Seanad Éireann debate -
Thursday, 27 Nov 1924

Vol. 3 No. 22

DAIRY PRODUCE BILL, 1924.—REPORT STAGE RESUMED.

Mr. HOGAN

The amendment I wish to move is:—

Section 22, page 18, line 6, to add at the end of the section a new sub-section as follows:—

"(6) Where the Minister proposes to cancel the registration of any premises under this Act on the ground mentioned in paragraph (e) of sub-section (3) of this section, the registered proprietor may by notice in writing to the Minister require the matter to be referred to arbitration, and in such case the following provisions shall apply—

(a) the question whether the registered proprietor has or has not failed or omitted to carry out a contract within the meaning of the said paragraph (e) shall be referred to the decision of an arbitrator or arbitrators appointed for the purpose by the Executive Council.

(b) the number of the arbitrators shall be either one or three as the Executive Council shall think proper, and the arbitrator or one of the arbitrators (as the case may be) shall be a practising barrister in Saorstát Eireann of not less than twelve years' standing.

(c) the Minister and the registered proprietor shall be entitled to appear (with or without solicitor and counsel) and be heard by the arbitrators on the question so referred as aforesaid and to adduce evidence thereon.

(d) the costs of the arbitration (including the arbitrator's fees) shall be in the discretion of the arbitrators.

(e) the decision of the arbitrator shall be final and conclusive and shall not be subject to review by any court.

AN CATHAOIRLEACH

Has Senator Sir John Keane seen what the Minister proposes?

Sir JOHN KEANE

The Minister kindly showed it to me, but I only glanced at it cursorily.

AN CATHAOIRLEACH

I hope the Minister will excuse me, but it seems to me it is not quite adequate. What it does do is, it provides an appeal on a question whether the person has or has not broken his contract, and I think it ought to follow "and whether, in the circumstances, the case requires the cancelling of his licence." The arbitrator may find that there is no dispute on the facts, but that when the man broke his contract, he might be able to show he did so in such circumstances as to make it extremely hard for the arbitrator to destroy his trade for the first offence. The idea I had in my mind was that not only should the arbitrator determine whether he had broken his contract, but that he should also determine whether in doing so, his conduct was such as to justify the destruction of his licence.

What I was going to suggest to the Minister was this: His words are whether the registered proprietor has or has not failed or omitted to carry out a contract within the meaning of the said paragraph (e) shall be referred to the decision of an arbitrator or arbitrators. I was going to suggest to him to add also "and whether in consequence of such failure, his registration ought to be cancelled." Perhaps it would be better if the Minister would open and explain his proposals.

Mr. HOGAN

What will happen in practice is: the contract will be broken at least four or five, or perhaps six or seven times, before such a drastic remedy as the withdrawal of registration, and the prevention of the proprietor from exporting would be adopted.

AN CATHAOIRLEACH

But you cannot put it in that way. As the thing stands at present you are not dealing with the case of a man who has broken his contract four or five times, but with the case of a man who has broken it once. Is not that so?

Mr. HOGAN

It is so.

Mr. BROWN

The crime that makes him liable to this deprivation is defined in paragraph (e), sub-section (2)—"That the registered proprietor having made a contract for the sale of butter to be exported from premises of which he is the registered proprietor has, without reasonable cause, failed or omitted to carry out such contracts."

"Has without reasonable cause failed to carry out"—and that is what, I think, the Minister himself refers to— the arbitrator; whether it is broken without reasonable cause. If that is decided in the Minister's favour the arbitrator has nothing to do but to strike him off the register.

AN CATHAOIRLEACH

That is not the way the other clause is phrased.

Mr. HOGAN

Section 3 provides "the Minister may cancel the registration," therefore he need not do it the first time, and, therefore, I was pointing out that in practice it will be impossible to fine a man such an extraordinary fine as would strike him off the register, closing down his premises, stopping up his business, and rendering his capital almost useless by reason of having broken a contract once. He would have to be an old offender before that could possibly be done. How does this come to the arbitrator? You have perhaps different arbitrators at different times; you may have one set for the first time, a different set for the next time, and so on, and it is rather asking them to give a very serious and invidious decision, to put the onus on them of following up all the consequences of a breach of contract, and saying to the Minister this man should be removed from registration. I think it would be more effective in practice to throw that onus upon the Minister, and, in addition, there will come in, as Senator Brown put it, the intermediary of paragraph (e), where it is provided that the registered proprietor has without reasonable cause failed or omitted to carry out such contracts. Would it meet your point if these words were transferred to the amendment?

AN CATHAOIRLEACH

Perhaps they are there already, because we have put in "within the meaning of the said paragraph (e)." I think that covers it. Again, I might direct the attention of Senators to the fact that we will, of course, have to adjourn this matter after we have inserted these powers at this stage, and that there will be an adjournment between now and the final stage, and the question can be reopened if desired.

Mr. DOWDALL

I think the Minister has gone too far in giving facilities to people to practice what I can only term a fraud. Let me put the case before the Seanad. There are two creameries four miles apart. Each on a certain day sells, let us say, a hundred casks of butter at a fixed price. The market advances, and one man does not deliver. He sells to somebody else at the increased price. His honest competitor is prejudiced in competition for milk to the extent of £25 on that transaction alone, and facilities are to be given for such conduct, and the Minister has stated that there will be no drastic penalty inflicted upon that man until he has offended six or seven times.

AN CATHAOIRLEACH

I do not think the Minister meant that at all. A man may break his contract without doing it in the way that the Senator has suggested, that is, with the deliberate purpose of taking advantage of a rising market. He may be unable to get the stuff that he contracted to deliver. If there was a case in which a man deliberately broke his contract and had no excuse but that he wanted to avail of a rising market, I imagine the Minister would cancel his licence there and then, without going before any other body at all.

Mr. DOWDALL

That may be so, but I, unfortunately, have so often been the victim of this kind of thing that I speak feelingly on the matter. If a man offers to sell what he has not got either on the Stock Exchange or otherwise, he has to buy it and to make good. Why should a man in a creamery trade be exempt from the ordinary canons of honesty and treated better than anyone else?

AN CATHAOIRLEACH

I only gave one case, but you can imagine a dozen others. Supposing there was a strike on.

Mr. DOWDALL

I agree that a man may be unable to deliver because of a strike or force majeure, but these are mentioned in ordinary courts, and, of course, neither in the ordinary courts, nor in the administration of this Act, would hardship in such a case be inflicted upon the person if he is not really a transgressor. I admit this is an extraordinary provision in the Bill, but it is a provision that was seen to be necessary not only by this Board of Agriculture but by previous Boards. Such breaches of contracts have gained an extremely bad name for the country on the other side of the water. As this will come on again, I do not wish to stress it, but I do hope that no loophole will be permitted by which a deliberate transgressor will evade the proper penalty in a case of this kind.

AN CATHAOIRLEACH

I think that it only allows the arbitrator to interfere with the decision of the Minister where he finds that there was reasonable ground for failing to complete his contract. If the arbitrator finds that he acted reasonably he would not interfere with the decision or the opinion of the Minister.

Mr. HOGAN

What I had in mind when I said six or seven times was that on a few occasions where there would be no excuse, there might be cases where you could not take the extreme step of closing down. It is only where the thing is done absolutely deliberately.

Mr. DOWDALL

I have seen all sorts of cases where a man commits an offence, but where it comes to settling the responsibility you find all sorts of people coming forward with all sorts of petitions on his behalf.

AN CATHAOIRLEACH

I am afraid you signed a good many in your time.

Mr. DOWDALL

I am afraid I did.

AN CATHAOIRLEACH

On reading that amendment I am in doubt as to whether that does not mean that on the amount of the arbitrator's own fees his decision shall be final.

Mr. HOGAN

I am afraid it does. Would you not agree with that?

AN CATHAOIRLEACH

I suggest that you add—

"the cost of the arbitration, including the arbitrator's fees, shall be subject to review on the application of either party by the Taxing Officer of the High Court of Justice."

Mr. HOGAN

I agree with that and I will accept it.

Mr. DOWDALL

I said before this point arose that I hoped the arbitrator would be an expensive man, and really where he may possibly decide to some extent in favour of the applicant, that the process should be made a fairly costly one.

AN CATHAOIRLEACH

I think you may be fairly sure it will.

Amendment, as amended, put and agreed to.

Mr. HOGAN

There is one other point as to the qualifications of the inspectors. Senator Sir John Keane raised the question yesterday of some definition as to the qualifications of the inspectors, and I am suggesting the very lowest definition now. There is an amendment to insert before Section 48 a new section as follows:—

"No person shall be authorised to act as inspector under this Act unless and until the Minister is satisfied that he is qualified to act as inspector for this purpose."

Senator Sir John Keane said that the qualifications of an inspector should be at least those of a creamery inspector. The inspector of a creamery might be a different class of an inspector to the man who would be sent down to examine boxes at the ports, and you require a variety of qualifications. You could not confine the qualifications to the qualifications of one of our present creamery inspectors; neither could you say that the qualification shall be in addition to the existing qualifications for creamery inspectors, because it would be absurd to do so. Your inspector might be an engineer, and it would be absurd to require that he should have the qualifications of a creamery inspector. The word inspector is used in all sorts and conditions of contexts in the case of every Bill. He will require a variety of qualifications, and it will be quite impossible in view of the different sorts of inspectors to provide that they shall have at least the qualifications of a creamery inspector. That would not be worth much. It is already implicit in the Bill itself. I could not do anything further in view of the qualifications I have put forward.

AN CATHAOIRLEACH

Is that to go in?

Mr. HOGAN

It is implicit in the Bill already.

Sir JOHN KEANE

It really means nothing.

AN CATHAOIRLEACH

The Minister himself is of opinion that it does not mean anything.

Sir JOHN KEANE

I see the difficulty. It must be left to administrative action. It is most important that people sent round on technical matters should be people who are fully competent to explain what they are sent for.

Amendment withdrawn.

Mr. HOGAN

There are two small drafting amendments which I want to put in. One is in the First Schedule, page 29, line 55, to insert an asterisk before the letter "a."

Amendment put and agreed to.

Mr. HOGAN

In the amendment to Section 19, adopted at a different stage, to insert after the word "with" the words "the prescribed conditions and subject to and in accordance with"; it then reads: "and in accordance with the prescribed conditions and subject to and in accordance with the provisions of the Sale of Food and Drugs Acts, 1875 to 1907."

AN CATHAOIRLEACH

This is purely a formal amendment.

Amendment put and agreed to.

Mr. HOGAN

Senator Brown suggested and I agreed on the Committee Stage in the amended Section 3 to substitute the word "physically" for the word "structurally." That was agreed to, but as the word "physically" is in fact wider than "structurally" and as the word "structurally" occurs in three or four other places in the Bill, I am asking Senator Brown's leave, for the sake of uniformity, to go back to the original word "structurally" and allow me to insert that in Section 3, which is already passed.

Mr. BROWN

I am willing that that should be done. I think the provision made in other parts of the Bill meets the point I wanted, because in another portion of the Bill, he has the right to have the premises kept free from contamination, which might not be the result of "structural" conditions at all, but might arise from something else. It will now read: "It shall be structurally suited for the manufacture."

Amendment put and agreed to.

Question—"That the Bill be considered on Report" put, and agreed to.

The Seanad rose at 6.40 p.m., until 2.30 p.m. on Friday, the 28th November.