Vol. 19 No. 7
Government amendments Nos. 1 and 2:—
1. Section 9, sub-section (1). To delete the word "both" in line 28, page 4, and to substitute therefor the word "all".
2. Section 9, sub-section (1). To delete sub-paragraph (iii), inserted in Committee, and to substitute therefor a new sub-paragraph as follows:—
(iii) a majority of the directors (other than a managing director giving the whole of his time to his duties as such director) of the owning body corporate are nationals of Saorstát Eireann; or
I move the amendments.
Amendments Nos. 1 and 2 are the same in effect as the amendment which was inserted in Committee on the motion of Senator Douglas. The amendment has been redrafted by the Parliamentary draftsman.
I have no objection to the change.
As an indication of the public interest in and, I suggest, apprehension about this amendment, I might mention that, although there are no papers and little is known of what is happening here, I have been approached by three persons who are very much concerned at the principle embodied in these amendments. Therefore I feel it my duty to ask the House to reconsider the matter. There was no division on the amendment in Committee Stage and there was not a very full House. Now that we have a better House, I ask Senators to reconsider the position. Those who were here will probably remember and those who were not here may be impressed by the diversity of support which this amendment got. Senator Comyn opposed it and so did Senator Milroy and I—three Senators who are rarely in agreement. Although only a week has elapsed, the Seanad may be prepared, on second thoughts, to revise its attitude on this principle. It seems to be a limitation of the rights of shareholders to appoint whom they like to manage their business. It is the first real direct invasion by the Government, or rather by the Legislature, of the sphere of actual control, or rather management. It means imposing conditions of management on the proprietors and I think that is altogether undesirable; it is narrowing and putting a limitation upon efficiency. We want to attract all the brains we can get to the management of industry. I think the arguments, such as they are, are fully understood by the House and I will ask Senators to reconsider their attitude.
I think the correction which Senator Sir John Keane made in the course of his speech was a wise one. He said the Government is responsible for this and then he corrected himself and said the Legislature. I think he is right; it is the Legislature that will be responsible for this when it becomes the law. There is nothing so clear as this, that the Minister washed his hands out of this amendment.
I agree.
I would like to point out to the House, in view of what Senator Sir John Keane has said, that it is open to any company to have any managing director or directors that it likes. As I already indicated when this amendment was being discussed in the first instance, if we are ever to get control this is an amendment that is indispensable.
On behalf of Senator Robinson I beg to move amendment No. 3:—
3. Section 12 (being the new section inserted in Committee). To delete the section and to substitute therefor a new section as follows:—
12.—(1) As soon as may be after the passing of this Act the Minister shall establish and shall thereafter maintain a register (in this section referred to as the said register) of new manufacture licence granted under this Act.
(2) Immediately upon the establishment of the said register the Minister shall enter therein all new manufacture licence granted under the Principal Act before the passing of this Act, and whenever a new manufacture licence is granted after the passing of this Act the Minister shall forthwith enter such licence in the said register.
(3) Every entry of a new manufacture licence in the said register shall include a statement of the name of the person to whom such licence was granted, the article, material, or substance to which such licence relates, and the thing or things which the licensee under such licence is authorised by such licence to do.
(4) The said register shall be kept at such place in the City of Dublin as the Minister shall direct and shall be open to inspection by the public during the prescribed hours on every day (except Sundays and bank holidays) on payment of the prescribed fee.
During the discussion of this Bill in Committee an amendment was inserted requiring the Minister to publish in the Official Gazette the name of any person to whom a licence is issued and particulars as to the subject of the licence and requiring him, in addition, to publish within three months similar particulars concerning any licence issued under the Principal Act. Senator Douglas, who moved the amendment, and other Senators, including Senator Johnson, indicated in their remarks that they would be satisfied with and, in fact, they would prefer, an arrangement by which these particulars concerning each licence would be inserted in a register to be kept by the Minister for Industry and Commerce, and which would be open to inspection by members of the public on payment of a small fee. I think that would be the preferable course and, consequently, I arranged to have this amendment drafted. It provides for the maintenance of a register, the insertion in it of the same particulars as were mentioned in the amendment passed in Committee and the availability of that register for inspection by members of the public every day, during hours to be prescribed, on payment of a fee. I recommend the amendment to the Seanad.
What the Minister has stated is quite correct, so far as my remarks on the Committee Stage were concerned. The principle, which I still believe is right, that the public should be able to know to whom a licence is given, is set out in this amendment just as it was in the original amendment. I am inclined to think that this is a preferable method. It is much better to pay a small fee to those concerned, who have a proper interest in the matter, rather than to have single names published from time to time. If the House agrees, I have no objection to the substitution of this amendment for the amendment carried on the Committee Stage. The principle is exactly the same.
Is the prescribed fee arranged?
There is power in the Bill for prescribing a fee.
I presume the fee is somewhat the same as in the case of the registration of deeds, etc.?
Quite so.
I move amendment No. 4:—
Section 16, sub-section (6) (as amended in Committee). To delete the words "a resolution has been passed by both Houses of the Oireachtas" and to substitute therefor the words "resolution have been passed by each House of the Oireachtas."
Amendments Nos. 4, 5 and 6 are really verbal changes in respect of an amendment which was carried in Committee.
I move amendment No.5:—
Section 16, sub-section (7) (as amended in Committee). To delete the words "resolution passed by both Houses of the Oireachtas" and to substitute therefor the words "resolutions passed by each House of the Oireachtas."
Government amendment No.6.
I move:—
Section 16, sub-section (7). To delete the words "such resolution" in line 1 and to substitute therefor the words "whichever of such resolutions is later passed."
Government amendment No. 7.
I move:—
Section 20. To add at the end of the section a new sub-section as follows:—
(2) Where the Minister refuses to grant a reserved commodity manufacture licence to an applicant who claims that he was, on the date of the application or on the day before the appointed day (whichever is the earlier), manufacturing the reserved commodity to which such application related, the following provisions shall have effect, that is to say:—
(a) such applicant may, within three months after such refusal, apply in a summary manner to the High Court for a declaration that such licence should be granted to him;
(b) the High Court, if it is satisfied that such applicant was so manufacturing such reserved commodity as aforesaid and that having regard to all the circumstances of the case it is just and equitable that such licence should be granted to such applicant, may make a declaration that such licence should be granted to such applicant accordingly;
(c) whenever the High Court makes an order under this section declaring that a reserved commodity manufacture licence should be granted to a person, the Minister shall, as soon as conveniently may be, grant under and in accordance with this Act such licence to such person.
I indicated during the discussion in Committee my intention of having this amendment moved on the Report Stage, in order to allay certain apprehensions which were aroused concerning the possible undesirable effects of Part III of the Bill. Senators will remember that it was stated that it might be possible that some person engaged in manufacturing a commodity, declared by order to be a reserved commodity, might be refused a licence to continue manufacturing, and consequently be the victim of an injustice. A resolution moved in Committee provided for compensation in such cases, but I indicated that I would prefer to provide that such person should be given the statutory right to a licence, rather than that the question of compensation should be introduced. This amendment provides that when the Minister for Industry and Commerce refuses a licence under Part III, a person who claims to have been manufacturing a commodity declared a reserved commodity may appeal to the High Court within three months after the refusal for a declaration that such licence should be granted to him. If the High Court, having heard the applicant, is satisfied that he was engaged in manufacturing a commodity, and having regard to all the circumstances, considers that it is just and equitable that he should be given a licence, the court may make a declaration to that effect. If the High Court makes such a declaration the Minister, as soon as conveniently may be, shall grant the licence.
I do not want to anticipate or to prejudice what I may say on another motion later on, but I would like the Minister to deal with a certain aspect of these words "reserved commodity." It appears in practice that the Minister can create a reserved commodity now, altogether outside the purview of this Bill. He has only to take an article which wants substantial capital to make, and then put a duty or a quota on imports and arrange with a manufacturer to manufacture. Although we know that it will not be illegal for nationals to compete, I would like to have generally, if possible, an assurance from the Minister that he will not use these powers in that way, practically to create a reserved commodity indirectly. The Minister must agree that that could be done in the way I have indicated. It would be undesirable if all this machinery now being set up could be circumvented on account of technical defects or flaws in the law.
This amendment in this form rather surprised me. I wonder if the Minister is really in favour of it in the form in which it is drafted, if my reading of it is correct. I understood from the Minister that it was his intention to provide a right for any person manufacturing a commodity, at any rate for sale to the public, that he would have the right to receive a licence, and that the only question in dispute would be between that person and the Minister, as to whether in fact he was really manufacturing at the time. If that was the intention, then it was quite right to provide that the High Court should decide whether he was really manufacturing or not. The amendment seems to me to create a principle which I do not think exists in any previous legislation, and which I would not like to have adopted, although I do not oppose it in this form without further consideration. It seems to me that the High Court could virtually decide what the policy of the Department is. Clause (b) says:
The High Court, if it is satisfied that such applicant was so manufacturing such reserved commodity as aforesaid and that having regard to all the circumstances of the case it is just and equitable that such licence should be granted to such applicant, may make a declaration that such licence should be granted...
That is a matter of fact which the High Court could decide between the applicant and the Minister, if there was a dispute. But having so decided, they might then go into what is a matter of Government policy, and decide whether such applicant should have a licence. So far that is a matter for the Minister or for the Government. Here the High Court, without any indication of what policy they are adopting in principle, or what would be regarded as just and equitable, could conceivably say to an applicant manufacturing in a small way that the Government had created such and such a commodity a reserved commodity. They might say: "We do not like him, because we do not think him financially strong enough, or we do not like his way of business, and, therefore, we do not think he ought to get a licence in addition to the new firm." I do not like the High Court being placed in that position. I would like to confine the High Court to an interpretation of fact or law. That would be the better way. As this section is only expected to affect very few, if any, cases, it would be better to leave it so that if anyone was manufacturing at the time, and wanted a licence, he was entitled to it. Let the High Court decide whether in fact he was manufacturing or not. I would be prepared to go further, and to say that he was manufacturing for sale to the public. I would not give this right to anyone manufacturing in his own home or for experimental purposes, but I would like to safeguard the position of anyone manufacturing for sale to the public. I suggest to the Minister that it would be wiser to leave the section as it was, having regard to all the circumstances.
This amendment is introducing a new principle. In the Industrial and Commercial Property Act there is a somewhat similar appeal to the High Court, but, in that case, the principle upon which the High Court would decide is whether it was just and equitable. This does not seem to be an exact parallel. I do not know of any other case where the High Court would decide what would be a matter of Departmental policy. Whilst something should be there in order to allay apprehension, and while I do not oppose the amendment, I question if it is wise to include these words and to let the High Court decide whether a person was a manufacturer or not. I also suggest that the words "for sale to the public" might be a wise safeguard. While the amendment does not harm, we should realise that it is not an absolute safeguard. There is not the slightest doubt that anyone manufacturing in a small way will be in a pretty helpless position against the position of a large firm manufacturing for the whole country if the Government creates a commodity a reserved commodity. While it is better that some amendment should be introduced, I ask the Minister carefully to consider the effects of it.
I am sure the Minister has carefully considered the phraseology of the amendment, and I cannot agree with what Senator Douglas has said that the words "just and equitable" should be excluded from the section. He says that the courts are not accustomed to determine matters of that kind. Why, from the sitting until the rising of the courts, day in and day out, that is what they are always deciding—whether a thing is just and equitable. It may be that a man who has been manufacturing a reserved commodity, may have been manufacturing it in such circumstances that it is not right that he should continue, or that the inconvenience of his continuing to manufacture that commodity would far outweigh any advantage that would accrue to him or to anyone else by its manufacture. That is a question which the court is competent to consider. The court is also competent to consider whether a man is seriously injured, whether injustice is done to him, and in case he has no strict legal right, whether it is equitable that he should be deprived of his business or, on the other hand, that he should be allowed to continue it.
I find, creeping into the debates in this Assembly, a desire to over-refine and explain what is obvious. Two or three days ago we were asked to explain one of the plainest legal phrases known to the law. Now there seems to be an idea that these words "just and equitable" are beyond the scope of courts and judges. I can assure the Seanad that there is no tribunal better fitted to determine the question of fact, whether the manufacture of the commodity was going on at a particular date, and also the other fact, whether it would be just and equitable to allow the person to continue that manufacture, than the tribunals which have been determining the meaning and the application of these words on every day of every term during which the court sits.
There is another matter in the section which I am surprised was not adverted in the very meticulous perusal which this and other sections have received. What about the word "commodity"? Does "commodity" always mean the same thing; and will it mean the same thing in the progress of manufacturing and industrial development? I do not wish to raise any questions as to the form of this section, but if I were inclined to be critical I would probably ask for some explanation of the word "commodity," or whether there should not be some explanatory phrase after that word "commodity" indicating that the article manufactured at the particular date was a commodity of the same or a like description. However, the point has not been raised, and I am certainly not going to raise it now.
What I have to say might not be said to be very strictly appropriate to this amendment. But I want to ask the Minister if the position will be that, once having reserved a commodity, unless he fixes a limit of time under Section 16 (4), it remains for ever a reserved commodity. Is there any means whatever of withdrawing it from reservation?
It was contemplated originally that once an article was declared to be a reserved commodity it should not be possible for the Executive Council to alter that position without promoting legislation and securing the passage of that legislation through both Houses of the Oireachtas. The amendment giving power to limit the time during which an order might operate was inserted during the passage of the Bill through the Dáil following certain discussions. But if there is no limit of time prescribed when the order is being made, then the order remains indefinitely in force unless revoked by legislation.
On the various points raised, I should like to say merely this: Senator Sir John Keane is undoubtedly correct when he says that it is possible to make a commodity a reserved commodity in certain circumstances, without the aid of this legislation, by the imposition of restrictions upon the importations of that commodity following its manufacture here by one firm. In certain cases it is true that if one firm starts manufacturing a commodity it is unlikely that any other firm will do it, particularly if the market for the commodity is a limited one, or the capital required to undertake its manufacture is very great. It is that situation that is in fact the justification for Part III of the Bill.
In such circumstances, although there is a certain amount of effective power to impose conditions regarding price, quality, location, distribution, etc., there is no legal power to do so. If that situation were likely to arise, the Government would obviously have to consider the advisability of making such a commodity a reserved commodity in order to get, under Part III of the Bill, the powers set out in Section 22; that is, power to require that certain conditions would be fulfilled with respect to meeting the requirements of the country with articles at a fixed maximum price and of a certain quality, employing Saorstát, nationals, using Saorstát materials, etc. It is because of that situation that in fact Part III of the Bill was largely devised.
I do not quite agree with Senator Douglas that the words in paragraph (b) to which he referred are unnecessary or are likely to operate in a manner unfair to a person who claims to be a manufacturer of a reserved commodity, who is refused a licence, and who applies to the High Court. I think there is no particular harm in giving the High Court the wider discretion which these words permit of. My feeling in that matter is accentuated by the fact that I firmly believe this particular new section will never be called into use. Part III of the Bill prescribes that no article can be declared to be a reserved commodity if it is being manufactured to any substantial extent in the country and I do not contemplate that at any time any article will be made a reserved commodity if there is anybody manufacturing it here. Consequently, a claim under the proposed new Section 20 is never likely to arise. If it does arise, I think the insertion of these words will give the court a discretion in doubtful cases of the nature indicated by a certain phrase used by Senator Comyn. There is a difficulty in determining what is a commodity.
Senators who have had experience of the operation of certain tariff resolutions know that the minutest description of a commodity contained in a resolution is often found to be inaccurate; to cover commodities not contemplated, or to exclude commodities which it was intended should be covered. On that account, it is always possible that some manufacturer might claim that his interests are being adversely affected by the making of a reserved commodity order, even though he is not making the precise commodity defined in the order, but claims to be making some commodity so closely akin to that as to be of the same description. The giving of the wider powers to the High Court to determine whether it is in fact just and equitable that that manufacturer should be refused a licence is, I think justifiable under the circumstances.
Does it really mean that an aggrieved person will have an appeal from the Minister's judgment to the courts?
Not any person. A person has an appeal on the ground that although manufacturing this commodity he was refused a licence.
An interested person. It means taking so much autocratic power from the Minister. I do not say that the Minister would act wrongly, but I think it would be very useful to have the Minister's view backed up by a second tribunal such as a court may be.
