I would like to have some information about this Bill before we proceed to discuss it. I was hoping that someone would justify the Bill before we were asked to proceed to comment on it. I think that should be the procedure. I would like to draw attention even at this stage to Section 6, which I think should be amended. I am not dealing now with the principle of the Bill. I am dealing with that portion of the Bill which gives authority to the Minister to make regulations. Sub-section (3) provides that any regulation made under this section may provide that any contravention shall be an offence triable summarily and may prescribe the penalty which may be inflicted. That may be following the precedent of the excise laws, but I do not think it is a principle we should continue to follow without some criticism. A considerable amount of public attention has been drawn to the effect of the excise laws recently, and as to the way penalties are prescribed by regulations, which regulations have not been at any time submitted to the Legislature. The penalties are prescribed in the regulations. I think that an abrogation of the responsibilities of the Legislature, and the least we should ask for is, before any regulations become effective that they shall have the formal approval of both Houses of the Oireachtas. I am raising the point because of the indication that it is proposed to take all stages of the Bill to-day. I want, at least, to secure that a change in this section in the direction I have indicated shall be inserted during the Committee Stage.
Totalisator Bill, 1929—Second Stage.
I am sorry I was not in for the beginning of Senator Johnson's speech because, from the legal point of view, I would have a number of very serious objections to this Bill. I will not dwell upon the point raised by Senator Johnson which relates to the rules to be made under Clause 6, except to say this, that it is the first time that I have ever seen in any legislation where there was Parliamentary government, power given a particular Department or its officers to make laws which will, when made, have the effect of repealing portion of the criminal law. The second objection I have to the regulations is that they purport to authorise excise penalties, that is, taxation. As Senators will understand that is a vice in this Bill of the greatest magnitude. I will only add in reference to that clause that we have on former occasions called attention to and expressed our unanimous disapproval of legislation by Departments as an encroachment on the privileges of Parliament. I think Senator Johnson has already dealt with that clause fully, but I have objections of a more serious character to other clauses in the Bill. Clause 3 provides that the Minister may, if he thinks fit, issue a licence. That is most unusual. It is unusual that a Minister should issue licences in any circumstances. I do not think the Chancellor of Exchequer in England has ever issued a licence for any purpose. It is the special function of the Department of Inland Revenue, which is, of course, under the control of the Minister but which is a permanent office. Therefore I think permanent officials should be the persons to issue the licences particularly when it is a case of receiving money for the licence, because the proposal in the Bill would entail as a Departmental matter the keeping of a set of revenue accounts in the office of the Minister for Finance, which is a thing unthinkable, and which I think the Minister, when he has further time to study it, will find not according to precedent and entirely wrong.
The discretion to issue a licence for a totalisator is given to the Minister. Certificates for the issue of licences by the Inland Revenue Commissioners have been given in a number of cases. Senators will remember the case of a publican's licence where a certificate has first to be issued that a person is a fit and proper person, qualified to receive a licence before the Revenue Commissioners can issue it and receive the money. That is a discretion. In this Bill it is proposed to make it a Ministerial discretion, that is, a political discretion, that is political patronage and political favour. I think it ought to be a judicial discretion or, at least, a Ministerial discretion. I make these points because I think this is a matter in which I as a lawyer, and in which Senator Brown who is also a lawyer, are especially concerned. Without being expressly deputed to do it by the Seanad, we regard it as part of any special function we may have to peruse this legislation with a view to seeing that it is in accordance with constitutional precedent.
The third objection I have is. I think, the most serious of all. The issue of a totalisator licence is under this Bill a Ministerial discretion—a question of patronage. If I were in any way connected with or responsible for this I would keep it as far away from the patronage of the totalisator as I possibly could. But the main objection I have is this: that not alone is the Minister to do the work of issuing the licence, receiving the money, and exercising patronage, but he is the man to fix the amount of the duty—a most extraordinary provision. I ask the Seanad to look into this Bill, in view of what I have said. Section 3, sub-section (3) says: "The Minister may charge such a fee for the grant of any totalisator licence as he shall think fit." There you have a charge at the discretion of the very Minister who is entrusted with the revenues of the country. Of course, the legislature has to place trust in its Ministers, but never in any country has the Chancellor of the Exchequer or the Minister for Finance been given power to charge a penny more or a penny less than the scale fixed by Parliament. That is one matter in respect of which Parliament looks with—I will not say suspicion, but with the greatest vigilance on the act of the Chancellor of the Exchequer. I do not know of any single instance in any law where the amount of duty can be charged at the discretion of any man. It is always fixed to the last halfpenny by schedule.
I mention these matters because they are Parliamentary matters. It is our duty to be vigilant with regard to legislation. There is a constant tendency on the part of departments, without any ill-will on their part—it seems to be a sort of force of nature or force of circumstances urging them on—to nip here and there, and to nibble at the powers of Parliament, and there is a constant struggle by Parliament to defend its own power, particularly in respect of this matter of taxation and licences. What I say I say simply as a lawyer. This Bill is objectionable to me from that point of view. I do not know whether what I have said will be considered or not by Ministers, or whether they consider, having regard to what I have said, that it is possible to modify this Bill so as to make it conformable with the Constitution. If it is, perhaps it will be amended. My own inclination would be, without wishing in any way to obstruct, to reject this Bill altogether now, and let them come forward again with a proper Bill, conforming to the laws, with a proper schedule for licence duty or licence fee, whatever they call it, and with proper penal regulations included in it. If these regulations, as they undoubtedly will, have the effect of repealing the positive law, then they ought to come before Parliament in the form of a section in a Bill. Can this Bill be amended? Does the Seanad require it to be amended? My own impression is that in present circumstances this Bill ought to be rejected, but perhaps the Minister and his adviser or the Seanad consider that it can be amended, if, in their opinion, it ought to be amended. I have registered my objection to the form of this Bill from Clause 3 down to the end.
To some extent I agree with Senator Johnson and Senator Comyn. There is a certain theoretical objection to parts of the Bill. I do not see any objection to the issue of the licence by the Minister, because that really means that it will be issued by the Department for which he is responsible. But I agree with both Senators that it is not a constitutional method to allow the Minister, without even the consent of the House, to fix a fee which is a tax and which will go into the Exchequer. To that extent I think the Bill is unconstitutional, but what I would suggest is, that it can be amended by making the licence fee, and also the penalties, which ought never to be made by the Minister without reference to the Houses by regulation or by order of the Minister and having that order submitted to both Houses, not to be effective until a resolution has been passed.
There is a provision in the Betting Bill in connection with this matter, and it is considered advisable to have this Bill introduced and passed into law, so as to allow for the setting up of the totalisator. It was mentioned in the other House that it was proposed to grant a licence to the Turf Club and to the Irish National Hunt Steeplechase Committee. The totalisator will be managed by a committee consisting of three members of the Turf Club, three members of the Irish National Hunt Steeplechase Committee, one member representing metropolitan race meetings, one member representing provincial race meetings, two members representing breeders, owners and trainers and such Finance representatives as are necessary. The Finance representative would have no power of voting, and no personal financial interest in the totalisator, but would be eligible for election to the committee. That is as regards management. It is not proposed to deal out licences in the manner outlined by Senator Comyn, because that would not be a practical proposition, but to grant one licence. Power is taken in the Bill, if it is impossible to have such an organisation as I have outlined, to have it done by the Revenue Commissioners. That will be operative only in case the other method is impracticable. I believe it is practicable. I believe steps will be taken to work this measure and to set up the totalisator. That is the general desire of those who are closely associated with the very important industry of horse breeding. That is as regards the licence. If one were to consider the granting of a number of licences, the objection raised by Senator Comyn would be a reasonable objection.
The point he has put about political patronage is rather childish, having regard to what I have said, and scarcely arises at all. Is it political patronage to give to the persons who are most intimately and vitally concerned with racing, and with horse breeding, and with race meetings generally, the management of the totalisator? I rather think not. I think if one were looking around for persons who would be anxious to get this right, if there were a number of them in competition, and if one could discriminate between them for one cause or another, political or otherwise, and exercise a preference in regard to any one of them, there might possibly be some grounds for the Senator's objection. But I think he is either utterly unaware of the circumstances, that he has not read the proceedings in the Dáil, that he knows nothing about racing, and that he has only heard of horse breeding when he committed himself to the statement he has made.
As to the regulations, let us consider what is the position. It is advisable that the totalisator should be set up. There is an impression amongst people that unless some such system is worked—and it has been worked with remarkable success in other countries—the future of racing will be very seriously interfered with, and possibly some damage might accrue to the horse breeding industry. My own view is—and I give it for what it is worth; I do not pretend for a moment to have the knowledge of this matter that Senator Parkinson has—that our climate and our soil is such that we have opportunities here for horse breeding which would survive even the fall of racing, but I would not be so bold as to say that the damage that would be done to horse breeding, if horse racing were almost eliminated here, would not be very considerable indeed. It is the race meetings which we have here which form the great opportunity for showing the class of horses, the stamina, the speed and everything that goes to make our horses so well known all over the world.
Section 6 gives the Minister power to make regulations, by order, for controlling and regulating the setting up, maintenance and for the working of totalisators under the licence. It also gives power to the Minister to make regulations prescribing a penalty. A person charged with an offence under this section is triable, and the penalty, if he is convicted, is an excise penalty, fixed by the Minister. The Minister is responsible to Parliament, which can take him to task in respect of a penalty which would be considered oppressive or unfair, and while it might be possible, if circumstances were otherwise, to have a much more elaborate number of sections dealing with the matter, the proposal here is one which meets the circumstances in a manner which still retains Parliamentary control over the whole procedure. The Minister is always responsible to Parliament. He can be made to answer for anything in connection with this matter. It is not the Revenue Commissioners who will impose the penalty; it is a court, and I think, having regard to that, that the Senator's fears are rather exaggerated.
It was very difficult for anyone to follow the President's remarks. He spoke in a whisper. I was not able to follow him, but it would seem to me that he has evaded some of the principal points. Take the last point. He argued that because the Minister is responsible to Parliament then it is all right for him to prescribe penalties in regard to offences under the Bill. On the same argument one might say that because the Minister for Justice is responsible to Parliament he might prescribe the whole of the criminal court, prescribe penalties for sedition, for murder, robbery, and everything else, and that it was quite all right because he could be impeached before Parliament and could be made to answer for his conduct. I do not think that is an argument that could hold at all in this case.
Senator Brown has made a suggestion by which we could, to a certain extent, make the Bill constitutional in this respect, by making it necessary that any regulations he made should be approved of by resolution of both Houses before they become effective. I daresay the Ministry has failed to prescribe penalties in the schedule because of the haste with which they desire to get this Bill through. It would require some consideration to fix the various penalties to be imposed. I do not think a mere question of expediency should induce the House to pass a Bill which is definitely unconstitutional to that extent. I hope that the subsequent motion to suspend the Standing Orders in the name of Senator Parkinson will not be passed because it is very desirable that the Bill should be amended at any rate in the way suggested by Senator Brown.
I suppose no one is opposed to the idea of having the totalisator or having racing. The President has stated that horse-breeding here is dependent to a great extent on race meetings and that if racing were stopped the breeding of horses would probably fall through. We are all agreed that anything that can be done for the promotion of horse racing should be done. I think the totalisator has advantages over bookmakers because it will get people to bet on the course. The great evil of betting, as far as I know, is that people who never saw a horse in their lives, and who would not know his head from his tail, go into bookmakers' offices and make bets. That is pure gambling, whereas a person who goes to see races probably takes an interest in racing and in horse breeding. We are all anxious to have something done in this matter. When two lawyers who are on different sides generally are agreed about this it requires grave consideration. We should not hand over to Ministers power which they have never before exercised or have rarely exercised. As Senator O'Farrell stated, we and the Dáil might just as well meet after an election and hand over all the affairs to nominated Ministers and then retire for five years, letting the Ministers do what they liked. That would be the ultimate result of the President's suggestion. It seems to be quite clear this Bill can be amended so as to make it constitutional. Everyone wishes that to be done, and I think it would be helpful if it was done.
Under the circumstances I do not propose to ask for the suspension of the Standing Orders. I would like to make a few remarks for the purpose of enlightening Senators who may not understand the purpose of the Totalisator Bill, what it is for and what it means. Under the Bill a licence will be granted by the Minister to a non-proprietary body, which will handle and work the totalisator in one interest and one interest only. It will provide some revenue for the State, and it will provide a very considerable revenue for breeders and people who own and run horses. No one connected with the control board can derive any salary or any revenue or have any financial interest in the machine. The machine, as I stated, is to be non-proprietary and run for one interest and one interest only— the horse-breeding industry and for the general uplifting of that business.
Are we to understand that the Bill can be amended in accordance with the suggestion made.
Cathaoirleach
Senator Parkinson is not now going to move his motion, so that before the Bill comes up again any Senator can put down an amendment to any section.