Seanad Éireann debate -
Wednesday, 9 Jul 1924

Vol. 3 No. 12

SEANAD IN COMMITTEE. - RAILWAYS BILL, 1924—REPORT STAGE.

AN CATHAOIRLEACH

We shall take up now amendments of which notice has been given. At the same time Senators will recollect that there was a large number of matters held over which were to be looked into by the Government. If by any chance I pass over any section to which that observation applies, the Senator concerned will have full liberty to call my attention to it, and we will go back on it. I have not myself all the amendments that were suggested in my recollection, but they will be within the recollection of the Senator concerned, and I presume the Government will have a note of them.

SECTION 3.

Amendment 1—"In sub-section (1) to delete in line 50 the word "July" and to substitute therefor the word "August."

AN CATHAOIRLEACH

This is a Government amendment.

MINISTER for INDUSTRY and COMMERCE: (Mr. McGilligan)

This is an amendment which, with several others of the same type, such as Numbers 7 and 8, is rendered necessary by the date of the year at which we have arrived. This clause which it is now sought to amend had reference to the final date for the settlement of amalgamation schemes, for submission of agreed schemes or for preliminary schemes, and as we viewed the situation when framing the Bill, the 31st July seemed to be an appropriate and reasonable date. Under the present circumstances, it is thought fit to ask the Seanad to change July to August, so as to allow the railway companies to get notice served on those interested and on those who really own the lines. So far as this particular amendment is concerned, it will have the effect of making the 31st August of this year the date on which an agreed amalgamation scheme may be submitted to the Minister. I ask the Seanad to accept this amendment, taking into consideration the period of the year at which we have now arrived, and the fact that we have still this Stage and the Fifth Stage to go in the Seanad and the further Stage in the Dáil.

Mr. O'FARRELL

I would like to know what will be the procedure in regard to the publication of those agreed schemes that are submitted. Within what period will they be on sale to the various interests concerned? Will it be three weeks after the 31st August or three weeks after the time they have been received by the Minister, or within what period will they be available for the public and for the interests which will desire to examine them?

Mr. McGILLIGAN

Sub-section 5 of Section 9 has reference to that. It says:—

Printed copies of the proposed amalgamation scheme and of every absorption scheme submitted to the Minister or prepared by the railway tribunal in accordance with the provisions of Sections 3 and 5 of this Act respectively, shall be placed on sale at such places and at such prices as the Minister may direct, and notice that such copies are on sale and the places where they may be obtained shall be published in the Iris Oifigiúil, and no such scheme shall be confirmed or settled by the railway tribunal until the expiration of 21 days after the publication of such notice.

That is the only limitation. Of course, it would be in the interests of all concerned to have this made public as soon as possible, because time is running against the whole scheme. But there is no definite period laid down.

Amendment put and agreed to.

SECTION 4.

Amendment 2.—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.— Senator T. Westropp Bennett.

AN CATHAOIRLEACH

Senator Bennett moved this amendment on the last stage, and perhaps it is not necessary he should move it formally now as the matter was one the Minister said he would consider.

Mr. McGILLIGAN

The consideration I have given to it is shown in the next amendment, which really is my suggestion. It incorporates what I said here when Senator Westropp Bennett moved the amendment down in his name. I pointed out that in the event of his amendment being carried, as it stood, remuneration might be paid twice, even though remuneration came from two distinct sources. It was agreed generally in the Seanad, in considering the Senator's amendment, that a proviso limiting the remuneration to one of the two sources and limiting it to one payment would be desirable. I think my amendment covers the point. It reads:—

Immediately after the word "office" in line 46 to insert the words "or who resigns office consequent on his being appointed a standing member of the railway tribunal, but in the latter eventuality his remuneration as such standing member of the railway tribunal shall be taken into account in fixing the amount of any such compensation."

I think that is reasonable, and is also in accordance with what was proposed to the Seanad on Committee Stage, and which seemed to meet with the Seanad's approval.

Amendment 2 (in Senator Bennett's name) not moved.

Amendment 3 (as read by the Minister) put and agreed to.

SECTION 5.

AN CATHAOIRLEACH

The next is a Government amendment to Section 5, sub-section (1):—"To delete in line 63 the word `July' and to substitute therefor the word `August.' "

Mr. McGILLIGAN

This corresponds to amendment 1 in Section 3. This, however, refers to absorbed schemes, whereas the previous amendment referred to the date of the agreed amalgamation schemes, but the same arguments apply to both.

Amendment put and agreed to.

SECTION 6.

Mr. McGILLIGAN

The next two amendments to Section 6 are in the same co-relation as Nos. 2 and 3, and where previously they referred to the director of an amalgamated company, these amendments, Nos. 5 and 6 have reference to the director of an absorbed company. This amendment, No. 6, means that the remuneration will come from the one source and be one remuneration. I will, therefore, move amendment No. 6, which is as follows:

In Section 6. Immediately after the word "office," in line 35, to insert the words "or who resigns office consequent on his being appointed a standing member of the railway tribunal, but in the latter eventuality his remuneration as such standing member of the railway tribunal shall be taken into account in fixing the amount of any such compensation."

AN CATHAOIRLEACH

Senators will see that this amendment is in substitution of amendment No. 5 put down by Senator Bennett. The Government are really accepting his amendment, but in a different form.

Amendment put and agreed to.

SECTION 10.

Mr. McGILLIGAN

The next two amendments, Nos. 7 and 8, are the same as the previous drafting amendment. They read as follows:—

Section 10, sub-section (1). To delete in line 22 the word "July" and to substitute therefor the word "August."

Section 10, sub-section (2). To delete in line 26, as amended, the word "July" and to substitute therefor the word "August."

Amendments, put and agreed to.

SECTION 14.

Mrs. WYSE POWER

I move:—

In Section 14, immediately after sub-section (2) to insert a new sub-section (3) as follows:—

(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.

I think this amendment is worthy of consideration and further discussion.

Mr. MacLYSAGHT

As the person who moved the amendment to the sub-section on the Committee Stage, I wish to say that I only did so to meet an objection made by Senators on the spur of the moment. I now desire to second this amendment.

Sir JOHN KEANE

I do not think that the agricultural community will be satisfied with this amendment. By virtue of the composition of the panel there is a distinction between commerce and agriculture, and that must have been in the mind of the Government. If you are going to exclude agriculture, that is, to exclude anybody experienced in agriculture in its fullest sense from being a member of the tribunal, it will be very unfair to our main industry. Could not the Government see its way to introduce some form of words which will give a suitable person who has experience in the whole field of agriculture the right, if considered fit, to sit on the tribunal? I would not raise this point except that there is in the composition of the panel a distinction made between commerce and agriculture.

Mr. O'FARRELL

I would like to support the amendment. I think it would be an exceedingly dangerous course for the House to follow to give no indication as to any qualifications on the part of two members of the tribunal. It was pointed out, after we carried this previously, that it will be open to the Government to make political appointments irrespective of qualifications. There is evidently a conflict between agriculture and commerce in this House, and I think that is the reason that that amendment was introduced first without serious thought being given to it. Surely it is within the region of possibility that a man having a knowledge of commerce would also have a knowledge of agriculture. I imagine that in this House there are such people. In respect to the work which the tribunal will have to do, I fancy that one of the persons appointed will have to have a knowledge of accountancy, and I think that that is one reason why commerce was mentioned. He will be more or less a chartered accountant. If it is practicable for him to have a knowledge of agriculture all the better, but it might not be very likely that one will get an accountant who is also an agriculturist. He will, at all events, have a fairly general knowledge of agricultural affairs, and I think the amendment is fairly general in its character, and it is absolutely necessary if we are to prevent the tribunal being recruited from people without qualification.

Colonel MOORE

Why not say "or agricultural"?

AN CATHAOIRLEACH

I was going to suggest that. It could run in this way. "A person of experience in commercial and agricultural affairs, or either."

Mr. BAGWELL

I suggest that the amendment is desirable in its present form, and an amendment to the amendment is really not necessary. Any person of agricultural knowledge who would be fitted to be a member of this tribunal must obviously have a knowledge of commercial affairs. I think it is undesirable to introduce any particular form of business pursuit at all. The word "commercial" does not do that, because everyone who has a knowledge of business is to that extent commercial. If the amendment as now proposed is accepted it will not preclude anybody prominent in agriculture from serving.

Dr. GOGARTY

The amendment, as written, does not seem to disqualify anybody. A railway clerk, for instance, would not be disqualified.

AN CATHAOIRLEACH

Does Senator Sir John Keane accept the suggestion of Senator Colonel Moore?

Sir JOHN KEANE

Yes.

AN CATHAOIRLEACH

Are you suggesting, Senator Colonel Moore, to insert the words "commercial or agricultural affairs, or both"?

Colonel MOORE

I am ready to take it as you read it out.

AN CATHAOIRLEACH

"A person of experience in commerical and agricultural affairs, or either."

Colonel MOORE

I think the word "commercial" rather excludes "agricultural."

Mr. DOUGLAS

I would like to support Senator Bagwell, because if you say "commercial or agricultural or either," it seems to me to say that a man with agricultural experience is unfit for the tribunal. If he had experience of commercial matters I think that that would be sufficient to cover agriculture, which ought to be regarded as commerce.

Mr. KENNY

I spoke before of the judicial character of this tribunal. It is suggested now, I think, as the result of the Minister's view that all that is required is that he ought to be an experienced chartered accountant, versed in accountancy in every branch of industry, and possibly in large agricultural concerns, and that he might fill the requirements better than any other. You have here one member who is to be a judge of the Supreme Court, the High Court, or the Circuit Court. You have here a member who has to be a practising barrister of twelve years standing. What is the idea of that? It is that in the range of his experience he will possibly have adjudicated on matters touching every branch of industrial activity in the country, so he will have an all-round acquaintance with these matters. Now, the chartered accountant of at least twelve years' experience will probably have had cause, in the course of his practice, to become familiar with the details of the working of matters concerning every branch of industry that will be brought before that tribunal. If you wish to preserve the judicial character and to get away from the attitude of the bias or partisan element, as far as you can humanly, I hold to the view, seeing that there is a difference of opinion here as to whether a commercial man has agricultural knowledge, that the chartered accountant is more likely to have a general and detailed knowledge in matters of accountancy upon which the decisions of this tribunal will largely hinge and be regulated.

AN CATHAOIRLEACH

What is now before the House is the amendment proposed by Senator Sir John Keane as altered by Senator Colonel Moore. It will then read: "Who shall be a person of experience in commercial or agricultural affairs or either."

Mr. McGILLIGAN

I was trying to think out what section of the community could not come in under those heads if this amendment were passed in its new form. If I could conceive of any other interests, say the medical interests, I would put them in so that we can in a roundabout way arrive at the abolition of the clause. There have been many sham combats in this country, but this sham combat produced in the Seanad is really of the greatest mock character. It is not the intention of the Government to go down a list of names of suitable men for this tribunal and say "so-and-so is a likely man, but he has a taint of agriculture about him." That seems to be the attitude of the Seanad towards the agricultural interest when the members of the tribunal are being made up.

The President and I explained recently that the person really looked for was an accountant. It was not thought well to say so, because if you can get a man, a specialist in accountancy, and who has a knowledge of commercial matters, including agriculture, that is the man for the post. This is a tribunal of three men, a legal man to have experience in legal matters, a railway man who knows railway matters, and a man who knows accounts. Those are the three things. It is not a question of representation. There is not to be a fight in the tribunal, or two men against one. They are to be three men placed in a judicial position to decide on certain matters that come before them. The question of representation only comes in on the panel. The conflict, if there is a conflict, can be fought out on the panel. This is the tribunal that you want these three types of men on. We believe that we can get a man with a knowledge of accounts under the description of a person with experience of commercial affairs. If you alter this amendment, I suggest that we add medical men and university men. They would be very fine representatives, but eventually we would arrive at the abolition of the clause.

Mr. KENNY

If you pass that you may get a man who may know nothing at all about accountancy.

Mrs. WYSE POWER

I am going to stand by my amendment.

Amendment by Colonel Moore put and negatived.

Original amendment by Mrs. Wyse Power put and agreed to.

SECTION 22.

Mr. O'FARRELL

I move:—

In Section 22 sub-section (1), to delete the sub-section and to substitute the following new sub-section therefor: "(2) No appeal shall lie from any order made by the railway tribunal on a question of fact."

The effect of this amendment is to provide that there shall be an appeal from the railway tribunal on a question of law, but not on a question of fact. In the Committee Stage there was a mistake in the typing of this amendment; a few words were left out at the end which defeated its purpose. As I pointed out on that occasion, the majority of the tribunal will be non-legal. There will be one legal member, the chairman, and two non-legal members, and the majority decides any point. It is quite possible that the two non-legal members may outvote the judge or the barrister who will be chairman of the tribunal, and I think it hardly safe to legislate for making the findings of these two non-legal men absolutely binding, and that there shall be no appeal from their decision to the Supreme Court. The points in support of it are pretty obvious, and I move the amendment. It states that "No appeal shall lie from any order made by the railway tribunal on a question of fact." That assumes, of course, that there may be an appeal to the Supreme Court on questions of law, and I think it is extremely desirable that there should be, in view of the fact that the proceedings of this tribunal are equivalent to Private Bill legislation.

AN CATHAOIRLEACH

I want to say, Senator O'Farrell, that unless there is somewhere else in the Bill—and I think my recollection is that there is —a provision that there shall be an appeal on a question of law your negative words would not give one.

Mr. O'FARRELL

The next sub-section, I think, provides one.

AN CATHAOIRLEACH

As a matter of explanation, I merely wanted to say that you cannot give an appeal by inference.

Mr. O'FARRELL

Sub-section (2) reads: "Save as otherwise provided by this Act, an appeal shall lie from every decision of the railway tribunal to the Supreme Court."

Mr. McGILLIGAN

The difference between the amendment and the relative clause in the Bill is simply that the Bill, without the amendment, would leave no appeal at all, either in point of fact or in point of law, in one respect only, that is, in respect of any jurisdiction conferred on the tribunal by Part I. of the Bill. Part I. of the Bill has reference to the amalgamation and absorption schemes. I want to refine this down a little further to show exactly the difference between the Senator and myself. The method of submitting these schemes, or of having the schemes agreed, is set out in Schedule IV., provisions relating to the submission of schemes. Meetings have to be called in a certain way. If a meeting is not called in a proper way the meeting is an illegal one, and nothing done at it can be approved by the railway tribunal. If the meeting is properly called, them the rules applying to such meetings will hold. If anything has been done contrary to law, there is the ordinary appeal in such a course in the ordinary way, so that the preparation of these schemes is protected in two ways, and the meeting must be called in a proper fashion, otherwise it is completely illegal. If the meeting be called in a proper fashion, and if the rules regulating such a meeting are broken, then there is an appeal against the breach of such rules in the ordinary way, so that for the submission of schemes in accordance with Part I. there is ample provision for protection on points of law.

AN CATHAOIRLEACH

It is a little complicated. I want to help you if I can. Am I right in saying that there is no express appeal provided in any case under Part I.?

Mr. McGILLIGAN

No express appeal.

AN CATHAOIRLEACH

But what you are pointing out is that the tribunal has got to follow certain conditions, and if they do not they have exceeded their jurisdiction, and their orders can be quashed. That would be on the assumption that they have exceeded that jurisdiction?

Mr. McGILLIGAN

Yes.

AN CATHAOIRLEACH

Would it not be better to have that inserted? I want to clear it up. Senator O'Farrell's amendment is unnecessary unless he wishes to provide an appeal under Part I.

Mr. McGILLIGAN

That is what he does want.

AN CATHAOIRLEACH

Well, then, this is a very roundabout way to do it. Senator O'Farrell will pardon me for saying so, because if you look at Section 22, it says that there is to be no appeal from any decision of the railway tribunal under any other jurisdiction on a question of fact, and as I understand, what you want to provide is that there shall be an appeal under Part I. on a question of law, but not of fact. What I want to make clear to you is that it has been decided on the highest authority that words which negative an appeal on a question of fact do not imply that an appeal is given on a question of law. You have expressly to say that there is to be an appeal on a question of law.

Mr. O'FARRELL

I think that the amendment made it plain, seeing that sub-section (1) would read: "No appeal shall lie from any order made by the railway tribunal on a question of fact," and it does not specify Part I. or any Part. Then the next sub-section comes along and says, "Save as otherwise provided by this Act, an appeal shall lie from every decision of the railway tribunal to the Supreme Court, but no such appeal shall be brought except in conformity with rules of the Superior Court."

AN CATHAOIRLEACH

I see how you wish to work it out. I think it would have that effect.

Mr. McGILLIGAN

I am arguing against this proposal to give a right of appeal on a question of law arising out of the jurisdiction conferred on the tribunal under Part I. Indeed, I say that the Senator goes a little bit further, because he takes away the proviso, not in Part I., of any question regarding the locus standi of any person appearing to be heard before them. I do not think that the Senator is very anxious about that. It simply comes in incidentally to his amendment, but I am arguing against what I believe to be his main proposal, that is, to give an appeal on a question of law from an order of the railway tribunal in exercise of the jurisdiction conferred on it by Part I. Part I. deals with certain limited things, amalgamation and absorption schemes. The provisions for the application of these schemes are defined in the Schedule. If this Schedule is taken in relation to the general body of law it will work out this way, that if a meeting be illegally constituted then nothing it does can be approved by the tribunal. If a meeting be legally constituted but that something illegal is done, then there is a right of appeal under the general body of the law.

AN CATHAOIRLEACH

Is that quite clear? This thing has been the subject of constant litigation, and I am anxious to have it made quite plain. I am not at all clear that Section 22 will give the court power to entertain an appeal grounded on an allegation that they had exceeded their jurisdiction, because they are exercising their jurisdiction even if they exceed it. A man may exceed his jurisdiction in the exercise of it. I am inclined to think that the court might probably hold that this Section prevented them from going into an allegation of excess of jurisdiction, and I would recommend you to put in these words:—"No appeal shall lie from any order made by the railway tribunal save in the case of alleged excess of jurisdiction."

Mr. McGILLIGAN

My argument was this, sir, that it would not be an appeal against an order made by the railway tribunal in excess of jurisdiction if what I have outlined did come to pass, namely, that a meeting was constituted legally, but that something illegal was done at it. That would be talked of before it went near the railway tribunal. It would be talked of at a meeting of the stockholders.

AN CATHAOIRLEACH

But supposing the shareholders sanctioned a proposal that was in excess of jurisdiction, and then the matter came up before the railway tribunal, and they agreed with this exercise of excess of jurisdiction, would you give an appeal?

Mr. McGILLIGAN

If the stockholders sanctioned something which was in excess of the jurisdiction of the stockholders at the meeting?

AN CATHAOIRLEACH

Yes.

Mr. McGILLIGAN

If they did, it would come to a matter of agreement, would it not?

AN CATHAOIRLEACH

But supposing the railway tribunal wrongly accepted what it had done, and what they had done. Supposing that a person thought they had done so and felt aggrieved, and said that the railway company had exceeded their jurisdiction in this matter?

Mr. McGILLIGAN

Then I suggest that that person's attitude would be not to take it to the railway tribunal or appeal from them for exceeding their jurisdiction, but under Company Law, to proceed against the general meeting.

AN CATHAOIRLEACH

I am afraid that this tribunal is going to supersede that in cases of this kind. I think that the jurisdiction that previously existed in matters of this kind would pass to this tribunal. However, it is not really for me. I only wish to facilitate you as far as possible in making this section watertight. It does not seem to me to be watertight at present. Is it really intended that an appeal should lie in every case where the railway tribunal exceed their jurisdiction, because, as I pointed out, you may exceed your jurisdiction while you are at the same time exercising it? You may exceed it in the exercise of it, and the courts may hold that they cannot go into these cases, because the Act says that there is to be no appeal from anything done in the exercise of their jurisdiction. If you put in there: "No appeal shall lie from any order made by the railway tribunal save in the case of excess of jurisdiction"——

Sir JOHN KEANE

I do not think that that would be sufficient.

AN CATHAOIRLEACH

That is another matter.

Sir JOHN KEANE

I feel that I would like to support Senator O'Farrell in this. It strikes me, reading through the provisions, that the amalgamation and absorption scheme is most involved and very complicated. I may be imagining, but it strikes me that questions of law may easily arise, and in that case what would be the objection of the Government to improving the Bill? I do not think that the Minister has answered that. He gave an appeal in all the other Parts, but the Government seem to have some fundamental objection to giving an appeal on a point of law under Part I. If it applies under the other Parts, why should it not equally apply under Part I.? A legal point might as easily arise under Part I. as under any other.

Mr. McGILLIGAN

I did not answer that because I had not concluded my argument. Senator O'Farrell wants to give an appeal on a question of law under Part I. I had got so far as to point out that Part I. was limited to absorption and amalgamation schemes, and as far as the agreed schemes were concerned, I think the stockholders are perfectly protected in the Fourth Schedule. As to anything beyond that, Senator Sir John Keane asks what is the objection to an appeal on a point of law. My answer is a very simple one. I do not want an unnecessary appeal in these schemes, either the agreed or the compulsory ones, and Senator O'Farrell said it will be two laymen in opposition to one legal man on this tribunal. That is perfectly right, and it must be borne in mind, in weighing this amendment, that I did not seek to minimise that difficulty. But I do say that two laymen on a tribunal of three, the third of which is a legal man, would certainly be very much swayed by the legal man's opinion on questions of law. They will be pretty well subservient to his point of view, so that while there is a danger that must not be lost sight of that you could have two stiff-necked and arrogant laymen on this tribunal who might become objectionable towards the legal man, and simply oppose him, that is a risk that must be run.

I urge against that that it is a contingency that is not likely to happen. On the other hand, if you put in a clause of this sort you must recognise the situation with regard to this amalgamation scheme, and you must recognise that, just as in Private Bill procedure, the door is open to all sorts of obstruction to the carrying through of a proposal in a private Bill, so if you put in an amendment of this sort you open the door for all sorts of obstruction to the carrying through of the amalgamation and absorption schemes in time, and time is very much the essence of this Bill. I urge against the acceptance of the amendment on the ground that it is possible that it will lead to unnecessary delay. So far as the interests of stockholders are concerned in an agreed scheme, they are protected in the Bill under Schedule IV. I do not like to set up here a legal opinion that I have got privately, but I have been advised by the Legal Adviser of the Government that this section is watertight in so far as it was sought to make it watertight. I cannot say that all the points raised here were put before the Legal Adviser, but the advice he gave to me was that this section was as watertight as he thought it advisable to have it.

AN CATHAOIRLEACH

I can quite see what the Minister urges. The intention of the Government, and the Dáil has, apparently, agreed to it, is that there shall be no appeal of any kind when the railway tribunal is acting under Part I, so long as the railway tribunal complies with the conditions of their jurisdiction. At the same time the Minister says the Government do not wish to prevent an appeal when they fail to comply with the provisions which are attached to the exercise of their jurisdiction, and, therefore, it seems to me they have failed to accomplish that, or they may have failed to accomplish it under this section. They would make it quite plain by putting in the words "save where they acted in excess of jurisdiction." If that is the intention of the Government that would express it. I think that as the section stands at present when a court comes to construe it they will say, "even though they have exceeded the jurisdiction they have done so in the exercise of their jurisdiction, and, therefore, we cannot entertain the appeal." That is a point that is worthy of consideration. I put it forward for your consideration, and if you think it is necessary you can alter the Bill in the other House.

Mr. McGILLIGAN

The point raised by An Cathaoirleach is a matter I could consider, and I could see if the section fully protects the point raised by him. But I am not at all sure that is the point raised by Senator O'Farrell.

Mr. O'FARRELL

I do not like to intervene between two lawyers, but I think the House can now visualise the position of a layman on the tribunal. Probably not being able to understand the lawyer he will decide for himself, and probably in a non-legal way. It would seem to me that sub-section (1), Section 18, fully protects the jurisdiction of the tribunal and prevents an appeal. It states:—

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 of 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 by certiorari into any other court.

AN CATHAOIRLEACH

That is the reason why I said it is very difficult to say that any appeal would be given under Section 22, if they do exceed their jurisdiction, because Section 18 looks as it it were intended to prevent that.

Mr. O'FARRELL

Sub-section (2) of Section 22 merely provides that there shall be an appeal from the decision of the Railway Tribunal not on a question of jurisdiction, but an appeal on some decision made by them acting under jurisdiction. The Minister's argument is one of expediency as against one of justice. I do not think the House should legislate in that spirit. It may be desirable and it is no doubt desirable that this Bill should come into operation at the earliest possible date but in order to facilitate that desirable end I do not think it is right to run the risk of an injustice being inflicted on a number of people and that there should be no appeal against such an injustice merely in the interests of expediency. The British Act provides for an appeal and if it were not for that fact thousands of people would have suffered a grave injustice in respect of future superannuation matters. Already appeals have been lodged against the attempted action on the part of two of the groups and decisions have been given against the companies and so far as I understand, against the findings of the Amalgamation Tribunal as it is called in Great Britain. If there was no appeal it would be impossible to remedy this injustice and the only real argument put up against this is that it might cause unnecessary litigation and delay. Litigation instituted for the purposes of obstruction is a very expensive matter—any form of litigation is an expensive matter—and I do not know that there are people in this country sufficiently wealthy to go out for the mere fun of the thing and to go to the Supreme Court with appeals from the decision of this tribunal. Apart from that there seems to be no real argument at all against this amendment.

Mr. McGILLIGAN

I quite agree with the Senator that apart from the question of delay and obstruction there is no real argument against the amendment, but it is on that point I take my stand. He says he does not think there are individuals wealthy enough in this country to take appeals for the mere fun of the thing. That is not putting the situation fairly. I am not sure there are individuals wealthy enough to do this, but remember it would not be for the fun of the thing appeals would be brought. It would be for the definite object of blocking the passage of this Bill. It has not been blocked in its passage either in this House or in the Dáil, but it might be blocked outside by individuals who may be obstructionists, by interests who are represented in this country and who would be obstructionists. The British circumstances were not at all equivalent to ours. Here there are very definite interests in conflict with the whole principle of this Bill. There is a particular point of time to which we must work in this Bill. The results must be shown quite soon or the whole amalgamation scheme fails. The 31st August is one date, the 1st of January of next year is another. Between these periods any delay occurring might defeat the whole purpose of the Bill. The danger is quite clearly there. What is the danger on the other side? The danger, according to the Senator, is that certain interests of certain private people might be prejudiced. That is to say, stockholders, I presume.

Mr. O'FARRELL

Not necessarily; staff also.

Mr. McGILLIGAN

Or the staff. The staff are dealt with in another section, and, I think, are adequately protected. They are not protected, of course, to the extent Senator O'Farrell would wish. He has urged his point on that very clearly at the previous Stage. He has been met to a certain extent. The only interests under this particular section which could be prejudiced are the interests of the stockholders, and I hold that, reading that section with the Fourth Schedule, it shows definitely that the stockholders are very adequately protected. It is simply a balancing of two dangers, and I believe that the danger to the whole Bill is much bigger, and much more to be taken into consideration, than the very unlikely prospect of danger to the stockholders or the employees.

Amendment put, and declared lost.

SECTION 26.

Mr. JACKSON

I move:—

To delete the new Section 26 inserted in Committee.

The section referred to reads as follows:—

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.

The reasons I wish to put forward for this amendment are as follows: In the first place, I think the section will be quite inoperative, as all through rates are practically put into force by the British railway companies, and there will be no power, even by the tribunal here, to compel the British railways to issue a through rate. There has never been a case of a through rate being put into force that has not been put into force by the British railways. What has occurred in practice is that, wherever a sufficient volume of trade was passing, applications were made and through rates would be granted if it could be shown that the business would be sufficient to warrant it. The number of through rates in existence are very numerous, and I should think that, even if we had the power, we would find it very difficult to get the consent of the British railways to go on issuing indiscriminately through rates to every part of the country. What I would suggest is that people can send goods from out-of-the-way places to the nearest station where the through rates operate, pay the local rate, and all that would be needed would be an agent, or some representative in the town or place where the through rate operates, to have the goods re-booked. In that way people would get the advantage of the through rate by only adding the local rate. I think this section is unnecessary, and I move its deletion.

Mr. LOVE

I have listened with great attention to the Senator, and he has practically stated exactly what I endeavoured to get done. The only point I differ with him on is this, and it is the great crux of the whole thing: The object of my amendment is to help people who, perhaps, would not have the same knowledge of railway rates as the Senator or I myself might have, and who do not know how to take advantage of the opportunities to increase their production by marketing their goods at a cheap and reasonable rate. In England at present there is a great furore about the impossibility of big places, even like Grimsby, being able to carry on business because of the rates charged, and the rates in England are only 50 per cent. over pre-war. In the Free State they are about 150 per cent. over the pre-war rates, and in Northern Ireland something like 75 per cent. It is for that reason that I wanted this section inserted. Perhaps the Government could see their way even to go one step further to remove the difficulty which would exist, even if the suggestion of Senator Jackson were accepted. If a man at an outlying station sends goods at the local rate to the nearest station from which there is a through rate, some arrangement might be made by the railway companies that the goods sent in that way would be booked through to their destination in England. That would settle the whole thing.

AN CATHAOIRLEACH

That is really the substance and effect of the section which the Deputy got inserted in Committee.

Mr. LOVE

Quite so.

Colonel MOORE

I am strongly in favour of the section remaining in the Bill.

Mr. McGILLIGAN

I urged against the acceptance of this amendment on the Committee Stage, and consequently I am now both logically and after further consideration, in favour of the amendment proposed by Senator Jackson. The effect of the section has to be considered in its relation to the local traffic. Great complaint is being made at the moment as to the preferential rates for through traffic. That preferential rates for through traffic. When a through rate is given, it is given after having taken into consideration all the peculiar circumstances as between the two points from and to which the through rate operates. The effect of the section is to extend indefinitely, without any regard to circumstances, a through rate which has been established by agreement between two bodies after a definite consideration of the particular circumstances. It would have a further repercussion on the whole Bill. Standardisation of charges is one of the objects set out in the Bill, and that includes the doing away with the numerous exceptional rates which have got to be a grievous hindrance to traffic and a great source of annoyance to traders.

If this section is left in the Bill it is going not merely to set up further exceptional rates, but it will increase and enlarge the difficulty arising from the exceptional rates. It is going to multiply indefinitely what really are exceptional rates. That is going to be done, as I say, without adverting to the particular circumstances that operated to bring about the exceptional rate in a particular case. As has been pointed out by Senator Jackson, it is going to insist on a thing being done which really in practice requires agreement, and I do not see how it is going to be operative. If it is operative it is going to be at the expense of the local traffic and to give the preference to the cross-Channel traffic.

Mr. LOVE

All I ask is that a station in the Saorstát to which through rates operate should accept the goods from an outside station and send them to their destination.

Mr. McGILLIGAN

The Senator knows that it means having a particular through rate which is less than some of the local rates. It is going to say that so far as Ireland is concerned you are going to graft on to that a through rate to one particular point by simply adding the local rate. That is going to extend exceptional through rates by simply adding the further addition of the local rate. That is also going to be prejudicial to the local rate.

Sir JOHN KEANE

We were told that this rate question was a very complicated one, and having heard this I believe it. It is very well known that certain places do enjoy exceptional through rates owing to the competition of sea routes, and that they get special rates by water. It seems hard on an inland town, somewhere near such a place, that people should not be able to have goods booked at the through rates. I hope if that is the fact that the Seanad will refuse to accept the new amendment, so that inland districts may be given the advantages of rates from ports, or other favourably situated points.

Mr. FARREN

I am in sympathy with the amendment that was inserted on the Committee Stage, but in view of what the Minister has said, when dealing with through rates, as far as this country is concerned, I can understand the difficulty. As the Minister repeatedly pointed out, there are other parties to the arrangement. If the agreement has to be an agreement between different companies, including shipping companies, and others that do not come within the jurisdiction of this Bill or of the Saorstát——

AN CATHAOIRLEACH

Is there not confusion? Senator Love does not propose to interfere with existing agreements. What he proposes is that where there is a through rate from certain places in Ireland to England, anyone living in the neighbourhood can get the benefit of that through rate by, in addition, paying the local rate. It is not proposed to interfere with the through rate.

Mr. LOVE

I do not propose to destroy anything that exists at present.

Mr. JACKSON

I have a great deal of sympathy with people in the inland towns in the Free State, where the rates are unfortunately so high, but, if you were to compel the railway company to have through rates indiscriminately all over the Free State, it could not exist. To begin with, the reason the through rate is so low, comparatively speaking, is, first of all, that when goods are brought from towns, say, near Liverpool, the shipping company has also to get a share for carrying them from Liverpool to Ireland. Heavy charges are incurred at the port. At Liverpool it costs 7s. a ton for traffic brought from the railway station and put on board the steamer. A steamer can carry anything from 500 tons to 5,000 tons, and can be worked with comparatively little labour and at considerably lower cost than a railway. I have every sympathy with the amendment, and I would like to assist agriculture by lowering rates, but, at the same time, I think it would be unfair to the railway companies to compel them to carry the bulk of their traffic on rates based on water competition. It is simply impossible.

Mr. LOVE

I repeat once more that there is no attempt at compulsion. The only attempt is to make the rates of greater advantage to the country. For example, if you take "A" and "B.""A" lives at an outlying place, while "B" lives at a place to which there are through rates to England. All I want is to give "A" the advantage of the through rate from "B" if he books his goods forward.

Mr. McGILLIGAN

The Senator says he does not want compulsion. His amendment is really a compulsory one. It says—

From and after the passing of the Act every station in Saorstát Eireann where a through rate does not now operate shall enjoy a through rate.

That is compulsion, and must be recognised as such. There is no getting away from that. It really turns on a question of book-keeping. The Senator has just described what he has done and what everyone could do. Traders could book from an inland town to a port from which a through rate operates. What the Senator seeks is to have one booking and save trouble and re-booking.

Mr. LOVE

Not to save trouble, but to save the enormous cost. The old rate was five-eights of a penny for goods on passenger trains, such as fish. If they were booked at the local rate to the next station where there is a through rate, they would get to England at one-third of the cost.

Mr. McGILLIGAN

By agreement with England. There are two points now involved. There is the question of booking and the question of the lower rate, and both of these depend upon an agreement which is to be entered into with the corresponding companies on the other side. You cannot put on the amalgamated company the responsibility even to do the booking. Let us take the booking alone. It is a simple thing. A man wants to book to a town in England and he receives a document common to both the Irish railway undertaking and whatever English railway is concerned on the other side. The division of that receipt will be done by the Clearing House, but that division will only operate on the basis of an agreement. You cannot insist that the English company will do something on a new route, because they have done something on the shorter route. You cannot say to them simply "Will you take what you had agreed to take out of this on the shorter route and we will take the rest?" If they did that the same thing could operate on the other side, and the railway company here would be compelled to carry things back from all sorts of places in England to Ireland under that arrangement, although agreement may not have been previously reached by the two companies concerned as previously arranged. On the question of expenses, I see a further difficulty. It is going to penalise the local traders at the expense of the cross-Channel traffic.

Amendment put, and on a show of hands, it was declared carried.

SECTION 42.

Sir JOHN KEANE

I beg to move amendment 11, standing in the name of Senator Counihan:—

Section 42, sub-section (1), to add at the end of the sub-section the words "provided also that no livestock shall be carried by the amalgamated company upon other than the company's risk conditions."

This was a matter the Government said they would consider, and I formally move the amendment.

Mr. BAGWELL

That is a matter upon which I would like to say a few words. It is the usual practice for railway companies to have two sets of rates in respect of a number of traffics—the company's risk rate, which is higher, and the owner's risk rate, which is the lower. This amendment seems to make that practice illegal in respect of cattle. It seems to make illegal a practice which is the result of generations of experience. I suggest that such a step should not be taken by the Seanad. We cannot here give adequate consideration to a matter of this kind. The railway tribunal set up under this Act is clearly a very much more suitable body than we are to consider a matter of this sort. They can hear all the arguments for and against at length. They can incur all the necessary delay to obtain all the facts which are pertinent to enable a sound decision to be arrived at. We cannot do any of these things here. But quite apart from the railway tribunal being a very much more proper body than the Seanad to deal with a matter of this kind, on the merits I should like to express my view, that this amendment, if accepted, would affect a most undesirable change. It seems to me that if there is any traffic in respect of which it is desirable and legitimate that there should be two sets of rates—a company's risk rate and an owner's risk rate—it is this. As a matter of fact, practically all cattle are carried at owner's risk rate.

In dealing with traffic which consists of inanimate objects, any damage that is caused in transit is liable to fall on the railway company. It may not be the result of deliberate negligence, but at all events it is more or less under their control. In the case of cattle they are not inanimate objects, and they are not under the control of the railway company, as some other objects are. Cattle carried in trains very often come from a fair. Anybody knows who has been at fairs that cattle are really kept together in fairs by being beaten. That is not the fault of the railway company. In addition to that, once they start in the train, and actually while in the train, they can commit all sorts of offences against each other which the railway companies cannot prevent, and they must suffer thereby. They are completely out of the railway company's control when they go from the train to the steamer or to their destination, which may be the farm. Claims may be made after all that is over, and it is absolutely impossible for the amalgamated company or any other company to take care to prevent the cattle being damaged in transit, and therefore I submit on the merits, it is very undesirable that a change of this kind should be made in the law such as is proposed by this amendment. If any change is to be made in the matter of owner's risk and company's risk, it should be made after very much more deliberation than is possible in this Assembly.

Mr. McGILLIGAN

There is just one remark that is not of substance in regard to this amendment, but it was made here, and I propose to consider it. I am reading from the Official Report:—Senator Counihan said: "If the Minister would leave the matter open he can make his mind clear whether the prevailing rate is company rate or owner's risk rate. I am still of opinion that the prevailing rate is company's risk rate." Later on, when the next amendment was submitted, the Senator said that the effect would be if the previous amendment was inserted, the words would naturally go out. I remarked that the previous amendment was left over for the Senator's consideration, and not for mine.

AN CATHAOIRLEACH

I think I had better say that this amendment is by leave withdrawn, unless Senator Sir John Keane would like me to put it.

Sir JOHN KEANE

No.

AN CATHAOIRLEACH

Amendment, by leave, withdrawn. The next amendment is also in the name of Senator Counihan, to delete in lines 30-31 the words "live stock."

Mr. McGILLIGAN

Senator Counihan said on the last day that that amendment was contingent upon the other being accepted.

AN CATHAOIRLEACH

Then this amendment also is by leave withdrawn.

SECTION 53.

Sir JOHN KEANE

I beg to move:—

In Section 53, sub-section (1), immediately after the word "standard" in line 27 to insert the words "and exceptional."

This amendment raises a point which I confess is rather involved in its consideration. If the House will turn to Section 53 they will see there that it is contemplated to fix the standard revenue as revenue solely or mainly with regard to standard charges and without consideration to exceptional charges. To a layman that looks as if it would involve very great difficulty. I do not know that the railway company themselves exactly know—of course, I speak subject to correction— what percentage of their revenue comes from exceptional charges. But it is a very considerable portion. Seventy-five per cent. of the tonnage is carried at exceptional rates.

Now it is proposed to fix the standard charges on which the standard revenue depends without any regard to the exceptional charges whatsoever. The Minister will reply that the exceptional charges in the future are going to be very much reduced in volume because owing to the re-classification you are going to embrace, or going to absorb, in those new classifications which I believe will rise to 26, a number of the exceptional rates. But I do not think it will be denied that the exceptional rates will still continue and to what extent is problematic. Now let us picture to ourselves the position that may arise. I say that may arise for the reason that I am speaking without an intimate knowledge of the matter. I am also speaking with diffidence because the railway company themselves are obliged to have super-experts on these questions of rates and the ordinary railway man is somewhat at sea about them. Under this Bill exceptional charges disappear on the "Appointed Day."

It is interesting incidentally to notice that the "appointed day" in England has not yet arrived although the Act is in operation three years and also that a whole array of counsel have been engaged, in view of the "appointed date" on the question as to what is standard revenue. That is an indication of what is to happen on a smaller scale here. Exceptional rates will disappear except those not less than 5 per cent. below the standard rates and any that are continued by agreement between the traders and the companies. Well, now, it strikes me that that may operate very hardly and to the prejudice of the ordinary users of the railways who are not in a position to get exceptional rates. I cannot see anything to prevent these powerful corporations with big traffic of every kind to offer going to the companies for a continuance of the exceptional rates. In England they have continued the exceptional rates by agreement; that is my information but of course I am open to correction and I see nothing to prevent a large number of powerful corporations getting the exceptional rates fixed favourably for themselves. After all it is a business arrangement.

Mr. McGILLIGAN

The companies will want to increase business and to get customers. The result will be that these powerful interests will get exceptional rates fixed unduly favourable to themselves, and the tribunal will be met with the fact. Here is a definite volume of revenue fixed, and tied up under exceptional rates which are outside our purview altogether, and we will have to fix standard rates in regard to what is left. Naturally, standard rates will reduce the standard revenue unduly owing to the fact that exceptional rates have been given unduly favourable.

Sir JOHN KEANE

This is not entirely a matter of my own creation. The difficulty has arisen in Great Britain on these very points of the question of the treatment of exceptional rates. I feel the only way is to raise the question, and I submit that the only way to settle it is to bring the whole of the exceptional rates within the purview, in fact the whole rates, both standard and exceptional, within the jurisdiction or competence of the tribunal that is to determine the standard revenue. I do not know whether I can make the matter any clearer other than as the case strikes me, and I shall be glad to hear from the Minister if fundamentally my argument is at fault.

Mr. BAGWELL

I am not a super-expert and I am not so foolish as to pose as one, but it seems to me that the effect of this amendment would be to put so much work upon the railway tribunal that they would never get through it. I confine my criticism of the amendment to that.

Mr. McGILLIGAN

The particular criticism of Senator Bagwell is very pertinent to this point. It would put such a volume of work upon the tribunal that if this work came before it, the work of the tribunal would never be completed. As to what Senator Sir John Keane said, I have only this remark to make, that is, that an earlier section than Section 53, but later than the one he made reference to, has a bearing on this section, that is 35 (2), and I think that will meet most of the points raised by Senator Sir John Keane. It is: "If the Minister is of opinion that the amalgamated company is granting new exceptional rates in such manner as prejudicially to affect any class of users of the railway not benefited by such rates, or so as to jeopardise the realisation of the standard revenue of the company, he may refer the matter to the railway tribunal, who may, after giving all parties interested an opportunity of being heard, take either or both of the following courses:—

(a) revise the standard charges;

(b) cancel or modify all or any of such exceptional rates."

He told us incidental to his remarks that the bodies in England had not yet begun to deal with these exceptional rates and later on he said there had been difficulty in connection with them. I wonder does he mean difficulty before the Tribunal because my information is that the British Railway Tribunal has not yet approached the question of rates. Its operations so far have been confined to dealing with standard revenue. The Senator is quite right in stating that there is an unwieldy proportion of exceptional rates at the moment but this Bill sets out to cut these down and it does cut them down by the operation of Section 34. Section 35 refers to the future. The granting of any exceptional rates is in the proviso which shows that this matter may be raised by the ordinary class of user who might be prejudiced, and on both these points with regard to new exceptional rates there is the provision in Section 35 (2), and then with regard to the present, we do start off under Section 34 by cutting out the operation of the rates which do not follow within the rather narrow limitation laid down there.

Sir JOHN KEANE

As far as I can see, Section 35 only deals with new and exceptional rates.

Mr. McGILLIGAN

I said so.

Sir JOHN KEANE

But supposing the bulk of the present exceptional rates were continued by agreement, that would not come within the purview of the Minister at all, or within the purview of the tribunal. This question is very technical. I have no hope of carrying this amendment, but I put the matter to the Seanad.

Amendment put and negatived.

Mrs. WYSE POWER

I move:—

In Section 53, sub-section 1, to delete in line 4 the word "fifty" and to substitute therefor the words "thirty-three and a third."

I do so because I believe the insertion of the amendment put in the last day was not in the interest of the extension or development of the railways. It was carried by a very narrow vote.

Amendment put and declared carried.