Sections 4 (d) and (e) and 6 (e) and (f)—should have a right to come to the tribunal to protect their position. Moreover, Section 9 (3) of the Bill provides that the schemes, when confirmed and settled by the tribunal, should have the effect of an Act of the Oireachtas, and therefore it is of the utmost importance that everything should be done correctly, and that every interest concerned should be entitled to appear before the tribunal, before the rights it now owns, or which are given to it or preserved by the Bill, are precluded. The freest access to the railways amalgamation tribunal was afforded under the British Railways Act, and this proposed new sub-section is a reproduction of Section 9 (6) of the British Railways Act. The sub-section in the British Railways Act worked very well in practice, and gave great satisfaction to all parties. It will be observed that Section 65 (2) limits the classes of persons who may appear before the tribunal, and although Section 65 is undoubtedly meant to refer to appearances in relation to questions affecting rates and charges, its terms do in fact apply to matters coming within the scope of Part I. of the Act.
Is the Senator allowed to read from a brief, as I respectfully suggest Senator Farren is doing?
With all respect I submit the same objection has not been made to other members of the House when they read their speeches.
It is an objection that is capable of being raised, but the Chairman has always some difficulty in seeing it.
I did not object, and I did not see objection taken in other cases. I have a distinct recollection that other members of this House have repeatedly done the same thing, and I have never seen objection raised. It all depends upon the class of member who reads his speech. This is a very technical matter that we are dealing with here, and people without technical knowledge on the subject have to be very careful of what they are going to say. I think it is unfair to take objection to a person reading what he has committed to paper on these matters. However, I will read no more, but I will take very good care no other Senator will, either. The substance of my amendment is that under Part I of the Bill when the tribunal is considering questions arising out of amalgamation or absorption persons who are concerned shall get the opportunity of appearing and stating their case, and I hope the Minister will accept my amendment to that effect.
I do not know whether the Senator has read sub-section (d) of Section 19, because I think that meets the purpose of the amendment: "the right of audience before the tribunal provided that any party shall be entitled to be heard in person or by a representative in the regular employment of the party duly authorised in writing, or by counsel or solicitor." I do not think the amendment is necessary.
Sub-section (d) seems to me to be somewhat vague. There is a provision providing that anybody is entitled to be present. Who is to decide as to the wording of the provision?
If this amendment was passed would it not be tantamount to restoring an amendment which the Seanad rejected earlier in the day? Would not the question of the arrangement between stockholders be liable to review, and to that extent I ask is the amendment in order if it would have the effect of restoring an amendment which the Seanad previously rejected?
As it stands at present I think it is open to that objection.
Might we have an expression of opinion as to whether the point made by Senator Sir T. Esmonde is not right? Does not Section 19 (d) cover the point made by the mover of the amendment?
The section says: "The railway tribunal may, with the approval of the Minister and the Chief Justice, make general rules governing their procedure and practice." and so on. You will observe it says "may make rules."
They cannot make any rule which would prevent a party from being heard in person. That is what I take sub-section (d) to mean.
The obligation is cast upon the tribunal to make rules. In that case the word "may" means "shall." The obligation is there. They must make the rules. I think that would be the effect of the section as it stands. Where it says that they are to make rules it gives in (d) "the right of audience before the tribunal" provided always that any party shall be entitled to be heard in person. There is to be a right of audience. That is to say, whether they make rules or not the right of audience is there.
If you would take sub-section (1) and read the last two lines, and read it in connection with the sub-clause (d), does it not show that it is not compulsory upon the tribunal to make rules providing for the right of audience, but they may make them?
Neither is it necessary or compulsory that they should make rules providing for the number to form a quorum, but they are all absolutely necessary rules, and they are things which must be provided for. It has been put up to me that the word "may" in this connection has the effect of "shall."
This, I take it, is a case where "may" means "shall." If you look up the sub-section (d), which reads "the right of audience before the tribunal, provided that any party shall be entitled to be heard in person or by a representative in the regular employment of the party duly authorised in writing or by counsel or by solicitor" you will find the meaning of that is that they may make rules. That is not a matter of what they put in their rules. They can put nothing in their rules that will deprive a party of their rights to be heard in person. That is limited in respect to the things they are entitled to go into. But it does not extend the powers of jurisdiction of the tribunal to any of the matters over which they have not jurisdiction. This section confers the absolute right of the objector to be heard in person.
Would not "providing" be better than "provided"?
No, that would spoil the effect of the whole thing. The object of sub-section (d) is that, amongst the other things which they are to provide, are rules regulating the right of audience, but no rules regulating the right of audience can deprive a party of the right to be heard in person.
In view of your interpretation, which gives all I want to get, I am satisfied to withdraw it.
Amendment, by leave, withdrawn.
I beg to move:
Immediately before sub-section (4) to insert a new sub-section (4) as follows:—
"(4) The proceedings before the railway tribunal shall be officially reported andverbatim reports thereof shall be printed, numbered, published and sold, and may be cited in the like manner as statutory rules are for the time being by law required to be printed, numbered, published and sold, and permitted to be cited.”
A similar amendment to this was moved in the Dáil, and there was a considerable amount of discussion over it. Some concession was given on the part of the Minister that some particular cases, very important cases, would be reported and the evidence printed. I wish to point out that there is a necessity for the business coming before the tribunal to be printed, so as to give the people of the country an opportunity of understanding the manner in which the railway administration in this country is carried out, and to educate and assist the public throughout the country, who are absolutely ignorant of how railway matters are managed.
The amendment does not say who is to pay for this.
I take it, it was the people who would pay for the special cases who would also pay for the complete report.
But that might run into an enormous sum of money. Investigations before these tribunals very often run into a week or two.
I take it that some record has to be taken and kept, and surely the publication of a few extra documents would not cost such an enormous lot. In any case the document has to be printed and a record kept of the proceedings. It would only mean possibly a few hundred copies being printed, and I take it that that would not give a great deal of extra labour or expense.
I am afraid that this would add very considerably to the expense. The Senator thinks 200 copies would be sufficient. I doubt very much if he could state the number interested in the proceedings, but I think the edition would run into a thousand. Now, if it is a case in which public interest is taken, or if there is sufficiently large public interest taken in it, you may be quite certain that the daily papers would report it fully enough. It would be hard to saddle the railway companies with what may amount to a very considerable cost, and for no real purpose.
This amendment, if accepted, would amount to the publication of not merely pivotal decisions, that is, decisions which are of interest, but every decision which is merely a repeat decision of previous cases. All these would have to be reported verbatim, and the tribunal reports printed and sold. There would be no return to the public adequate to the cost. It is noted that this goes far beyond the procedure in the ordinary courts of law. There, decisions are not compulsorily published. I think that matter was taken up by a Committee of the Benchers in the Law Society. The future of law reporting in the country is still undecided. When this amendment was introduced into the Dáil we did meet it by inserting in Section 19 (4) the words, "including reports of such of the cases heard and decided by them as appear to be of permanent or special importance." That was put in to meet this amendment, and I think it goes as far as necessary. There are some reasons why expense should be incurred for the publication of these special cases of importance, but there is no reason why expense should be incurred in publishing reports of all cases.
Amendment put and negatived.
Question—"That Section 19 stand part of the Bill"—put and agreed to.
Question—"That Sections 20 and 21 stand part of the Bill"—put and agreed to.
Section 22, sub-section (1)—No appeal shall lie from any order made by the railway tribunal in exercise of any jurisdiction conferred on them by Part I. of this Act, nor from any decision of the railway tribunal under any other jurisdiction on a question of fact or any question regarding thelocus standi of any person appearing or claiming to be heard before them.
I beg to move:—
To delete all after the word "tribunal" in line 26, to the end of the sub-section."
You wish to put it rather in the affirmative way —an appeal on questions of law shall exist under this Act, and is not limited to Part 3.
I am afraid that I bungled my amendment in this respect, and with the permission of the Seanad, I will withdraw it until the Report Stage.
If I might get an indication from Senator O'Farrell as to what he intends to move on Report, it might help—is it that there shall be an appeal in Part I. in matters of law?
Question—"That Sections 22 and 23 stand part of the Bill"—put and agreed to.
The charges of the amalgamating and absorbed companies in force on the 3rd day of April, 1924, shall remain in force as maximum charges unless and until altered in accordance with this Part of the Act.
I wish to propose:
To delete the section and to substitute the following new section therefor:—
"24.—(1) The charges of the amalgamating and absorbed companies shall be those in force on the first day of January, 1915, plus seventy-five per cent., which charges shall remain in force as maximum charges unless and until altered in accordance with this part of this Act.
(2) In all cases in which through rates are in force between stations in the Saorstát and stations outside the Saorstát, the rate from the frontier station to the inland station shall not be greater than what the company gets as its proportion of the through rate."
I do that for the purpose of putting the onus on the company instead of putting the onus on the trader. The charges as compared with pre-war have increased very much. The onus is put on the trader in this Bill, and the process of ascertaining the standard will be a very expensive proceeding. I submit that that expense should be put on the companies. The charges in a good many cases where the mileage is less than fifty are not very much greater than 75 per cent. or 100 per cent. over pre-war, because of the competition by motor lorries, which has induced the companies to reduce their charges for short distances. Long distance charges are not reduced. One would think in some cases that rates are being put up to prevent any stuff being sent by train. The rates from Dundalk to Cork in 1914 were 20s. a ton. Now they are 52s. 6d. The rate from Dundalk to Skibbereen in 1914 was 32s. 11d.; now it is 92s. 1d. The rates from Dundalk to Enniscorthy in 1914 were 16s. 8d. per ton; now they are 57s. 11d. That is an increase of over 250 per cent. The effect of that is that there is no traffic moved long distances by train. What happens is that the traffic will be sent from Belfast to the nearest place by water and then taken by motor lorry to the purchaser. I think the effect of my amendment is not so much to reduce the revenues of the railways but to put the onus on them to show that they are charging reasonable rates.
The first part of the amendment deals with the question of the charges for rates, and the Senator has fortified his amendments by a statement that the onus is, by the Bill, thrown on the trader to make a case for the reduction. That is not quite accurate. Section 25 deals definitely with that. That means this: There was a general percentage increase in 1920. That increase was based on certain conditions which are no longer operative. The railway tribunal is here given an instruction that it shall, within three months after the passing of the Act, review the present charges with a view to their modification on the basis of that general percentage increase of 1920. Under Section 25 the Government will look to get a considerable decrease in the rates and charges at present operative. So that the onus is not on the trader. This amendment, if accepted, would cut right across the main principle of the Bill, at least one of the main principles, that with reference to the standard revenue. The standard revenue is secured to the proprietors of the undertakings to be amalgamated. This would mean that, whether or not the standard revenue can be guaranteed to them, the rates must come down to a certain point, namely, 75 per cent. on the charges in force on the 1st January, 1915. That is to say, an allowance of 75 per cent. above the pre-control rate, whether or not that would prejudice the standard revenue. The effect would be that it would cut across one of the main principles of the Bill. The onus is not entirely on the traders. The onus is first on the railway tribunal. It is mandatory on the tribunal to revise the rates, taking into consideration the way in which the rates were increased in 1920.
I believe the onus is still on the traders. The tribunal is supposed to revise the rates, but I do not think they will go over every rate at present in existence unless they are induced to do that by the traders. I consider that 75 per cent. over the pre-war rate is a reasonable rate, considering that 75 per cent. is the standard rate in Northern Ireland, and 50 per cent. is the standard rate in England. At present our rate from Dundalk to Hull, which means rail from Dundalk to Greenore, a sea passage from Greenore to Holyhead, and rail from Holyhead to Hull, is 24s. 6d. as against 77s. 6d. from Dundalk to Cork. The thing is absurd, and I will have to take the feelings of the Seanad on the matter.
I think it would be well for the Seanad to reflect on the seriousness of the effect of the amendment. I suggest that it is farcical to be legislating for the setting up of a very important tribunal to deal with very important, difficult and technical questions, and for the Seanad to say that one of the principal pieces of work which that tribunal should do should be done for them by the Seanad, without considering the very serious issues which ought to be considered before a step of that kind is taken. This amendment suggests that the Seanad should do the work of the tribunal, and I suggest that the Seanad is not properly qualified to do it.
I wish to support the amendment. It is quite impossible for manufacturers and traders to continue paying indefinitely railway rates 150 per cent. over pre-war. It is out of the question. Our chief competitors are principally North of Ireland people. How does the Government expect manufacturers and traders to pay a penalty of 75 per cent. over and above the charges in the Six County area? There may be some way of doing it, but I am a long time trying to find it out. Freight is a very large item in the cost of production. I have yet to learn how these freights can be paid and how manufacturers and traders can pay their way. We are quite prepared to give the Minister reasonable time. If he wants three or six months we are willing to give him that time, but we want some definite promise that the railway rates will come down. They are nearly altogether responsible for the high cost of living to-day. They are also responsible for unemployment. Manufacturers could do a great deal more business and increase their output and turn-over if they had any reasonable means of distributing their manufactures, which they have not at present. We do not want to press this amendment unduly if we get some definite promise from the Minister that the whole subject will be looked into immediately. Things cannot go on as they are going. If the Minister tells us that he cannot do anything for the next six months, we will have to put motor traction into operation. We will have to increase and expand motor services, which will mean that business will be taken from the railway companies. At present we are in a very peculiar position. We have to live and we must defend ourselves as best we can. If there is not some definite promise made by the Minister the only way we can defend ourselves is by organising motor services, and that we certainly will do.
I remember when I was in London being asked one day by a harassed tradesman if I could guarantee the stability of the Irish Free State to the extent of £200,000. As my monthly salary at that time was about £30, and I had half of it expended, I felt I could give him the guarantee without feeling that I was giving away much. I am asked now to give an assurance about a reduction of rates. An assurance from me is no good. I have inserted a section in this Bill providing that on a date not later than three months after its passing the railway tribunal shall review the existing charges with a view to the modification of such charges, having regard to the circumstances in which the increased charges were authorised as from the 1st September, 1920. The circumstances were these. A deficit was accruing and had accrued. To make up for that deficit, accruing over a period of 16 months, charges were allowed which in 11 months would make up for these arrears. The basis of the 1920 Percentage Order was that by charges operating for a period of 11 months there should be made up and wiped out arrears accumulating over a period of 15 or 16 months. That is the basis of the present charges. Obviously that is a wrong basis. These charges can no longer continue, and we have given the tribunal in this Bill an order to review the charges, having regard to the circumstances under which the increased charges were authorised on the 1st September, 1920. I think that is considerably better than any assurance I might light-heartedly give here that the rates are going to come down. We put it to the tribunal to see that they do come down. I join with Senator Bagwell in appealing to the Seanad not, in a light-hearted way, to put a limit to the efforts of the tribunal and decide beforehand what should be left to the expert tribunal to decide.
In view of the discussion which has taken place, I desire to withdraw the amendment.
Amendment, by leave, withdrawn.
I beg to move:
(2) In all cases in which through rates are in force between stations in the Saorstát and stations outside the Saorstát, the rate from the frontier station to the inland station shall not be greater than what the company gets as its proportion of the through rate.
This question of through rates is a grievance that the manufacturers have had to contend with for a number of years, as the railways in Ireland carry foreign manufactured goods cheaper than Irish manufactured ones. The object of the amendment is to give a direction to the tribunal that that will be put a stop to. I will give an illustration of it. There is a through rate from Liverpool to Ballinamore for bread stuffs coming through Dundalk of 26s. The Great Northern Railway charge 20s. 8d. from Dundalk to Ballinamore. I do not know what the proportion of the rate is from Liverpool to Dundalk. I take it that it is half. That means that they get 13s. for carrying bread stuffs from Dundalk to Ballinamore, but for bread stuffs manufactured in Dundalk they want 20s. 8d. There are dozens of such rates operating all over the country. They are designed to facilitate traders and manufacturers outside the Saorstát and prevent trade by merchants and manufacturers inside the Saorstát. We hear a great deal about protection. I am a protectionist myself, but this is the very opposite to protection. It is protecting foreign trade as against the home trade. I hope the tribunal will not allow these through rates to operate in that manner. We do not object to through rates, no matter how low they are, provided the railway company will carry the home produce at the same rate as they carry the foreign produce. If the Minister will assure me that the tribunal will give an early decision in this matter of through rates, I am willing to withdraw the amendment.
I do not know if the Seanad, after listening to the mover of the amendment, feels competent to go into this very intricate matter of through rates. I spent some three weeks getting a very intensive education in the Dáil with regard to it, and I do not feel at all competent to have anything to say to it. I feel it is a matter for the expert members of the railway tribunal. I would direct attention to Section 29 (2), which reads:—
The railway tribunal shall have power on any representations made to them, whether by the amalgamated company when submitting the schedules of standard charges proposed to be made, or by any party interested, or by the Minister at any time, to determine the amount which the amalgamated company shall contribute to and receive out of any through rate or fare.
The Senator will have a right to attend as well as anyone else to make his representations.
I would like to ask the Minister if there will be any expense connected with persons making representations under the section referred to.
I think the Minister could hardly answer because that is left to the tribunal. They are to fix the scale of fees and so forth, but in the case of an individual appearing in person the expenses would be practically nil. I do not think the Minister can give an assurance on that, because it is left by the Bill to the tribunal.
This question of through rates is a very old and a very contentious one. These through rates, particularly those operating from across the Channel, are made in England and are sent to the Irish railway companies for acceptance without option. I do not think that is so in the case of the Midland Great Western Railway, but it applies to the others, and the cost of the service from the port to the interior was invariably one-third less than the same service would be to Dublin, Cork or Limerick. We could never find out exactly how these rates were divided, but whatever they were, the Irish manufacturer or merchant was penalised. If there is any preference to be given, citizens of the Saorstát deserve to get it. It should not be given to goods that are imported into the country. Anything that can be given should not be given to the foreigner. It is exceedingly unjust and unfair to perform certain services for the foreigner to the disadvantage of the home trader. There will never be any development of industry in this country as long as goods are imported cheaper than similar goods manufactured here can be sent to the interior of the country.
Amendment declared lost on a show of hands, 13 voting for, and 17 against.
Question—"That Section 24 stand part of the Bill"—put and agreed to.
Section 25 ordered to stand part of the Bill.
The railway tribunal shall consider and, after hearing all parties interested and who are desirous of being heard, shall determine the classification of merchandise applicable to the amalgamated company and shall have power to divide the classification into such number of classes containing such descriptions of merchandise as they think fit, and in determining the class in which any particular merchandise shall be placed they shall, in addition to all other relevant circumstances, have regard to the value, the bulk in comparison to weight, the risk of damage, and the cost of handling such merchandise, and the saving of cost which may result when such merchandise is forwarded in large quantities.
I beg to move:—
Immediately before Section 26 to insert a new Section 26 as follows:—
26.—From and after the passing of this Act every station in the Saorstát where through rates do not now operate shall enjoy the through rates operating from the nearest station to it from which through rates do operate or may subsequently operate, at an addition to such rates not greater than the local rate between the outlying station and the station nearest to it from which through rates operate.
There are many stations in Ireland to which through rates do not operate. If you go to the railway people and ask them for a through rate they will always say, "I will allow you to go into the water when you are able to swim." or, in other words, "when you are able to provide traffic." What happens in that case is that someone finds himself being mulcted by people coming around and buying his goods at half their value. He decides to try other markets. The moment he does so the railway companies set up a regular schedule of rates against him. If he sends goods away he finds that it costs twice as much to market them as it would cost a man who sent them from a station further on, on a through rate. It takes him some time to find out that what he ought to do is to pay the local rate to the other station and rebook from there. It may be inconvenient to do that, and my object is to prevent the railway companies mulcting such people. I believe that if the proposal in this amendment were passed it would be to the advantage of everyone, and would encourage thrift and industry. It would provide an opportunity to producers for having several markets at their service. From long experience I am convinced that this would be a step in the right direction, and I hope it will appeal to the Ministry.
This is a very desirable amendment, if it were possible to carry out. The only objection I have to it is that it is not possible to carry it out. Through rates are not matters for fixation merely by the Irish railway tribunal. Through rates are a matter of agreement. Another party is interested in a through rate. A through rate does not operate within the territory of the Saorstát. It operates from that territory to some other territory. The whole thing depends upon agreement. We cannot compel the other parties to the agreement to establish through rates.
What I suggest is that the through rates shall be enjoyed from the nearest station plus the local rate to that station.
You propose that the customer shall have the privilege of enjoying the through rate by paying the rate from his own station to the nearest one to which there is a through rate.
If there is an arrangement with an English railway or shipping company for a through rate between Sheffield and Mullingar, and if there is no through rate between Sheffield and Athlone, the Senator's proposal would mean that we should compel the other parties to the agreement with Mullingar to give a similar through rate to Athlone. We cannot do that. We have given the railway tribunal all the powers we think possible under Section 50 (b): "The institution, variation or cancellation of through rates." I do not see what else can be done.
With great respect I am not speaking about a through rate from England to Mullingar. At Dun Laoghaire, if you ask for a through rate to Leicester, they will tell you that they do not possess a through rate, but that they will take the goods in the ordinary way. If you go to Amiens Street they will take the goods at a through rate. The man who takes his goods from Dun Laoghaire to Amiens Street at the local rate and books through from there to Leicester will get them carried at about half the rate charged the man who booked in the ordinary way from Dun Laoghaire. I am satisfied that a man taking goods from Dun Laoghaire to Westland Row or Amiens Street should pay the ordinary fare, but I do not think he should pay twice as much if he booked his goods at Dun Laoghaire as he would pay if he booked them from Amiens Street where there is a through rate.
It may be irritating to the Senator that there is a through rate from Amiens Street and none from Westland Row, but there has been an agreement with other parties, who are necessary parties with regard to the through rate from Amiens Street. There has not been an agreement in the other case, and you cannot compel agreement.
That does not affect the case, as all the man had to do was book his goods by the local rate from Dun Laoghaire to Amiens Street, and rebook them through by the through rate to Leicester.
As I have said, we cannot compel agreement. We have given the railway tribunal the power and the direction to proceed to enquire into "the institution, variation or cancellation of through rates" and where there are no through rates to see if they can institute them.
A show of hands was taken on the amendment, 16 Senators voting each way.
I confess that I would like to have this amendment examined. I do not see any difficulty about carrying out the proposal of the Senator, and in order to enable the matter to be considered I give my casting vote in favour of the amendment.
Amendment declared carried.
On a point of order, does a casting vote lie where there is a show of hands?
Yes; no division was asked for. I have to do the best I can. No division was challenged and the matter was left in such a way that there was nothing left but to give a casting vote. I do that with the knowledge that the whole matter can be gone into again on the Report Stage.
Sections 26, 27, 28 and 29 ordered to stand part of the Bill.
(1) All the terms, conditions and provisions of any statutory enactment or any agreement confirmed by or scheduled to a statutory enactment which, at the passing of this Act, are in force and binding on any amalgamating or absorbed company, by which the forwarding of traffic is affected, or for any other purpose, shall continue in full force and effect, save in so far as the same are rescinded or varied by this Act; but no such statutory enactment or agreement shall be construed as affecting or extending to any part of the railway of the amalgamated company or the traffic thereon which was not at the passing of this Act subject to or affected by such statutory enactment or agreement.
(2) Subject to the provisions of this Act the amalgamated company shall not by the rates or fares charged, whether through or local, the facilities provided or the accommodation afforded by it, or otherwise, place any one port in Saorstát Eireann at an undue disadvantage as compared with any other port in Saorstát Eireann to, from, or through which traffic is or may be carried.
(3) The amalgamated company shall if required by any person interested use all proper endeavours to provide a reasonable system of through booking with through rates, fares and facilities by all reasonable routes.
(4) No rebates, commissions, or agency, or other allowances shall be given by the amalgamated company to traders at or using any port in Saorstát Eireann which are not given by the company in similar circumstances to traders at or using any other port in Saorstát Eireann, and the word "traders" shall include any incorporated railway or steamship company.
(5) If any dispute shall at any time arise under the provisions of this section or as to any matter or thing under this section, or as to whether the amalgamated company are fulfilling their obligations hereunder or taking all reasonable or necessary steps for that purpose, the same shall from time to time be referred to and determined by the railway tribunal.
Section 30, sub-section (2), line 25. Immediately after the word "local" to insert the words "or by." Line 26. Immediately after the word "otherwise" to insert the words "having regard to the nature and extent of the traffic."
The sub-section gives any port in Saorstát Eireann a right to call for fares and rates, facilities and accommodation, not to place it "at an undue advantage." As it stands I take it the sub-section means that ports in the State can call on the amalgamated company to provide them with rates and fares. That is reasonable enough, but when you come to the words "facilities and accommodation" I do not understand what they mean. Apparently, the section means as it stands, that the port is not to be at a disadvantage. If a small port claims that there is a siding and all sorts of expensive things supplied to a large port which has a lot of traffic, and it has a right as the section stands to call on the amalgamated company to give it the same facilities I think it ought to be a direction in deciding this matter that regard should be had to the nature and extent of the traffic. We all know in the old days the small ports in Ireland used to make great efforts to get money out of the British Exchequer. As long as it came out of the British Exchequer it was all right; we all approved of the effort. But when we are trying to cut down the railway rates and the railway fares, to have the money of the railways spent on boosting small ports, quite irrespective of whether it will lead to much traffic or not seems to me to be quite wrong. A section may be drawn with words in it which may prevent such a thing being done, but I think it may be better to put in the words "having regard to the nature and the extent of the traffic," so that when the question comes up for decision any small port would not get an allowance which would be quite outside anything it could show justice for in the way of traffic. Only reasonable requirements should be satisfied, and the railways should not be subject to demands on them which could not be justified by the results.
I have an amendment on the same section, which depends a good deal on the word "undue." Senator Jameson has called attention to the word "undue." I agree with him. No one can possibly tell what "undue" means. It means not due. How can anyone say what "undue disadvantage compared with any other port in the Saorstát" means? I propose to leave out the word "undue." Senator Jameson's suggestion as far as it goes seems quite sound and reasonable.
I would suggest in agreeing with Senator Jameson that the words he proposes should come at the end of the section, and not at the beginning. I think it would be better and clearer. It emphasises traffic.
The first or verbal amendment does not seem to me to be very necessary, but it is acceptable as moved—I am speaking of Senator Jameson's amendment—that we should insert the words "having regard to the nature and extent of the traffic." I do not see that it improves the section. "Undue disadvantage" must mean unfair, having regard to all the circumstances. The two things singled out here would be included. I think there is danger in singling out certain things. There may be other points to come into consideration, as to whether or not undue disadvantage has been brought about; but I think from that point of view the general phrase covers all circumstances, and all circumstances will certainly embrace the two points called attention to here.
"Undue" is a well-recognised term in Railway Acts, and it means having regard to all considerations, of which the most obvious would be the two you want to specify.
Then, I understand from what the Minister has said, and your explanation of what undue disadvantage means, that there would be, as the section stands, no temptation in it for small ports to make what we might call outrageous claims for expenditure.
Nothing will stop that and the railway tribunal, if they interpret this Act and these words as they have been interpreted, will have regard to the considerations which you want to have specially mentioned.
With that knowledge of the meaning that is attached to these words, I ask leave to withdraw the amendment.
Amendment withdrawn, by leave.
I am not bringing up my own amendment now. What I approve of in this Bill mostly is that it seems to deal fairly between one port and another. Hitherto, ports on the western seaboard have always been handicapped because the rates from Dublin to 100 or 150 miles from Dublin are less than they are from the West Coast to only 30 miles off. If that is prevented by this section, of course I am quite satisfied, but I do not really know.
It has been mentioned that all sorts of claims are to be looked for, from small ports, sometimes exorbitant and outrageous claims, and it has been said the railway tribunal need not consider them, but they would be bound to consider them, and to act on them if Senator Moore's amendment was accepted. You would have to take the Port of Dublin and standardise that as regards advantages, and give the same facilities to every other port in the country, irrespective of whether the traffic could be said to come conveniently through that port or not. Of course, the amendment does not confine itself to rates and fares.
Section 30 put and agreed to.
Motion made to report progress.