On the section, would the Parliamentary Secretary say whether a vehicle from which milk is sold is covered in the Bill? Under this section the expression "dairy" includes "any farm, farm house, cow shed, milk store, milk shop or other place from which milk is supplied on or for sale." I wonder does that cover a vehicle from which milk is sold?
Milk and Dairies Bill, 1934—Committee.
Sections 1 to 5 agreed to.
SECTION 6
Question proposed: "That Section 6 stand part of the Bill."
Yes. I think the position is made clear in sub-section (2) of Section 10 which provides:
Where a person carrying on the business of a dairyman in a sanitary district does not occupy any premises in such sanitary district for the purposes of such business, every vehicle which such person uses for the purposes of such business, etc.
shall be treated as a dairy.
Question put and agreed to.
The Leas-Chathaoirleach took the Chair.
SECTION 7.
Question proposed: "That Section 7 stand part of the Bill."
On the Second Reading of the Bill I drew attention to the provisions of this section and to their effect in rural districts by the exclusion of certain persons. Their exclusion will, I fear, have a serious effect and cut across the object of the Bill. I went to the trouble of getting some statistics which are typical of a rural district in which there is one large village with an area of three or four miles around.
There are two registered persons in this village already. One supplies only the free milk. There are six other people selling milk who could claim exemption under this section. One is a railway official, another a carpenter, another a seafaring man, and three farmers. They are selling milk and are unregistered. There is no check whatever on them. They will be able to claim exemption under this Bill on the ground that the selling of milk does not form part of their ordinary business. These people keep from two to six cows. I have not put down an amendment to delete the section, but I hope that the Parliamentary Secretary will consider the matter.
I should like to give an example of what may happen under the section as drafted. The registered person, other than the person selling the free milk, on one occasion ran short of milk and borrowed some from one of these unregistered people who are in the habit of selling milk when they have a surplus. He did not like the look of the milk and had it analysed. It was found to have only one and a half per cent. of butter-fat content. The milk sold in this way may be as dirty, as impure, as tubercular as may be, but under this section there will be no means of preventing that. I think that all people selling milk should make an effort to have it as pure and as good as possible, and that all should be bound by the regulations. There should not be exemptions for some people who sell milk. I hope the matter will be considered. If necessary I will introduce an amendment on Report for the deletion of the section.
Might I suggest that the objection made by Senator Miss Browne might be met if the word "ordinary" in paragraph (b) were deleted so that the paragraph would read: "The selling of milk does not form part of the business of the occupier of such farm."
I suggest to Senator Miss Browne that her argument does not apply if those people normally sell their milk for retail. This refers to the case where "surplus milk produced on a farm is occasionally sold to persons for consumption by such persons or their families and the selling of milk does not form part of the ordinary business of the occupier of such farm." In such a case the farm will not be deemed to be a dairy. I understood Senator Miss Browne to refer to the case of people who ordinarily sell their milk.
The section says "occasionally sold," and it may be only occasionally that they would have surplus milk to sell.
I suggest to the Parliamentary Secretary that he should leave the section as it is. If the suggestion made by Senator Miss Browne were to be put into effect it would impose hardship on a great many people throughout the country. It would mean that everybody would have to be licensed to sell. I know several small farmers and agricultural labourers who keep a cow. When they have a surplus of milk they sell portion of it to agricultural labourers and other people. It would be a great hardship on these people if they had to register and to comply with all the regulations. I can assure Senator Miss Browne that if her suggestion were to be put into operation the cure would be much worse than the disease.
Is it not also a great hardship on the person who has to register that, at certain seasons of the year, he should have competing against him people who are not obliged to register and therefore under no obligation to comply with the regulations made under this Bill? In the case that I refer to the registered person in that locality would have six unregistered people competing against him when milk is plentiful.
But that would only occur occasionally.
What is going to happen so far as the regular producers of milk are concerned? They are going to have competing against them people who will be under no obligation to comply with the provisions of this Bill in the matter of providing a clean milk supply. Is not the main purpose of the Bill to secure a clean milk supply for human consumption? Why should certain people be allowed from May to September to compete against registered suppliers and sell any kind of milk—milk deficient in butter-fat content and milk produced under dirty conditions? There will be no check whatever on these people.
There will, because this Bill does not abrogate the provisions of the Food and Drugs Act.
This Bill deals with an entirely different matter. If you already have machinery to ensure the provision of a clean and wholesome milk supply for the people, then where is the necessity for the introduction of this legislation? Why should the people to whom Senator Miss Browne has referred be permitted to supply unclean milk and milk deficient in butter fat content? Why should they be allowed to go into competition against people who will be obliged to comply with all the regulations made under this Bill? It may be asked what are they to do with their milk? Cannot they sell it as butter? Therefore they have another way of using up any surplus milk they have. If this section is allowed to go unamended, then the position we are going to have in this country is this: that during a certain portion of the year people who are being harassed by all sorts of regulations will be brought into competition with people who are free to produce milk under any conditions they wish. There is a great deal of talk about encouraging winter dairying. This Bill affords one means of doing that, but what Senator Counihan has urged is certainly one of the ways not to do it.
I am afraid the Senator has misread the section.
The Senator can put his own case.
The section speaks of surplus milk produced on a farm that is occasionally sold to persons for consumption by them or their families, and that "the selling of it does not form part of the ordinary business of the occupier of the farm." If what Senator O'Hanlon suggests did occur, then I believe that the people he has in mind would be regarded as selling milk as part of their ordinary business and would not get exemption, but here we are speaking of people who sell surplus milk. They only sell it occasionally. This section is not intended to apply to people selling big quantities of milk.
How does Senator Counihan assume that these people might have a fairly big quantity for sale? What happens in the case of many people is that they take the easiest course in the matter of milk production. They produce none during the winter. Their cows calve in the spring, and then for a certain period they have a flush of milk, a considerable surplus of it. They require a certain amount of it for their own use, and for the rearing of calves and so on. Still, they have a surplus supply which they proceed to market against the regular producers. The result is that the price of milk comes down for the regular producers. There is an over-supply of milk, and these people come in and compete against the regular producers. They may be supplying very unclean milk for human consumption.
From the administrative point, would the Parliamentary Secretary say how this is likely to work? How is a person going to be prevented from selling milk of this kind? How are you going to say that he is only selling milk occasionally, because it all hangs on that, or, at least, a great part of it hangs on it?
There is no doubt that the farmer in the position of the farmer to whom Senator O'Hanlon and Senator Counihan have referred is only occasionally selling milk, if he sells it only during the summer months.
I think the Parliamentary Secretary will have to be very clear with regard to how this is going to be administered down the country. It seems to me that the Bill is going to impose considerable expenditure on people in urban districts—let us forget about Dublin for the moment; it would be a healthy thing to do here occasionally—and in small towns which are not urban at all in complying with its terms, that is, if the consumers of milk are to get clean milk, which is the aim of the Bill. How can you expect a man to take the risk of extending his premises, procuring and purchasing the rather expensive machinery and getting the type of servant or workman, and paying them well, who are suitable for this kind of work if a pirate is to come in and send 10, 12 or 20 gallons of milk to his creamery and take in four, seven or ten gallons and sell them to people in the town? That is what I know goes on. It is taking place in the country at present and it will take place. There are people in every district in the country, and even in the creamery districts, sending a quantity of milk to their creameries and taking a smaller quantity to acquaintances— perhaps relatives or neighbours of theirs—who have gone into the town.
That is going to continue, and what the people who are really in the milk trade in the towns must ask themselves when confronted by this legislation and all the demands which its observance is going to put upon them, is what is this going to cost and is it worth it? Mind you, there are perhaps people in the milk trade to-day who will stand and consider whether they are going to remain in it or not. There is the possibility that the first effect of this legislation will be actually to create a shortage of milk in many of our urban centres and smaller towns. It seems to me that it will have to be clear from the beginning that people will have to be encouraged to go into the trade and to do it right, and that when they go in and become involved to the extent of putting considerable capital into it, they are going to be protected from individuals who are in it when it suits and out of it when it does not suit.
Might I endorse what Senator Baxter says and add that, from what I hear, I believe that in these rural districts the market is so small—a matter of five or six gallons— that it would pay these people much better to get out of business than to carry out the regulations. It must, of course, be remembered that it is only in the summer months, when a surplus of milk is to be had, that the milk supplier makes anything. Winter dairying up to the present does not pay, but the person who sells milk all the year round can make his profit in the summer months to cover the great expense of his winter feeding and management of cows.
According to Senator Baxter, my reading of the section is wrong, but I support his contention that nobody should be allowed to come in to sell 20 or 30 gallons. What I was contemplating was the selling of an occasional gallon or two. If the section means what Senator Baxter and Senator O'Hanlon say, I am in thorough agreement with them.
Leas-Cathaoirleach
That is, if it means, say, "seasonal" as distinct from "occasional."
I am more interested in quantities.
I thought we had understood this position fairly clearly, but it seems to me, from the trend of the discussion here to-day, that Senators have failed to grasp the real reason behind the inclusion of this section in the Bill. I quite admit that there are theoretical possibilities of abuse such as have been referred to.
These are actual facts——
Leas-Cathaoirleach
You ought not to interrupt, Senator.
I presume that, being in Committee, if there is anything the Senator has forgotten to say in the two speeches she has made, she will have the opportunity of making another. Undoubtedly, if we were to have perfect legislation referring to production and distribution of milk for human consumption, we should ensure that only milk of a certain standard of purity and nutritive value should be exposed for human consumption under any circumstances whatever. That would be the ideal thing, and if we were to be logical and to follow that argument to its logical conclusion, we should have to pursue the farmer into his own home and ensure that the milk which he produced on his own farm for the consumption of his own family should reach the same standard of purity, etc. as the milk which he exposed for sale. We cannot do that. I should be delighted if we could, and, sometime or other, we may reach it, but we have a tremendously long journey to travel before we can even approach such a condition of perfection in our milk production.
I am mainly concerned at the moment with raising the standard of production and purity of milk in the higher centres of population. The reason why this principle was introduced into the legislation at all was—and it has not been referred to by any Senator who has spoken on the Bill so far—that in certain parts of rural Ireland in which the small farmer—and there are very large areas of rural Ireland covered by the class I have in mind—has one cow and whose family are dependent on the milk of that cow for their domestic milk supply; that cow goes dry at a certain season of the year and his neighbour has a surplus of milk. This was introduced into the legislation in order to enable that man, who could not afford to get two cows and use their milk in rotation, to get milk from that neighbouring farmer who has that surplus. If we legislate so as to exclude that arrangement which is very extensively practised in rural Ireland, and even in the part of rural Ireland from which I come, we will inflict a very serious hardship on a very big section of the small farming community. What we will succeed in doing is to deprive the children of these small farmers of a milk supply and I certainly do not want to do that.
Might I direct the attention of the House to three points in relation to Section 7? In the first place, it must be surplus milk; in the second place, the supply must be occasional; and in the third place, it must not form part of the farmer's ordinary business of the production and sale of milk. I think he is fairly well circumscribed when you take these three conditions together—surplus milk, occasional supply and not forming part of his ordinary business. Undoubtedly, if a farmer were to avail of Section 7 to go in for a whole season's sale of milk and to go into the trade in competition with dairymen for the summer season and to get out in the winter season, he would not be allowed to do so. I do not think that interpretation can be put on Section 7, but it certainly is not intended. I think it was Senator Bagwell who asked who would enforce this section. The sanitary authority, of course. If there is an abuse under this section, it will be open to the sanitary authority, on the advice, presumably, of the county medical officer of health, to take proceedings against a farmer or dairyman who claims that he should have exemption under this section but who was not intended to be covered by the section at all.
The Parliamentary Secretary said that certain Senators misinterpreted the position. May I say, with great respect, that even after listening to his statement, certain Senators did not.
Leas-Cathaoirleach
That is a matter of opinion.
I am expressing my opinion.
You have spoken, and that is your opinion.
I did not say misrepresented; I might have said misinterpreted. I did not accuse any Senator of misrepresenting.
I am only attempting on this occasion to put forward my own personal opinion and nothing more, which I am entitled to do. The Parliamentary Secretary does not strengthen his case by citing extremes. The Parliamentary Secretary puts forward the point that, if we want to be logical, we should go to the extreme of going into the farmer's house and seeing that the milk supplied to the farmer's family is produced in conformity with these regulations. I am not suggesting that at all, and we do not get anywhere by being asked to follow such extremes as that. If the Parliamentary Secretary merely wants to produce a position in which the small man in a locality with one cow, which goes out of milk for a period of the year, wants to buy milk from his neighbour during that period, we want to meet him, and it should not be beyond his powers to amend his Bill in such a manner as to meet that position. On the other hand, I want to put forward the other case and to ask the Parliamentary Secretary to see our point of view and to meet us. The other point of view is that under the Bill as it exists, it is possible for people to produce occasionally, which means for a big portion of the season, milk beyond their own requirements, and to produce it not in their ordinary way of business at all. Their ordinary business may be beef production or the production of stores, and they may have a surplus of milk after they have fed the calves for a few months. Conforming in every way with the three points put up by the Parliamentary Secretary, there may be a fairly considerable amount of surplus milk in a locality produced under unclean conditions, deficient in butter-fat and thrown on the market at a time of the year when it is not required, in competition with the milk produced by men who have to conform with the regulations and produce clean milk fit in every way for human consumption.
That is the other case, and I am asking the Parliamentary Secretary to meet that. I would ask him to bear that in mind and to fall in with Senator Miss Browne's suggestion that, by the next stage, he might appreciate our point of view and meet us in an amendment. Our way of meeting it is the other way. It is quite probably the extreme, I concede, of not allowing these people to sell milk. I ask him to meet us some of the way. I am conceding something to the Minister's point of view. I admit that the case he puts forward is one against which we cannot argue, just the same as I want the concession from him that it is possible to do these things under the Bill. I would not expect the Parliamentary Secretary to be in favour of any legislation which would allow these things to be done. As Senator Baxter properly said, if this legislation is to be implemented in such a manner as to make it thoroughly effective, it is going to involve considerable capital expenditure, and if this expenditure is to be imposed on the producer of clean milk, surely the opportunity should be given to maintain the price he is getting up to the present, with, perhaps, a little more to cover his cost of production, rather than allowing perfectly unfair competition to bring down the price of milk.
What the Parliamentary Secretary told us was that if the word "occasional" was being regarded as "seasonal," the practice would be stopped. That is what I understood him to say. If the Minister would tell us at a later stage what administrative measures he is going to take in that respect, I think it would meet the case. If we were quite sure that it was going to be part of the Government's intention to see that the word "occasional" was really correctly interpreted, it looks as if the Parliamentary Secretary could meet the case.
Mr. Healy
I cannot visualise the type of dairyman or milk producer to which the Parliamentary Secretary refers. I have some experience of country areas in Cork and Kerry and of the fact that there are dairy farmers—probably dairy farmers is the wrong term—farmers who manufacture butter, and there are farm labourers in the locality; and are these measures to deprive the labourers and their children of nourishing milk because the local dairyman is not a licensed dairyman? I think the Parliamentary Secretary should remember that during winter time, in the South of Ireland at any rate, milk is a very scarce commodity. We are now learning the necessity of milk as a food for young people and we ought not to cut out the milk supply to these labourers children by any strong regulations.
Arising out of the Parliamentary Secretary's answer to my question, I must say this is a really difficult matter. It is difficult both ways, to meet the small man and the unfair competition, and the whole thing hinges on the administration. The Parliamentary Secretary said that the health authority would administer this section. Of course it is a curious quandary because of the situation envisaged by Senator Miss Browne, as it would be in the form of laying information that the law was being broken. That is a rather difficult thing for the health authority to have to deal with. It has nothing to do with the purity of the milk; it is a question whether a man is working according to the law and I think that the Parliamentary Secretary ought to take time to further consider this very difficult point.
I suggest to the Parliamentary Secretary that the major question to be met here is the quantity and not the occasional supplying of milk. Quantity and the word occasional can have very wide meanings. A couple of years ago, you may remember, cows became very cheap and a number of people got into dairying for six months or even for three or four months within a few miles of Dublin and undersold the regular dairy suppliers. If that could happen under this Bill it would be a very serious matter, and I suggest that the Minister ought to accept the amendment or draft an amendment himself to limit the quantity, which might meet his point in this difficulty. I think it would be a great pity if the thing was made in such a way that no one could sell milk without being registered, and I know it is essential for farmers and agricultural labourers to keep a cow.
To my mind the question is whether the drafting covers the intention of the Parliamentary Secretary. It seems from the statement of Senator Brown that occasional might cover seasonal trade. I thought occasional was occasional but as a lawyer has indicated it might cover three or four months of the year I suggest to the Parliamentary Secretary that he ought to look into it from the point of view of drafting and to see whether the desires of himself and his critics cannot be met by re-drafting.
The man whom the Parliamentary Secretary wants to protect is the man with the one cow. If I send my milk to the creamery can I supply that man who has only one cow?
A Senator
No.
I am sending my milk to the creamery. I am not drawing any milk into the town. Can a man purchase milk from me or must he go to someone else? That struck me about it when the Parliamentary Secretary raised the point. I think there are difficulties which the Parliamentary Secretary might consider on the next stage and let us leave the section as it is to-day. Perhaps those interested might try to meet the difficulty by drafting amendments but certainly as it is the section seems loose and wide and I believe vague and will create considerable difficulties.
If the section can be improved I will be very happy to accept any amendment. We did consider the question of quantity before this particular draft of the amendment was passed but found that we could not fix quantities because of the lack of uniform conditions, quantities that would suit one area would be altogether inadequate in another area. I would be glad if the Senators would table a number of amendments and we could hammer out something better on the next stage.
I suggest that there could possibly be an amendment which would exclude the case of dealing with producers in a different manner from the milk vendor.
Perhaps Senator Lynch will try to draft it.
I promise to do it and suggest it to you at the next sitting.
Section 7 put and agreed to.
Section 12 to 19 inclusive, put and agreed to.
SECTION 20.
(1) A person—
(a) who sells milk to persons who are registered proprietors, within the meaning of the Dairy Produce Acts, 1924 to 1934, of premises registered under the said Acts, and who are holders of special designation licences granted under Part IV of this Act, and
(b) who sells milk to no other persons,
shall be deemed for the purposes of this Part of this Act not to carry on the business of dairyman.
(2) The Minister may, with the consent of the Minister for Agriculture, make at any time an Order declaring that sub-section (1) of this section shall cease to be in force on and after a specified date and thereupon on and after such date the said sub-section (1) shall cease to be in force.
(3) A person who sells milk for consumption on the premises in which it is sold and not elsewhere shall be deemed for the purposes of this Part of this Act not to carry on the business of a dairyman.
I move amendment No. 1:—
To delete sub-sections (1) and (2).
This amendment deals with exemption of farmers who supply milk to creameries which, instead of making it into butter, become milk vendors and sell it in a city. The object I have in mind is to remove that exemption and to bring them under the regulations that apply to dairymen. It is well known to members of public boards in Dublin City and County that there is a very efficient staff of veterinary inspectors and assistants in charge of the City of Dublin, and also in the County of Dublin to carry out the work of milk inspection. If that is the right thing to do, surely it is not proper for the State to permit outsiders, men living in counties contiguous to Dublin, to sell their milk in competition with producers who have to comply with the regulations of the law. There are five or six public companies getting milk from Counties Meath, Kildare, Wicklow, Louth, Wexford and County Dublin itself. They are registered producers of milk which is brought to depots, pasteurised, and sold, and if this Bill becomes law the position of these companies will be seriously affected, because outsiders can simply turn themselves into milk producers and buy milk at 3½d. a gallon and send it into the City of Dublin in competition with people who pay 9d. or 6d. or 8d., as the case may be.
We do not object to that particular opposition. What we ask is that when they enter that trade they should be made conform to the same conditions as those producers who are now engaged in the business. Therefore, I am asking the House to delete the exemption of these farmers supplying milk to creameries and becoming milk purveyors in the sense that they were originally.
Leas-Cathaoirleach
The effect of what you move is that sub-section (1) should come into operation immediately?
You could put it that way.
The Parliamentary Secretary must be in agreement with Senator Wilson, because he says in the Bill:—
The Minister may, with the consent of the Minister for Agriculture, make at any time an Order declaring that sub-section (1) of this section shall cease to be in force ....
I think the Parliamentary Secretary must see the point that Senator Wilson has already made. I think he has made a very strong case for the deletion of the sub-sections. I would ask the Minister to consider the points raised as, in my opinion, they are only reasonable. Senator Wilson is asking that everybody supplying milk in the same district should be put on the same level. This question does not concern Dublin only. It concerns every town and city in the Free State, because the same thing applies to those towns and cities as well as to Dublin, and the people in those parts of the country who are supplying milk continually should be in the same position as the dairyman supplying milk in the whole area around Dublin. I think there are strong arguments to support the Senator's contentions.
Mr. Healy
I think the big question is the difference in price we find for milk in contracts in the City of Dublin. At the meeting recently of a public board of which I am a member, tenders for milk were put in at 11d. per gallon. I have read reports of contract prices in the Dublin Union showing the price per gallon was 7½d. There is a very big difference between 7½d. and 11d. per gallon. Unquestionably, the cow keepers in Dublin are paying heavier rents, and are under possibly more strict supervision, so that if the same position does not obtain in other towns the Dublin producer is placed in an unfavourable position. I have a certain amount of sympathy with Senator Wilson's point of view as regards the County Dublin producers.
In the first place, Senators will observe that the exclusion of creameries from the full scope of the Bill is a temporary exclusion and that at such time as the Minister may fix in consultation with the Minister for Agriculture, creameries engaged in the sale of milk for human consumption will be brought within the full terms of the Bill. I might perhaps point out that, in the main, creameries are engaged in the manufacture of milk into butter and cheese and it is only, I think, in exceptional circumstances that a creamery enters into competition as a purveyor of milk. Under the terms of the Bill as it stands at present, a creamery would only be entitled to engage in the sale of specially-designated milk. If a creamery undertakes to sell milk other than designated milk, suppliers must be registered in the same way as the supplier who sells direct and does not supply a creamery at all. A creamery, in order to secure a special designation licence, will have to comply with certain conditions. The milk that a creamery undertakes to convert into designated milk will have to reach a certain standard of purity and cleanliness before it is submitted to pasteurisation or other process to bring it within the description of designated milk. From that point of view, a creamery selling specially-designated milk will have to comply with the same conditions that any other group of individuals have to comply with so far as that particular brand of milk is concerned. It can be truthfully stated, undoubtedly, that the individual suppliers to a creamery are not subject to the inspection that individual producers of milk for human consumption are subject to, but it must not be lost sight of that the Dairy Produce Act is in operation, and it is already a statutory offence to supply to a creamery milk that is dirty or contaminated.
I would like to quote from Section 39, sub-section (1) of the Dairy Produce Act of 1934:
"Any person who tenders or supplies any dirty, contaminated, or stale milk or cream, or milk or cream which is contained in a dirty vessel, to a creamery or cream-separating station, or any place where milk or cream is used for the manufacture of any dairy produce for sale, shall be guilty of an offence under this section and shall be punishable accordingly."
Now, the conditions under which milk is supplied to creameries are far in advance of the conditions in which milk is raised and exposed for sale for human consumption, at any rate, so far as the greater part of rural and provincial Ireland is concerned, and when we have got a standard of cleanliness and purity comparable to the standard already reached by the creameries an irresistible case can be made for the full terms and scope of the Bill to be applied to the creameries.
There is one other point, perhaps, to which I might draw the attention of the Seanad. I might mention that at present creameries are competing with the private concerns that have been mentioned here. This Bill does not give creameries an opportunity of doing something they have no right to do at present. I grant you that the Bill does not prevent them from doing something which people in the dairy trade would like them precluded from doing. In the first place, the creamery must have a special designation licence. In the second, and this is an important point, they must be registered with the local authority in whose area they sell or expose milk for sale. If the local authority is not satisfied with the conditions under which it is being produced they can refuse registration even to a creamery with a special designation licence. I think that puts them in a strong position. I do not think I can persuade Senator Wilson—I have never been able to persuade him of anything as a matter of fact—and I must ask the House to reject his amendment if I fail to persuade him to withdraw it.
You heard now the conditions under which milk is supplied to the creameries. What about stale milk? In the winter time the collection of milk takes place three times per week, on Mondays, Wednesdays, and Saturdays, and the milk that is milked on Saturday evening, Sunday morning and Monday morning goes out as Monday's milk. That is supposed to be fresh milk going to the creameries. Is it not stale milk? There is nothing about stale milk in the Bill. The rule of this country is for the creameries to secure milk at the cheapest price. It is that class of competition which is ruining people in the milk trade. There is nothing in the regulations about the milk of cows having indurated udders. Suppose a cow has a blasted udder, a dairyman cannot sell the milk in Dublin, but he can sell it to the creamery, and there is no clinical or veterinary inspection of the animals. That is necessary in the city. Why should we have all these staff if they are not to eliminate these risks?
Amendment put.
The Committee divided: Tá, 13; Níl, 15.
Tá
- Bagwell, John.
- Baxter, Patrick F.
- Bigger, Sir Edward Coey.
- Blythe, Ernest.
- Brown, Samuel L., K.C.
- Browne, Miss Kathleen.
- Counihan, John C.
- Jameson, Right Hon. Andrew.
- Milroy, Seán.
- O'Hanlon, M.F.
- O'Rourke, Brian.
- Staines, Michael.
- Wilson, Richard.
Níl
- Boyle, James J.
- Chléirigh, Caitlín Bean Uí.
- Connolly, Joseph.
- Cummins, William.
- Dowdall, J.C.
- Duffy, Michael.
- Fitzgerald, Séamus.
- Healy, Denis D.
- Honan, Thomas V.
- Johnson, Thomas.
- Keyes, Raphael P.
- Linehan, Thomas.
- Lynch, Patrick, K.C.
- O Máille, Pádraic.
- Robinson, Séumas.
Tellers:—Tá: Senators Wilson and Counihan; Níl: Senators S. Robinson and Dowdall.
Amendment declared lost.
Sections 20 to 25, inclusive, agreed to.
SECTION 26.
(1) Where a sanitary authority are satisfied that—
(a) any person registered in the register of dairymen kept by them is no longer a fit and proper person to carry on the business of dairyman, or
(b) that any person registered in such register has been convicted of an offence under this Act or of an offence under the Sale of Food and Drugs Acts, 1875 to 1935, in relation to the sale of milk, or
(c) that the registration of any person in the register of dairymen kept by them was procured by fraud or by misrepresentation, whether fraudulent or innocent,
such sanitary authority may, by order (in this section referred to as a cancellation order) cancel the registration of such person in such register.
I move amendment No. 2:—
Section 26. In sub-section (1) (b), lines 16 and 17, to delete the words "or of an offence under the Sale of Food and Drugs Acts, 1875 to 1935".
This section deals with the regulation and cancellation of registration. It gives the sanitary authority power to revoke the registration of a dairy if the proprietor of the dairy is guilty of an offence under this Bill or under the Sale of Food and Drugs Acts. This is, again, a case of differentiation. The Parliamentary Secretary admitted last time that a man selling dirty milk to a creamery is liable to be fined and may be fined frequently. If he is not a registered dairyman, he will pay his fine and there will be no aftermath. He cannot be stopped from selling the milk. A registered dairyman, if convicted under the Sale of Food and Drugs Acts, may lose his qualification to sell milk. I contend that that is differentiation which ought not to find a place in legislation at this time of day. Senators will remember from the discussion on the Sale of Food and Drugs Bill how easy it is for an innocent man to lose his name by conviction. Under this Bill, that conviction will give the sanitary authority the right to cancel a dairyman's registration, while the supplier to a creamery can be fined every day of the week and still carry on his business.
I am afraid that my friend Senator Wilson is suffering from an obsession in regard to creameries. He says that a man can send dirty milk to a creamery every day of the week——
I say that he can carry on the next day same as usual.
Not only is it a penal offence for a farmer to proffer dirty milk for sale to a creamery, but the creamery is guilty of an offence if it accepts it.
That has nothing to do with the question. It is done every day of the week.
I have a certain amount of sympathy with the Senator's amendment regarding offences against the Sale of Food and Drugs Acts. I think it is perfectly right that the licence of a man who is not a fit or proper person to carry on the business of dairyman should be revoked. It is right, too, that a licence procured by fraud or misrepresentation should be revoked. But I suggest to the Parliamentary Secretary that paragraph (b) might be modified so as to refer only to more than two convictions. To give the local authority power to take away a licence for a single offence under the Food and Drugs Acts may, in some cases, be open to abuse.
The Cathaoirleach resumed the Chair.
I support the amendment. The House will remember that, when we were discussing the Sale of Food and Drugs Bill, we tried to get an amendment accepted which would protect an honest man who, through no fault of his own, might be fined for selling milk deficient in fat-content. We pointed out on that occasion—I think the Parliamentary Secretary agreed—that it is possible to have cases in which the farmer or dairyman would have no control over the fat-content of the milk. At that time we were told that this Bill would be coming on, and that we could then discuss this question. Senator Wilson's amendment meets the point. If Senators remembered the discussion on the Sale of Food and Drugs Bill, there would be no necessity for further discussion now. It is not a question of clean or dirty milk. What we seek is to protect the dairyman or farmer who may be fined under the Sale of Food and Drugs Act because his milk is deficient in fats. That man, in present circumstances, will lose his licence. I do not think that that is quite fair, because he may be fined in respect of a matter over which he had no control. I hope that the Parliamentary Secretary will accept the amendment.
I support the amendment. I think that Senator Dowdall was quite right in drawing attention to the fact that there might be some slight exaggeration on the part of Senator Wilson.
"Judicious exaggeration."
There might have been slight exaggeration by Senator Wilson with regard to farmers who send milk to creameries. The truth is that if a farmer is so untidy in his methods as to send milk to a creamery which the inspector pronounces unclean, he is prosecuted. The creamery is also liable to prosecution. We find evidence of that fact all over the country in this that the number of prosecutions has been very considerably reduced. Indeed, they are very few to-day. On the other hand, I think it is going altogether too far to absolutely condemn a man for one offence. I know from contact with people who have had to deal with this problem in the courts, that is passing judgement on whether or not a farmer had committed an offence, that they have found themselves in very great difficulty. Justices have been faced with great difficulty in determining whether or not an offence had been committed. We know from our own experience here that when Party lines are obliterated and the Party spirit subsides, when we are permitted to use our reason in determining on which side we should go, what slender considerations will ultimately weigh as to the decision one should give. It sometimes happens like that in the courts. A farmer is prosecuted for selling milk alleged to be deficient in butter-fat content. It would be very unjust, in the case of an honest man where circumstances intervened over which he had no control, that he should be degraded by a conviction in the courts. On one occasion a policeman might take samples of his milk. They might be found to be deficient in butter-fat content, due to circumstances over which as I have said he had no control. It would be very unjust to have such a man degraded in court and his licence taken from him, as well as the means of livelihood for his wife and family. The least that I think the Parliamentary Secretary might do is to give the concession asked for by Senator Dowdall. As we all know, the Senator is very experienced in all problems connected with milk production.
I suggest to the Parliamentary Secretary that he might accept the suggestion made by Senator Dowdall and put in the words "after a second conviction." I think then that the reference to the Food and Drugs Act at the end of paragraph (b) might be struck out.
A man may be guilty, though not found guilty before a court. That occurs quite frequently. This cancellation does not automatically follow the conviction as I think Senator Baxter suggested. A conviction has to be made before the court. Then the sanitary authority may exercise a discretion and attempt to cancel the registration. In that case, the person who holds the registration can appeal to the Minister so that not only has the Court to be satisfied that an offence has been committed but the sanitary authority and the Minister as well. In effect, therefore, you are providing two Courts of Appeal. In reference to what Senator Dowdall and Senator Lynch have suggested that the conviction of a second offence should be recorded before the cancellation could take place, even retaining the discretion of the sanitary authority and the right of appeal to the Minister, I suggest that the offence may be of such a character as, of itself, would justify cancellation. If the suggested amendment were inserted here it would not be possible to cancel the registration, no matter how flagrant the offence might be. It seems to me that there is a great deal of protection for the dairyman in this Bill. You have, first, the conviction before the court; you have, second, the discretion of the sanitary authority, and you have, third, the final decision of the Minister.
Is that automatic?
It is automatic if the person appeals.
But he must appeal?
He may appeal. If he is prepared to accept the decision of the sanitary authority he will not appeal.
If it was automatic it would greatly help the justice in the case.
A dairyman may say: "I have no case; I was caught flagrantly and, therefore, I am not going to appeal to the Minister because I would only show myself up." But if he has a good case he will appeal to the Minister.
He may be advised about his right of appeal.
I do not think there is any doubt that if a dairyman has anything like a good case he will certainly appeal to the Minister. We have in sub-section (7) a paragraph which says that in the case of a third offence within a period of five years there shall be cancellation. The very fact that that is there indicates that the section as a whole would leave the first and second offences to be, shall I say, of a minor character relative to sub-section (7). The fact that the local authority has to decide after a conviction has taken place, and that then the Minister can be appealed to, seems to me to afford plenty of leniency for the dairyman.
I think that this section was argued first on the basis that cancellation of registration was automatic on conviction. Now, it is nothing of the sort. If there is a conviction either under this measure or under the Food and Drugs Act, the first conviction may be for a very serious offence. It might be for an offence deserving cancellation. The sanitary authority is a responsible body. Are you going to deprive them of the power to cancel registration for one offence if it is a serious offence? Suppose you say: "Oh, well, registration shall not be cancelled for a first offence of any kind but merely cancelled on the second offence," have you considered at all that the second offence might be of a minor character? Then you will have this position: a man commits a serious offence but he cannot be interfered with so far as registration is concerned. They watch him until he commits a minor offence, and then after the second offence is committed they turn around and cancel his licence, remembering that he had committed a serious offence on the first occasion.
That is not just. It is not right that the sanitary authority should keep in their minds the offence which was already dealt with. The punishment of that ought to be complete on the first occasion. If a man has been punished in respect of one offence they should not keep in their minds the remembrance or the nature of that offence against him. Therefore, I think that, as Senator Johnson has pointed out, sub-section (1) of Section 26 ought to be left as it is, because it is merely permissive. It is followed by sub-section (7) which is the mandatory section. It provides for cancellation of registration only in case of a third offence. I think that Section 26, which seems to have been very fully considered, and to have taken account of the position both of the persons supplying milk and of the people consuming milk, ought to be left as it is.
I think the Parliamentary Secretary ought to consider what has been urged in favour of amendment of this section. What is going to be the position of a man convicted of this offence? He is going to lose a considerable portion of his business, even assuming that he was permitted to continue as a registered trader. Senator Johnson has stated that in the case of a conviction, the man has the right of appeal to two courts—the sanitary authority and the Minister. The Senator in his innocence may think that a registered milk vendor has nothing to do, if he has any sort of a case, but to appeal to the sanitary authority and that his licence will be continued. I wonder. Think of the atmosphere in many of our towns at the present time. In one town you will find one political party in control of the local body. Let us suppose that a man of another political party is a milk vendor, and that he is prosecuted and convicted, I wonder what would be his chances of getting a reconsideration of his case before such a local body?
Abolish the sanitary authority then.
I think it is unfair to leave the position in this way. The case would not be argued as it has been by Senator Wilson and others who are intimately concerned in this industry and have had personal experience themselves if there was not good reason for it. The case is not being argued on behalf of dishonest men, but rather in defence of people who have had experience themselves, by people who know the difficulties that face those who make an honest endeavour to supply the right material. I think the Parliamentary Secretary should agree that it would not be right to put a man out of business for a first offence. Personally, I do not think that in many cases there will be much hope for a man if he has to depend on the goodwill of the local authority. He might be able to secure that by putting pressure of a kind on the local body. That, I suggest, would be very undesirable. If a man is to keep a decent business and maintain a decent reputation he should not be put in the position of having to do that.
Mr. Healy
I am inclined to support the suggestion that has been made by Senator Lynch that the words "second offence" should be inserted in paragraph (b). An offence might very easily be committed and, therefore, I think a safeguard for the licensed trader, the man doing an honest business, should, as Senator Lynch has suggested, be inserted in the Bill. I hope that the Parliamentary Secretary will see his way to accept it.
On a point of order, the amendment on the Order Paper has nothing whatever to do with a first or a second offence.
The amendment that has been suggested would not affect the amendment on the Order Paper because it refers to the Food and Drugs Act and not to this Bill.
I am sure the House will agree that there are sufficient powers in the rest of the clause, even if we delete this, to deprive a dairyman of his registration. It says that where any person registered in the register has been convicted of an offence under this Act, he can be deprived of his licence. What we want to get out is that portion which refers to a conviction for an offence under the Sale of Food and Drugs Acts.
Putting water in the milk.
No, but the milk being deficient in fats. We have already under the Food and Drugs Acts proved many cases that can occur through no fault of the dairyman or farmer, and for that reason I think that Senator Wilson should stick to his amendment.
I think that what we are all anxious about is to prevent real hardship arising under this section. If the appeal to the Minister were automatic it would obviate that hardship. I would suggest to Senator Wilson that he should withdraw his amendment and substitute for it an amendment to this effect:
"Such sanitary authority may with the approval of the Minister, by order, under this section referred to as a cancellation order, cancel the registration of such person in such register."
We all know that everybody is supposed to know the law but nobody knows better than my learned friends in this House that the ordinary man in the street does not know the law. The ordinary farmer in the country certainly does not know the law and probably would not know that he had the right of appeal to the Minister. If you make an order dependent on the approval of the Minister, in the first instance, you will get rid of all the hardship. I think that would be the proper way to deal with this.
There was one argument used in the course of this debate with which I, for one moment, could not agree, and that is the argument put forward by Senator Baxter, that, in the conditions of this country, a man will not get fair play because there might be political opponents of his on the sanitary authority. I think that argument is quite wrong, and it is unworthy of Senator Baxter. A man cannot be convicted unless the proper officer reports to the sanitary authority. Whatever the sanitary authority does in that matter must be done in public, and I have yet to learn of any sanitary authority that would be likely to decide to deprive a man of his way of living merely because of political prejudice against him. Moreover, they could not do it. There is an appeal to the Minister, and does Senator Baxter say that the Parliamentary Secretary or the Minister for Local Government would be influenced to deprive a man of his way of living merely because of political prejudice against him? I think that when Senator Baxter considers the full effect of his argument, he will be inclined to withdraw that portion of his contention at all events.
I think Senator Comyn has forgotten what Senator Brown had in mind. The position here is that the sanitary authority, without any appeal or anything else, can cancel the registration in the first instance. That is at the back, I think, of Senator Baxter's and Senator Wilson's objection. What Senator Brown suggests is that cancellation should not take place until after the Minister has considered the case and given his approval. It would be a great protection, undoubtedly, if we knew that the cancellation was examined by the Minister and approved by him before it could take effect, and that is what Senator Brown is aiming at. I think Senator Comyn has lost sight of the fact that, as the Bill stands, the cancellation takes place first and the consideration by the Minister can only take place on appeal. There is, however, then, the cancellation locally against the man, and that is considered to be a hardship. If that cancellation did not issue until the Minister had given his decision, most Senators would think that he had as much protection as could be given. We want to give the protection of the approval of the Minister to the cancellation before it becomes effective.
I was not dealing with what Senator Brown suggested. I have nothing to say in regard to that. I think he put forward very good arguments in support of his view, but it is not the amendment before the House. What I was concerned with was that it should not go forth from this Seanad that an allegation such as Deputy Baxter made was uncontradicted in this House.
With great respect, I suggest that Senator Comyn is drawing a red herring across this discussion and that Senator Baxter is an accessory before the fact. Let us put that out of consideration altogether and let the Parliamentary Secretary consider this particular point on Report. I am perfectly aware that it is very difficult to legislate in this respect, having regard to the various interests on both sides. The object of the Bill is to protect the consumer. It is the main objective of the whole Bill, but if you make the thing too onerous on producers in a certain direction, and, above all, if you make it unfair, so that they are labouring under a sense of tyranny and injustice, you may injure the consumer because people will go out of business.
All I would say in connection with that is that it is a great pity that we would not be allowed to follow that red herring. I could follow it——
We have had enough of it.
——and cite instances in which prejudice is bound to influence decisions, and it would have special reference to Senator Baxter.
There was no argument whatever adduced as to why the supplier to a creamery should be allowed to break the law and suffer no pains or penalties. Why is he put in a glass case? The man who supplies a creamery is fined in respect of the particular day, but he can carry on in his business. Why is he getting a favoured position? That is one objection. I am not objecting with regard to a conviction under this Bill, I am objecting to a conviction under the Sale of Food and Drugs Act, because that Act provides very drastic and serious penalties in the event of conviction. Why should he be convicted a second time? Why should it carry on into another Act? Senator Comyn spoke about convicting a man once. In this case, the moment a man is convicted under the Sale of Food and Drugs Acts he is fined, and it is carried on into this Act and he may lose his licence.
That could all be covered by the approval of the Minister.
Will Senator Brown say why one culprit, if he be a culprit, is exempted? Why is the supplier to the creamery exempted from these regulations?
He is not selling milk like a milk vendor.
The creamery is the vendor.
Might I suggest that Senator Wilson is trying to make this Bill the perfect Bill we would all like it to be in ten years' time. I think the Senator is really driving at raising the standard of every supplier to a creamery to the standard which he would like to attain. That is impossible in this Bill, and it is impossible within the next couple of years, but, failing the attaining of that impossible ideal within a short time, the Senator would rather incline to destroy the value of the Bill. I think he is really cutting across the general principle of this Bill. On Senator Brown's suggestion, I would point out that Section 23 and the plan of the Bill is that the sanitary authority is the authority that registers, and in the case of refusal by the sanitary authority to register, there is an appeal to the Minister. This section follows the same course.
Is that not for the first registration?
That is the first registration, so that the section in question is really in conformity with the plan of the registration system altogether. I think there is some point in saying that the deprivation of a licence which has been once given is somewhat in a different category and it may be that the automatic appeal is reasonable, but I personally cannot think at all of a dairyman in this country not knowing, once this Bill is passed, that before his licence is cancelled, he has an appeal to the Minister.
Why not make it sure?
That is a matter of machinery entirely, I think, and I would not oppose it.
Senator Wilson and Senator Counihan have tried to point out that there is a differentiation here with regard to the treatment of a man convicted of an offence under the Sale of Food and Drugs Acts. I should like to point out that in the case of a person supplying milk to a creamery, if he is convicted, as Senator Counihan says, of selling milk deficient in fats, there is no hardship, because the creamery pays the man on the amount of fat content in the milk, whereas the man convicted of that offence who goes to sell milk to the public is in an entirely different position. It is a much graver offence because he is not found out until an inspector takes a sample and tests it. There is all the more reason why he should be punished if he is convicted of an offence under the Food and Drugs Act in that particular way. As has been pointed out over and over again, it is not mandatory on a sanitary authority to cancel a man's registration, and, therefore, I contend that there is a lot of hub-bub about nothing. From my experience of sanitary authorities, the last thing in the world they will do is to cancel a man's registration.
I did not anticipate a debate of any length on this amendment at all. I am surprised to find the House taking it so seriously. I am very strongly opposed to this amendment. If this amendment were accepted, it appears to me that it would very considerably weaken the control of the sanitary authority in connection with the administration of the Bill. Everything that can be said for and against the amendment has, I think, been said already, and said more than once, and I can afford to be very brief.
A sanitary authority may cancel registration in the case of a person who has been convicted of an offence under the Food and Drugs Acts. Does anybody seriously contemplate a rigid enforcement of the powers conferred on the sanitary authority? I certainly do not. Our great difficulty will be to get the sanitary authorities down the country to take a serious enough view of their responsibilities under this Bill when it becomes an Act. What are we doing? We are empowering the sanitary authority to cancel registration in certain conditions. We are giving them power to do that. We are asking a man who has been found guilty of an offence under the Food and Drugs Acts to submit to a jury of his own countrymen and, very often, of his own neighbours, and to abide by a majority verdict, and if he is not satisfied with that verdict to appeal to the Minister. There may be something in what Senator Brown says, that it is quite possible there may be hardship as a result of the fact that a dairyman was not aware of his right of appeal to the Minister. I am not very much impressed by it, but I see nothing whatever wrong in principle in having the appeal to the Minister automatic. I would be quite prepared to consider that, but beyond that I am not prepared to go.
I would be very happy to put down an amendment to that effect on the Report Stage, if the Minister would rather that I should do it.
It really does not matter; I am quite agreeable to the principle.
We shall want to know what Senator Wilson is going to do with his amendment.
I do not see any chance of winning with my amendment.
Amendment, by leave, withdrawn.
It is a quarter past seven now and we are only halfway through this Committee Stage, on which there are some other very important items to be considered.
We may get through more quickly now.
I suggest that we adjourn and meet to-morrow.
I did suggest to certain Senators in the afternoon that we would not meet for a fortnight and some of them may have left now under that impression. I am quite in your hands, of course. Could we not adjourn this Bill for a fortnight? Is there any urgency about it?
I am agreeable. There is no great urgency about the Bill, but I would much prefer to get it disposed of. Might I suggest that the next amendment be dealt with, as it is merely a formality?
Sections 26 to 29, inclusive, agreed to.
I am not moving amendment No. 3.
Amendment No. 3 not moved.
Progress reported; the Committee to sit again on Wednesday, 15th May.
The Seanad adjourned at 7.17 p.m. until Wednesday, 15th May, at 3 p.m.