I am hoping that the Seanad may give us not merely the Second Stage but all Stages of this Bill now. If there was any hope of that I think it would be better not to go into details of the sections, because it is obviously a Committee Stage Bill. That assumption, I hope, will prove correct.
Emergency Powers (Continuance and Amendment) Bill, 1942—Second Stage.
Question proposed: "That the Bill be now read a Second Time."
We can postpone the sections to the Committee Stage, whether it is taken to-night or to-morrow.
If we had any indication that all Stages would be taken this evening it would be easy to arrange that.
We do not want any indication.
It does not matter very much. What I had in mind was that I would say very little on the sections on this Stage, because, if I had to do so, I could only do it by dealing in detail with each section and, to a large extent, would have to repeat that on the subsequent Stages. If there was to be an interval I would naturally be prepared to do that, because there might be some question of amendment or something of that sort. I am going on that assumption, and if it is necessary to get any further explanation I suppose we can have it. Senators who have copies of the Bill can see by glancing at the marginal notes the various points dealt with. The Long Title makes it clear that it has two purposes, first to extend the time during which the Emergency Powers Act lasts, and secondly, to amend and extend the scope of the Bill in regard to these powers. With regard to the extension of time, as Senators know, the Emergency Act was current only for one year. It is due to terminate after a year unless extended this year. It was first passed on September 3rd, 1939, and has been extended on two occasions since, to bring it to the 2nd September. It is one of the series that will extend the time of operation during which the Act will be in existence until September 2nd, 1943. Of course it can be brought to a conclusion at any time by an Order of the Government. That is as regards the extension of time. I do not think I have to say anything further on that.
With regard to the extension of the scope, there are two or three matters of some importance. The first is a minor one, extending the definition of "subsidiary instrument". The definition in the Principal Act is somewhat extended so as to include the addition to what was before of a scheme or direction in writing. I now come to the more important ones. The first is that dealt with in Section 6, which relates to Section 2 of the Principal Act. I am afraid if they were to understand that Senators would have to refer to the Principal Act. The point is that in Section (2) 1 there are general omnibus powers given and, in the next sub-section, there are particular powers set out, going a long distance. These were set out by way of illustration and in the enumeration there are certain restrictions occasionally mentioned. For instance, in one of them we have the provision "otherwise than in Irish currency". That has reference to the powers of the Minister for Finance to require our citizens who may have dollar balances to register and, indeed, in another matter to sell to the Minister for Finance. There is the reference "otherwise than Irish currency". It might possibly be held that Irish currency was excluded by that particular phrase and that the general powers could not apply. We are making it quite clear that the general powers are, in fact, general and not in any way to be subtracted from by reason of any interpretation given as a result of special study of the sub-section.
Anyone who refers to the debates in the Dáil when the Emergency Powers Act was first passed will see that it was made clear that these powers should be general. This removes any possibility of doubt and says that not merely are they to be regarded in full generality in the future, but that there is retrospective effect. In Section 7 there is power to make retrospective amendment of certain Orders. That would be for the purpose of validating certain things that might have been done in the past. That retrospective power does not extend to the making of an offence something which was not an offence at the time; it cannot be retrospective to the extent of causing something to be an infringement of the law which in fact at the time was not. That is deliberately excluded.
So many of these Orders have been made that it is possible that some technicality might not be observed. There might be actions in the courts the effect of which would be to hold up the operation of the Order and thereby defeat the general intention. As an example, the Minister for Supplies made an Order with reference to rationing. He amended that Order. It was obvious that the amendment should refer back to the beginning. Otherwise, there would be considerable difficulty. To be effective, it was necessary that it should have retrospective effect. It is intended by Section 7 to make that possible.
Section 8 deals with the question of penalties. The greater part of the debate in the Dáil had reference to this section. If Senators refer to the Principal Act, they will find that sub-section (6) of Section 5 was divided into two parts. There were penalties for offences on summary conviction and for offences on indictment. Maximum penalties of various amounts were mentioned. We are getting rid of that sub-section (6) and are putting in sub-sections (6) and (6A). The structure of these might be regarded, at first, as confusing, but it will be easily understood if Senators remember that, in addition to the first sub-divisions in respect of convictions on indictment and summary convictions, a further sub-division is now introduced. Limits are imposed on penalties in the way of specified maximum amounts. In the new sub-section minimum penalties are indicated. To see the structure, Senators would have to read sub-paragraph (a) with (6A).
In the original Act?
No, in the Bill. (6) (a) (i) has to be taken with (6A). We are increasing the maximum penalties permissible over and above those prescribed in the original sub-section (6), which is going out. Sub-section (6) is being re-enacted, with higher maxima than were in the original Act. In (6A) you are asked to agree to allow the Government, by Order, to fix minimum penalties. There are certain restrictions with regard to these minimum penalties. We can deal in detail with them when we come to the sections. By Order, a definite penalty may be prescribed—say, £80—as a minimum amount. But if the penalty could be reckoned in accordance with units of some kind, then that might be done. Suppose a person failed to till a certain number of acres, a penalty of so much per acre could be prescribed. That is an example of how penalties with reference to units might be prescribed. I do not think that you could deal with an offence in relation to lbs. of tea in the same way so easily. It is possible, therefore, to have two classes of minimum penalties.
Section 9 deals with continuing offences. This is a particular type of offence which could arise in this way: if something has to be done by a specified date under a penalty, it is quite clear that you cannot comply with the law when the date has passed. Still, the act required may be of such a kind that it should be done even when the date has passed. For example, the Minister for Finance directs that foreign money and dollar balances must be registered by a certain date. The date passes. If the person has not complied with the law before the date in question, the Minister will still want these moneys to be registered even after the prescribed date. This section provides that an offence of such a kind shall be a continuing offence. In the case of land, it might be impossible to sow if you had not sown by a certain time. That is excluded from the continuing offence. Finally, we have this power of delegation. It was felt that, possibly — there was a doubt about it — the way in which this power of delegation was expressed in the Principal Act was not sufficiently wide to cover all the things that had to be done.
Where is that power of delegation provided for?
In Section 10. This extends the power of delegation. It is put in the widest possible form. Formerly, I think the form was some what like this: "under this or any other Act or under any emergency Order." Because of the phrase used, it was thought that some question might be raised as to whether there was power to delegate under an Order under any other Act. This provision is merely to make assurance doubly sure.
I have gone over in outline the matters dealt with in the Bill. I am making no case for them at the moment. I do not think that any question will be raised as to the advisability of extending the time. I do not think that any question will be raised with regard to the extension of powers, except, perhaps, with regard to the retrospective powers. I do not think that any question will be raised as to the general powers being interpreted as general. That was, clearly, the intention when the original Bill was passed. It was not the intention that the enumeration of a number of particular items should detract from the generality of the main clause.
The matter about which there may be a difference of opinion is the power of retrospective amendment. Even in that case, it should be quite clear that you cannot create an offence, or make some act an infringement of the law, when it was not so at the time it was done. Probably the main discussion in this House, as in Dáil Eireann, will centre around the advisability or otherwise of minimum penalties. All I need say about that at this stage is that it seemed to the Ministers responsible for safeguarding the community in regard to supplies that the seriousness of the position was not appreciated in the courts.
In Dáil Eireann I read some instances of cases where trifling fines were imposed for what appeared to be very serious offences. When we come to the Committee Stage, I can give a long list of such offences, and I can give examples of the penalties inflicted. We feel that the publication in the Press of these very trifling fines would have the effect of making the public regard the situation as not being so serious as it is. We feel that the only way by which we can hope to obtain uniformity is for the Executive to indicate the seriousness of the crime committed against the community by specifying the minimum fine. This would be done in certain cases only, and would not be done in a general way. There are restrictions to the Government's power in fixing these minima. I will refrain at this stage from going further into points which may be raised.
With regard to the Taoiseach's first point — that, before we enter on this discussion, we might agree to take all stages of this Bill to-day — may I say we have been very accommodating and very reasonable with regard to Bills, and discussions on the various stages, but I think it is unreasonable to ask anybody to state, before the Second Reading has been taken, when the Committee Stage will be taken. In our experience, it has occurred — in the case, for instance, of the Bill for the Institute of Advanced Studies — that, when the Second Stage was concluded here, certain amendments appeared to be necessary. The Bill before us to-day is manifestly one which the Seanad must pass through all stages before we rise. I would be prepared to give every reasonable facility—so would we all—but it is rather unreasonable to ask us to consider this Bill now, when the Dáil has risen. Not only is it a continuing Bill, but it contains very important additional powers, over and above those contained in the Principal Act. If we make any amendments which are accepted by this House, the Dáil must meet again. I think the Government could have arranged this in such a way that we would have got this Bill last week, and that another Bill, which we will not consider until September, could have been postponed in the Dáil. However, that is something over which we have no control.
In so far as this Bill ensures the continuance of the Emergency Powers Act, 1939, I think we are bound to accept it. On the acceptance of the continuance of that particular Act, there would arise for discussion the manner in which the Government have exercised the enormous powers entrusted to them unanimously by both Houses at the beginning of the emergency. I do not intend to enter into a discussion on that point now, beyond saying that, if we delay to make it, an extremely good case could be put up to the effect that the Government have been ill-advised and precipitous and not particularly sensible in the way in which certain of those powers were used. For example, the Government made, in the well-known Order No. 83, a particular regulation to ensure that wages and dividends would not rise. When considering that particular Order here, it was pointed out that, even if the principle were accepted — and some people would not accept even that — there were certain wage levels which should not be kept stationary when prices were rising. That idea was put forward and argued here at some length and was accepted by the Minister responsible, who amended the Order so as to provide that people on certain wage levels could get an increase. He also took power to amend the Order generally. That showed that sufficient consideration had not been given to the matter.
I think it is quite sound to say that wages never should have been stabilised, unless there was reasonable rationing and effective control of prices. What has been done to control prices has not been effective at all. In spite of the argument made in this House that rationing should be introduced, it was undertaken too late, and even then — as was proved by the Minister's own amendments to his Orders — it was taken without sufficient consultation with people who could have shown the Minister the correct way to do it. We might spend a great deal of time on that particular point, but I do not propose to delay the House at the moment on it.
The main feature of this Bill is, not that it continues the powers of the Principal Act, but that it provides retrospective powers and minimum penalties. We can deal with minimum penalties on the Committee Stage, but there is something to be said about the principle on the Second Stage. The provision of minimum penalties is part of a delusion that drastic provisions in Acts of Parliament can take the place of effective administration of the law. Experience shows that that is not so. If it is true that the penalties imposed on offenders under the Principal Act were not sufficiently great, the remedy does not lie in inserting minimum penalties in this Bill, but rather in increasing the rate of detection of offenders. In other words, drastic penalties in Orders or Acts are no substitute for the effective detection of offenders.
I wonder against whom precisely these particular penalties are directed. It should be made clear that this Bill provides that the Government or a Minister can make an Order, making certain things an offence and that the Order can prescribe a minimum penalty to be imposed on a person detected and convicted of that offence. The court before whom he is taken has no power to consider the special circumstances of the case, but is obliged to inflict the minimum penalty prescribed by the Order. Things which are not now an offence at all may become an offence, and minimum penalties may be prescribed for them. I wonder against what class of persons this provision is directed. Apparently, when one considers the figures given in the other House, it is not directed against the farmers. The number of farmers who have not complied with the tillage Order is something like two per 1,000. That is a very small percentage, if one allows for what one may call "mental defectives". Apparently, almost 100 per cent. of the farmers obey the law. Anyhow, they cannot escape. The one person in the country who cannot escape is the farmer who does not comply with the tillage Order, and anyone who has experience of administration or of any part of life at all, indeed, will know that it is very difficult to measure every case by the same rod. You have different circumstances in different cases, and the courts are used to taking into consideration the special circumstances. It seems to me that the only people, hitherto contemplated by Orders, who have not been sufficiently punished, perhaps, are people engaged in the black market. If, however, a really large-scale culprit should be brought before the courts, I am confident that adequate punishment would not be refused.
The Bill itself, as a whole, as I think the Taoiseach explained, is really an attempt by the civil servant to stop up every crack, and to fill up every hole so that nobody is ever going to escape from him, either retrospectively or prospectively. It is a typical attempt to make sure of getting everybody in every particular way. Now, remember that one of the real symbols of freedom, one of the really effective things to make freedom real in any community, is this power of the courts to interfere between the citizen and the Executive, and the Government in this particular Bill, are taking away that power from the courts. In effect, an Order is going to be made by a civil servant — because these are Orders that are made in various places for various Departments —who is going to prescribe what the offence is, and what the penalty is, and the only suggestion for an appeal is that you can appeal to the Minister. In effect, however, it is not an appeal to the Minister at all, but again to an official. Now, I must not be taken as being opposed to officials. I have had a long experience of their efficiency, conscientiousness and zeal, but, naturally, the point of view of the civil servant, of the competent civil servant, is that he is right, and he is impatient of any delay, even by the Dáil or the Seanad. Nobody is more familiar than I am with that point of view on the part of the civil servant. He wants to know why cannot the Dáil or the Seanad get through all the business in one day without all this objection and discussion, when he has spent, perhaps, days and nights of hard work hammering the thing out. He does not want his well-meant schemes to be interfered with. Now, he will make the Order, prescribe the penalty, and again when somebody is convicted, he will be the person to discuss and decide whether or not the penalty ought to be imposed.
Now, this particular provision of a minimum penalty and an appeal to the Minister is not the same as the appeal to the Minister that exists, and is well known, in the case, let us say, of death sentences, where you can make an appeal and where the sentence can be reviewed, and the President advised to remit the penalty. I have been sometimes asked by people how that is done. Some people are simple enough to think that the Minister for Justice, out of his own head, and without consulting anybody, decides whether or not a person will be hanged.
That is not so, of course. The matter is discussed with the members of the Government on principles that have been laid down for a long period, and it gets the special attention of the Minister for Justice, in the first place, and, if necessary, of every member of the Government, in the second place. This particular kind of thing, however, cannot get that consideration. It may be said that there is an appeal to the Minister but, in effect, there will be a great many cases where there will be no appeal to the Minister at all.
Apart from the general principles I have stated, all this thing of the contravention of regulations, carrying a minimum penalty, which may be remitted by a Minister, is bound to lead to all kinds of allegations of influence and wire-pulling and there will be dissatisfaction. It is bound to lead —and we all know it — to political exaggeration, and there will be such questions as whether a particular man —let us say, Pat Murphy — got off because he had a good case or merely because he was a supporter of Fianna Fáil. It is going to be said, no matter how good a case he had, that he got off because he was a supporter of Fianna Fáil, and that is going to be widely believed, or if he is not a supporter of a Fianna Fáil Government it will be said that he is a supporter of some other Government, it really does not matter which. The whole idea that the court must impose a penalty and that then you can come along and appeal to the Minister and get the penalty reduced, is a very bad idea. I was wondering to which particular Minister the appeal lies. When a particular penalty is imposed in an Order by the Minister for Supplies, for example, does the appeal lie to the Minister for Supplies or to the Minister for Justice?
The Minister for Justice.
The Minister for Justice? That, of course, would be a better scheme. That is to say, if one Minister would deal with all the appeals, it would approach to a regular procedure, but if the appeal were to come back to the Minister whose dictates had been themselves contravened, that would be a very bad thing. Although the Taoiseach says that the appeal is to the Minister for Justice, I wonder would that Minister have to consult with the Department concerned in every case? I think, at any rate, that there is no analogy with the discretion hitherto exercised by the Government in the case of the death penalty. I hold that it is a bad thing, that it is bound to bring uneasiness, that it is bad practice and bad law, and, I think, that it is going to be ineffective for its purpose. I do not think there is any necessity to make minimum penalties compulsory on the courts. There are other schemes besides that. The discretion should be left to the courts. As far as I am concerned — and I make no secret about it —I think I would rather be tried by an eccentric district justice in open court than by a extremely competent and conscientious civil servant in camera. I know that there are eccentric district justices, just as I know that there are very competent and conscientious civil servants, but I hold that the practice of leaving discretion to the courts is all-important, and if the Taoiseach finds the present courts ineffective, he has another remedy, and that is to try offenders in the black market before the military courts, if necessary. There again, I would rather be tried by a military officer or a group of military officers openly than by this method of dealing with the matter by a civil servant. This is a bad procedure altogether. There are several remedies besides the one suggested here. I know, of course, that when people go to great trouble to do something and then find that very small penalties are imposed, they take this as the simplest solution. It may very well be a rather lazy solution, such as we often find, and I do suggest to the Taoiseach that he is badly advised in adopting this minimum penalty and taking away the discretion of the courts, that it will not be effective, and that if the discretion were left with the courts more detection would be achieved and it would be far better.
There is another point to which I should like to refer. I put down no amendment on this matter because the Taoiseach was very adamant on it in the other House and, besides, we are getting the Bill very late. I do appeal to him, however, not on the political question at all but from the point of view of good government and, above all, impressing the ordinary citizen that he is getting good government, to let this thing go. Of course, it will be said that people who are opposed to minimum penalties are in favour of the black market. How anybody living here and trying to rear a family could be in favour of the black market, I do not know. I am in favour of the most drastic penalties for offences in connection with the black market, but I have an uncomfortable feeling, when I see some small shopkeeper getting a month in jail for a comparatively small infraction of the law, that there must be some people making a very good living out of this thing, who are not detected at all, and I do not like to see that, but I do not think that minimum penalties will go a step towards detecting these people.
There is one other point. In the Principal Act there is provision, in Section 2, for the making of Emergency Orders by the Government. There is, subsequently, provision, in Section 9, for laying all these Emergency Orders before each House of the Oireachtas, and a provision that if either House of the Oireachtas annuls the Order, it shall have no further validity. Now, it was not adverted to in the beginning that there was also power for the Government to transfer to a Minister the power to make an Order, so that we have the peculiar situation now that an Order made by the Government may be annulled by a resolution of either House of the Oireachtas, but an Order made by a Minister cannot be so annulled.
It can be discussed. You can put down a motion saying that the Order ought to be revoked, but there is no legal power whatever in a resolution passed either by this House or the other. That, I think, is an anomalous state of affairs which should not be allowed to continue. I think we should have this particular Bill amended so as to provide that Orders made by the Government, or by a Minister, may be annulled. As a matter of fact, certain Orders made by a Minister are of greater importance, and go deeper into the lives of the ordinary citizens, than Orders made by the Government itself.
These are the two main points that I have to make. We can discuss them in some detail on Committee, but I do suggest that the Taoiseach should take some other method—and there are several other methods besides the minimum penalty suggested here — of accomplishing what he has in mind. I am going to vote for the Second Reading if there is a division.
I think there is no question but that we must accept the Second Reading of this Bill. The Taoiseach explained that it was divided mainly into two parts: one, an extension of time for the existing law, and the other the making of certain extensions. I believe that at the bottom of his heart the Taoiseach dislikes this type of legislation as deeply as I do, but, whether we like it or not, we have accepted it during the emergency, so that nobody with any responsibility will suggest that you can suddenly end it. Therefore, this House has no option but to pass the Second Reading of this Bill. I desire to support what Senator Hayes said, that it is not fair to the Seanad, particularly a Seanad with limited powers, to bring a Bill of this character before us after the other House has adjourned. That leaves us in a position which makes it almost impracticable for us to pass the amendments to it which we may think necessary though, obviously, they must be of a more or less minor character in so far as we cannot adjust the main position of the Act.
I emphasise that because this has happened time after time. The tendency has grown up that we find ourselves in the position at the end of July with important measures of this kind coming before us. Senators can hardly have any heart in discussing them in detail, because it is felt that it is almost impracticable to amend them. I am not blaming the Taoiseach for that in connection with this Bill. I have raised the matter here on previous occasions.
As far as Section 6 is concerned, I have endeavoured to understand it. Judging by what the Taoiseach said in introducing it, I was correct in my reading of it. I have no difficulty in seeing the necessity for the section. I agree with Senator Hayes in regard to the matters which are likely to be raised on the Committee Stage. There is only one which I would like to refer to, partly because the Taoiseach referred to it, and that is the question of the powers proposed for the minimum penalty. I agree largely, but not perhaps in all detail, with what Senator Hayes said, and I want to put a somewhat different point of view. Let me take, for example, the clothes rationing Order. I know sufficient about that Order to realise that I could not pass an examination in it. I wonder is there a civil servant, a Minister, or a member of this House who could get 85 per cent. in an examination, at any given time, in the administering of that Order? There are offences that could occur under it which would be a crime against the community, serious offences which would prevent the general effect of clothes rationing. For those serious offences the new increased maximum penalty is, in my opinion, not one bit too high. It is perfectly possible that a case could be made for providing that there should be a minimum penalty for these serious offences though, to tell the truth, for the kind of offences that I have in mind — offences against the community — the minimum proposed here is not enough.
I want to ask Senators what is the general position of the 100,000 shop assistant who have to administer that Order? I believe that the vast majority of them are trying to adminiter it conscientiously. They have to deal with some Orders and amendments that have only appeared in the Press. They are by reference. I speak on this from experience. We find the greatest difficulty in knowing exactly what an Order or an amendment means, and the greatest difficulty in getting alterations made in the original lists. In that situation, though their intentions are the best in the world, you will find persons guilty of committing offences against an Order. Now, that may or may not be the kind of Order in respect of which the Government want to impose the minimum penalty. I suggest that rationing Orders are the kind of Orders in which minimum penalties might be necessary because they may be closely allied to what we call the black market, and may be the kind of Order under which it is necessary to deal drastically with the person who is making money for his own pocket at the expense of the community. That is the sort of thing we want to get after, but, between that class of person, and the honest person who is trying to carry out an extremely difficult task, there is all the difference in the world, and the minimum penalty is going to apply to both.
The Taoiseach referred to the large number of Orders. I have not attempted in the last year to read anything like all the Orders made, but I have read a very large number of them as carefully as I could, particularly those that affected my business or anything that I had to administer. I must confess that it is almost impossible, no matter how conscientious you are, to understand them. It is generally, though not always, a month, and sometimes two months, before you can get a copy of those Orders in print. Members of the House may get them a little bit earlier, but the general public cannot buy them for a couple of months because they are not published in full, due to the shortage of paper. A résumé of them is published in the Press, and it is on that that the law is to be carried out. I am not complaining of that because I think it is, to a large extent, inevitable. What I do complain of is that for some days before you can get a copy of the written Order you may be doing something which is really a serious offence under it.
You see in the newspapers that the Minister has made a clothes rationing Order. Certain headings are given. To any person who can read it is made plain that there are certain things that you can no longer do. You cannot, without permission, as the case may be, or without coupons, as the case may be, purchase or sell large quantities of material. Take the case of the man who deals in thousands of pounds worth of it. Because he thinks he can get away with it, I would not, if I were a judge, let him off simply because he could not buy the Order. I would place him in a different category from that of the person who could not have reasonably understood, from the newspapers, what the exact meaning of the Order was.
I know that some of us who look with misgivings on the minimum penalty, because it does not seem to us that it can be administered justly, will be accused in the Press of favouring the black market. It has been done. I do not mind that. It is our duty to try to put a point of view. My honest feeling is that the real difficulty the Government are dealing with is not the wish of the public to deal with serious offences, but that they are bringing a wrong principle into an Act just because they are not satisfied with the action of certain justices. What is really wanted is an appreciation in the minds of the justices of the importance of the particular Orders in the interest of the community, without taking away what, to my mind, is the first essential in the administration of justice: a proper examination and judgment by the person who hears and who has to deal with the case. There may be an inadvertent breach of the law. There may be breaches of the law which are not morally wrong, which may be unintentional, which may be caused by misunderstanding.
We all know that that occurs. I do not suppose that there is a person in this House who has not been guilty of it at one time or another. At the same time, there are breaches of the law which, in plain English, would be really offences against the whole community. Again, we must remember that Emergency Orders are Emergency Orders. They are conceived very often — sometimes necessarily, but I think more often than is necessary — in secret. They suddenly appear in the Press. They are in a different category from a law which has been passed after a long debate in the Dáil and afterwards, possibly, a considerable debate in this House by which the public have every reason to be aware of them.
I have to go away two or three times a year. I am only out of this country for four or five days at a time. I do not think I am exaggerating when I say that in the last year any time I have gone away I have had to read very carefully through the advertisement columns of the newspapers to see what Emergency Orders have been made that might affect my business, and always there were one or two. Why take an Emergency Order and put it in a different category as the ordinary law? If possible, I think it should be the reverse. I am not denying that it is desirable to find some method by which a serious offence under this and other law, particularly where that offence is a criminal one and is committed for private gain, should be dealt with adequately.
My own personal opinion is that the public discussion in the Dáil, supported by the discussion in this House, if it gets any publicity, will go a considerable way towards awakening in the minds of the justices, who may not have realised the position, a realisation of the position. But I do say definitely that if you provide for a fine of £100 or even £25, or any amount which is of any use at all as a minimum fine for a serious offence, and if you make that a minimum fine for a shop assistant who is honestly trying to carry out the clothing Order — which I challenge any Minister to go into a shop himself and administer accurately — you will have a definite feeling of injustice. It is not good enough to say that some Departmental officials may remit that fine. To my mind, there is nothing more unsatisfactory in dealing with offences of that kind than to say they are to be revised through a Government Department.
I hope the time will come when we will be able to separate the State and Government from Party ideas, but we have not yet reached that here. I do not suppose there are any Senators who do not find people coming to them thinking they can influence somebody to get them off, or to get this thing or that done. Even though it is often a completely false idea, it is there in the minds of the people. If this minimum penalty must remain, I urge the Government to consider whether the remission of fines should not be dealt with by some small committee of judges, or somebody apart from what appears to be the Government. I know that the Department of Justice should not in the minds of the public appear just the same as Party Government, but I am afraid the fact is that it does. Nevertheless, the only person who can really judge whether a particular offence is really a criminal one, or whether it is inadvertent, is the person who has the circumstances put before him, who hears the evidence, and who has seen the persons concerned. Anyone who has to deal with a staff, particularly of juniors, and knows the difficulties of business, knows very well that if you have seen the person and know the circumstances you often find that what looked like a heinous offence was in effect, in some cases, due to stupidity, or, in other cases, to a bona fide misunderstanding. For that reason, in addition to other reasons, I am against minimum penalties. It seems to me the position is this. The case is that certain justices have not used their powers to impose sufficiently high fines. To meet that you are providing for minimum penalties which may be inflicted on people guilty of a serious offence. Is not the cure possibly worse than the disease?
I do not propose to take advantage of this occasion, although I think it would be strictly in order, to refer to the general administration of the Emergency Powers Act and things which have been done under the Act. But there is one matter to which I should like to refer, because I do not think it has been referred to — not recently, at any rate. I was under the impression that taxation would not be imposed by Emergency Orders. If that has not been done, we have been getting extremely near it. A short time ago it was decided by an Order made, I think, by the Minister for Supplies, or perhaps the Minister for Industry and Commerce — the same person, anyway — providing that a certain type of manufacturer, no matter how small, must be registered and that a fee of £10 must be attached to the form. It was not a printed form; it was a cyclostyled form. The cost of producing that form and of registering and making an entry could not be anything like £10. Therefore, that charge of £10 was not an administrative charge to cover the cost. I think half-a-crown or 5/- at the outside would be the most it could cost. A bank has to pay only £1, I think, to be registered.
A small manufacturer who came to me was very sore because he had to pay this £10. I told him there was no way out of it. He told me that he started with £5 capital but had several hundred pounds of capital at the moment. He said it was a terrible impost. I told him it was unjust and that I was amazed that an Emergency Order would be used for making a charge of as much as £10. I admit that there are some large manufacturers, whose capital is in the neighbourhood of £50,000 or £100,000, who would not mind paying £10. But it is applied all round. My point is that it is a tax placed on manufacturers, large and small, in order to be registered at a time when they are in difficulties. I think, in effect, it becomes taxation. I would suggest that Emergency Orders ought not to be used for taxation; that any fees attached should be purely in the nature of a fee which would cover the actual expense of making the register. If it is afterwards desired to tax a particular type of manufacturer, it should be done in the Budget, done openly; it should be stated that the manufacturer has to pay so much a year.
I think that any time proposals have come before us for granting extra powers to the Government I have been prominent in proposing that those powers be given, because I have always felt that where there is responsibility there must be correlative power. If we are going to hold the Government responsible for the well-being of this country and the administration of ordered society here it would be against justice if we demanded that they should produce results if we did not put the means in their hands. Consequently, I nearly always supported the giving of extra powers to the Government and I propose to support the continuance of the ordinary Emergency Powers Act. But I do want to point out a number of things. Not only since the war, but even before the war, the operation of the Legislature as a legislative body was enormously encroached upon. We have sanctioned that and we continued to sanction it but, in effect, the whole tendency has been, even before the present war began, to a movement towards totalitarian government. I am not saying that I am always going to stand for the maximum of Parliamentary interference. We have sat down under that. As a matter of fact, although people have tended to consider the Legislature, the Executive and the judiciary as three entities, they are really three functions of government. In this Act the Government is really encroaching upon that other activity which is handed over to judges, namely, the judicial function. When you make any law which is of general application, we know that, naturally and inevitably, there will be certain cases in which, by reason of the peculiar circumstances, the application of that law would be against justice. Not only jurists, but also moralists, recognising that, have seen that the solution lies, not in individual law, but in making a general law and having the judge, who is aware of all the surrounding circumstances, able to decide whether or not a penalty should be imposed and, if so, to relate the penalty to the offence in its particular circumstances, because the circumstances surrounding an act will condition both the malice of the act and its whole effect upon society.
Here, what are we doing? As far as I read this Section 8, the Government has been given practically an unlimited power for making Emergency Orders, declaring certain acts, or the non-fulfilment of the commands in those Orders, offences. That power remains with the Government and the Government, to-day, to-morrow, or any future time, may bring in any new Emergency Order. We are not aware what they are now and, although we are not aware as to what act or failure to act the Government may, in its wisdom, decide is an offence, as far as I read this Bill — it is rather difficult to follow, especially as the Taoiseach explained it —you really require to have this Bill and the previous Bill before you — we are giving the Government power to declare anything that it likes an offence and, without knowing what they are going to make an offence, we are saying that the minimum penalty shall be such a thing. That seems to me really an outrage against ordinary intelligence.
We have instituted a judiciary and we are paying a judiciary for operating a certain function of government. The Legislature is now coming along and saying in so many words: "That function of government is not being operated appropriately, and we propose taking the power which naturally resides in the judiciary into the Executive or into an individual Minister or into a civil servant." When you have in front of you a body of emergency decrees you can look at the acts that are prohibited and see what is proposed as a minimum penalty, and you can say: "Yes; there is a ratio between the malice of that act or the defiance of that decree and the penalty that is there." But now, in absolute darkness, as far as I read it, we do not know what Emergency Order is going to be brought out at any moment, but we are saying, no matter what it is, justice is exactly met by that penalty which is proposed there, irrespective of what the surrounding circumstances may be. That does seem to me rather asking too much.
I am quite ready to recognise that a whole number of rights that are properly regarded as rights that must be respected in normal circumstances have to be foregone during such a period as we have at the moment, a period of emergency, and I interpret a period of emergency as one in which the existence of society, in the technical meaning of the word — a perfect society — is itself in jeopardy. It does seem to me extraordinary that we are going to say what is the appropriate punishment for a crime when we do not even know what the crime is going to be. That seems to me to be the major objection to this Bill.
There is one other point. Even before what is called the present emergency, I think I am prepared to point out that members of the Government — I think, even the Taoiseach himself, though I do not want to say that because I may be doing him an injustice — made statements which clearly indicated that to own a factory or to own a shop is ownership very different from the ownership of land. The implication has been that, strictly speaking, the ownership of all the land in this country is in the Government of this country and that, though you may call yourself the owner of a farm, your ownership is something very different from the ownership of any other commodity that you may possess. That was implicit in Ministerial statements before the present emergency. I recognise that, in the peculiar circumstances of the time, it is absolutely vital to us that the potential productivity of the soil of this country should be exploited for the very continued existence of our people and, in those circumstances, I do recognise that the true ownership, that is to say, decision as to the use that is to be made of the land and the dispensing of what is produced from the land by the farmer, is largely overridden. At the same time, in view of the pronouncements of members of the Government, I am frankly suspicious that in exercising the powers, the unnamed powers, which we are giving the Government the right to take to themselves, the idea that they have a right to dictate to every farmer in this country exactly what he will do with his land may operate. I recognise that they have the right to insist that the land shall be exploited in a way that will appropriately provide for the living of our people here, but I am suspicious of the Government there. That is only a personal suspicion, based upon Ministerial statements.
We are going to continue to pay our justices although, admittedly, they are not doing their job. Obviously, if people are drawing pay out of national taxation and are not doing their job, then there should be a means of removing them from their office, and it may be that it would be right that certain people should be removed from office. But there was a way of meeting that, and that is, within the law, asking the Legislature to agree to the removal of men from office. But now we are taking from them the very purpose for which they exist, namely, to know the exact circumstances in which an offence was committed, to judge the offence in the light of those circumstances, to recognise that the general law may be inappropriate in its application in an individual case. You are taking that from them and handing it over to a Minister. I, personally, find that the most objectionable feature in this Bill. I also do object to anything with retrospective effect. It does seem to me, reading cases in the paper, that one of the reasons moving the Government was not so much that the justices refused to impose a sufficient penalty. It seems to me that the Government, admittedly in this Bill, are trying to rectify bad draftsmanship in their previous Bill.
The Taoiseach referred to something being clear to everybody as the intention. Frequently one has noticed from the statements of Ministers that they have made up their minds as to what the intention is in a certain drafting of our enactments and they are indignant when a qualified interpreter says that that is not the meaning. There is great indignation when people fully qualified to interpret the meaning of an enactment decide that it does not mean what the Government want it to mean. When that happens the Government have the remedy of amending their legislation so that it will be consistently clear that what they want it to mean is the true meaning. One of the annoyances of the Government arises when a thing is drafted ineptly, under the idea that it made one thing clear, and it transpires that it left loopholes and that it did not convey the intention the Government meant, that the intention was not in the enactment as written down. The Government are rather indignant and feel annoyed because those who interpret enactments or decrees do not know what was in the Government's mind and act in the strict literal meaning of what was to be done.
I want to call the attention of the Seanad to the meaning one would place on certain sections. It is set out here: "Section 5 of the Principal Act is hereby amended in the following respects, that is to say .... Every person who, being an Irish citizen or ordinarily resident in the State, commits or is deemed to have committed, whether within or without the State, an offence under the section ...." Looking up the section in the original Act, it seems to me that an offence is anything which is against any emergency order that may be made by the Government. We know, or we do not know, these things, as the case may be. We do not know, for instance, what emergency orders the Government may choose to make within the next few weeks. We are saying that an Irish citizen, when he fails for one reason or another to obey an order to be made in the future, will be liable to this penalty, and that this penalty is the minimum that shall be imposed. That seems to be quite ridiculous.
You will notice in Section 8 it says: "...Every person who, being an Irish citizen or ordinarily resident within the State." I think you can easily have difficulties there. The law deciding what makes us Irish citizens is so drafted that, if every other country had the same law, a number of people would be Irish citizens, and would be also citizens of another country. I am now addressing this interrogatively to the Taoiseach. If a man is living in England or America, and is, within the meaning of our law, an Irish citizen, and is also within the meaning of British law a British citizen, or within the meaning of American law an American citizen, and that man does something in contravention of one of these enactments, surely, if we say he is an Irish citizen, and the American Government say he is an American citizen, he has a right to ask, when he is outside this country and in America, that the acts he performed should be governed and judged according to the law of the State in which he lives and of which he is a citizen.
I should like to know from the Taoiseach what happens there. Are we going to say, in respect of a citizen in America acting in strict accordance with the law of that country, that we will claim jurisdiction and the right to punish him? If that is so, it seems to be rather ridiculous and the ridiculousness arises from the fact that we passed a Nationality Act which, if another country passed it, would mean that we and the other country were claiming one person as a citizen, and there are thousands of persons, Irish citizens, who are also citizens of other countries. I should like to know if the Taoiseach and the draftsman have adverted to the full significance of that clause. I consistently have agreed to give almost every power into the hands of the Government, but I think it is asking too much to say to us: "I want you to agree that, no matter what we may in future declare to be an offence, justice is going to be met by the imposition of the minimum penalty that you are asked to agree to now."
I want to emphasise a certain point made by Senator Douglas. I refer to the difficulty of getting these Orders. I have done a certain amount of research work on this matter — it amounted almost to that. I found that I could not get the Orders as I required them. Naturally, in the banking business one must be in a position to know the effect of these Orders. As a result of researches, we found out that some Orders can be got fairly promptly, in about seven or ten days. As regards other Orders, it might be six weeks before the public would get them. Further, I discovered that the whole explanation of the delay is because the Orders have to be translated into the Irish language. If the Orders are to appear in English, they can appear with reasonable promptness, but if they have to be translated into Irish they are held up for a considerable period, for about a month, or even longer. Why should that be? I do not know if there is great difficulty in finding words to make adequately clear the meaning of the English version.
So far as I can see, the whole thing is entirely capricious. When the Government are in a hurry, they dispense with the Irish translation. Take, for instance, the rationing Order, where Irish was let go by the board. One would imagine that the rationing Order, which affects every citizen, is the one thing that would require to be in Irish, if we assume that there are numbers of people who do not know English. If any Order should be bilingual, it is the rationing Order. The Orders dealing with corsets, elastic or something of that description, have to be put into Irish for some reason that I cannot at the moment understand. One would think that because of the shortage of paper we might get all the Orders published in English first and, if the bilingual formula has to be satisfied, then the subsequent Order can come out later in both languages.
I think the Government are on dangerous ground in this Bill. I know that if I were a judge I would not convict anybody of an offence under an Order that probably he had not seen and that was not published because the Irish version was not available. I cannot help feeling that if that matter was challenged in the courts and a citizen declared: "I cannot get this Order; I have seen something about it in a newspaper, but I do not know what the law is until I see the Order," it would be a valid defence. I think the Government are running considerable risk because of the delays in publishing these Orders.
There is one other matter which I raised before. I do not know if the Taoiseach has any knowledge of it. An Order was issued recently which made an Order and a direction, verbal or in writing, synonymous. That, to my mind, has never been challenged. The Minister on the previous occasion said he did not think so, and we got no further with the matter. I got no support in the House, but I am still very nervous about the whole position. I admit that, within the ambit of an Order, there must at some stage be directions, because it is not possible to have every specific act and method of carrying out the Order contained in the Order itself. A general Order is given, but there must at some stage be by-laws and directions under which the Order is carried out, but there seems to be no definition as to the respective ambits of order versus direction. I can conceive to-morrow an official of some Department, under a pure direction, saying to me: “Those railings in front of your house are going to be taken down, and I am doing it under a direction.” I believe that is possible to-day, and that is why I am anxious about this whole position. That is an illustration of the indefiniteness of the position. Take the case of railings. The Government wants to take railings down. Is the removal of railings to be the subject of an Order or could it be done under a direction? Reading these Orders as a layman, I hold that railings can now be taken down under a direction, and anybody may wake up in the morning to find an official taking his railings down and doing it under a direction which could not be challenged in this House. These are serious matters and I ask the Taoiseach to give them consideration.
With regard to the amending part of this Bill, I think it unwise at this stage of the emergency for the Government to take new powers. A short while ago the head of a certain State in Europe took unto himself extra powers and his action was hailed with delight by his enemies who, so to speak, worked it to death on the wireless, on the ground that his taking new powers at that stage was a sign of weakness. I think it was a sign of weakness and, while not by any means comparing the head of this State with the head of the State I refer to, I think it a sign of weakness on the part of the head of the present Government to sponsor the amendment part of this Bill in which he takes new powers.
The part of the Bill in which I am interested is that part in which the Government takes new powers in respect of non-compliance with the tillage Order. I think there is some idea in the heads of the Taoiseach and other members of the Government that the farmers do not want to do their national duty. I do not think they realise that the farmers are doing their national duty under great difficulties, and that the failure of a great many of these people to comply with the tillage Order is due to sheer inability, in that, for some reason or another, they were not prepared for it and had not got the implements or the capital. I do not believe that any farmer in the country would not do his national duty. I should be more satisfied if the Taoiseach would introduce an amendment to this Bill providing that the fines now imposed retrospectively and in the future for failure to comply with the tillage Order should be given to those people who have more than done their national duty. There are many people in the country whose winter wheat failed and who took a chance in the first or second week of May on reseeding their land in wheat. They might not have done that; they had their quota filled; but, because they knew that wheat and bread were necessary for the country, they reseeded their land with Diamante wheat. I think the Taoiseach would be looking at the matter more objectively if he were to introduce an amendment providing that the fines collected from people who failed to do their duty in regard to tilling their land should be given to these people.
The only conclusion one can draw from the speeches made up to the present is that those people who have spoken are completely out of touch with the country, because we must all know that nothing created greater disrespect for the law and for Orders made by the Government than the small penalties inflicted by the justices, particularly in relation to non-compliance with the tillage Order. We all know that this country was in danger of starvation, and yet we saw men in responsible positions, men who are drawing good salaries from this State, when cases of men with large holdings of land—and they were all large holders of land—came before them in several districts, letting these men off with as small a penalty as a fine of 5/- or 10/- for not having tilled their quota, when that quota was ten, 15 or 20 acres. On the other hand, we saw poor, struggling farmers in the same districts running into debt, gathering manure of every description and doing everything they possibly could, in an effort to help the country through the emergency, while these other farmers who failed to do their duty were allowed off with a small penalty by the justices, and almost knowing before being brought to court that, due to the leniency of the justices, these were the penalties that would be inflicted. I say that as it is the duty of the Government to see that food and fuel are provided for the people, and equally distributed, when an Order is made, it is right that the people who do not comply with the Order should know the minimum penalty which will be inflicted on them for their failure to comply.
It has been suggested that this is a new departure, that we are doing something here which was never done in normal times, but, as a matter of fact, under the licensing laws, a minimum penalty is laid down, and if a publican is brought before the court for an offence and the case against him is proved, the justice must endorse the licence, and three such endorsements mean the loss of that licence. If we had such regulations in normal times, I think it only right that we should have them when we are up against the present position. The people of the country are crying out for the making of this regulation, and the only grievance they have against the Government is that it was not made before this, and that fines were not inflicted. It is very sad to think that those men who occupy the responsible positions of district justices did not realise, as did the smallest farmer, the seriousness of the position. If they are now compelled by regulation to do certain things it is because they themselves refused to do these things voluntarily.
I have no desire, any more than other Senators, to deny or withhold from the Government the powers they need under the Emergency Powers Act. I have no desire to prevent their getting a continuance of these powers, but I think I would be wanting in my duty to the people I represent if I did not once again on their behalf protest against the iniquitous Emergency Powers (No. 83) Order and its successor Emergency Powers (No. 166) Order. I think I would be right in saying that, if it was not definitely stated, it was at least understood, when the Emergency Powers Act was going through the two Houses in September, 1939, that it would not be used to lower the standard of living of the workers.
We know how that understanding was observed when Order No. 83 was introduced. One might not object to that Order, in fact it might have been accepted as inevitable under the emergency conditions in which we were living, if there had been any serious attempt to control prices. I do not know whether circumstances throughout the country are similar to those existing in Dublin, but certainly the experience of ordinary workers in this city is that prices are not being effectively controlled. In the price of a small article, costing, say, 1/-, one will find in shops in the same street a difference of 3d. or 4d. That is a serious matter and so long, at least, as the Government insists on keeping Order No. 83 and the subsequent Order No. 166 in operation some definite steps should be taken to control prices. I do not think that the greatest supporter of the Government will deny that a situation such as I have described exists.
In so far as Order No. 83 is concerned, the workers whom I represent —they are a fairly considerable body; delegates representing over 160,000 workers met in congress last week— insist that this Order should be withdrawn altogether. Order No. 166, while it permits an increase of 2/- for every ten points over 235 in the cost of living, is surrounded with such complicated machinery that it is almost impossible for anyone to embark upon the procedure necessary to secure this very small increase in wages. Before a worker can get that paltry increase of 2/- for every advance of ten points over 235, he has to go through a complicated form of procedure. The workers concerned must apply to the Department for a standard wages rate to be established. Having done that, advertisements must be inserted in the newspapers and bodies interested, other than the body making the application, are asked to submit evidence showing why that application should or should not be granted.
That having been accomplished and a standard wages rate having been fixed, before the bonus Order can be applied for, there must be agreement between the body making the application and the employers concerned. The employers must agree that the application is to be made and furthermore the workers are forbidden to go on strike to compel the employer to do that. The workers must not use any duress or force to compel employers to join with them in making an application.
Should the workers succeed in getting the employers' consent to making the application, the tribunal may recommend to the Minister an increase in accordance with the scale laid down in Order No. 166 but then the employer is not under any obligation to pay the increase and the workers may not take strike action to enforce the payment of the increase. I think the whole complicated machinery contained in that Order is deliberately devised to deter workers from making an application. If the Government wanted to make one decent Order, instead of setting up this complicated machinery, they might have made an Emergency Powers Order declaring that for every ten points increase over 235 in the cost of living figure, an increase of 2/- might automatically be granted to workers. Tribunals are now being set up under this amending Order and the first tribunal meets next week. I am unfortunately the workers' representative on that tribunal and I must say that I feel that any little reputation I have is going to be shattered when that tribunal meets because the procedure is so complicated that it will prove almost impossible to work. I would appeal to the Taoiseach to see if some more simple machinery could not be devised to compensate lowly-paid workers for increases in the cost of living. We have raised this matter so often—it was raised on Order No. 83 and again on Order No. 166—that it has become something in the nature of King Charles' head. I do not wish to say anything further on the matter at this stage.
So far as the Bill before us is concerned, I have no fixed views on Section 8, which amends Section 5 of the Principal Act. I do say, however, that the full rigours of the law and the severest penalties that can be imposed should be inflicted on the racketeers who are battening on the miseries and the sufferings of the poor in this city. Some people seem to think that statements as to the conditions of the poor in this city are exaggerated, but I can tell Senators that the condition even of people in constant employment and with fixed wages is becoming more difficult day by day. I suggest that any penalties that can be imposed are not too severe for offences of this character. While I appreciate the point of view put forward by Senator Fitzgerald, I think that conditions are such as to warrant the severest penalties that can be imposed for these offences against the community, particularly offences against what I suppose is the poorest section of the community, the section which is least able to bear the impact of the present high prices and whose standard of living is becoming more depressed day by day owing to increases in the price of commodities. I would therefore appeal to the Taoiseach to do whatever he can first of all to control prices effectively—everybody knows that they are not being controlled effectively at present—and secondly to consider the point of view I have put before him in regard to Order No. 83 and the subsequent Order No. 166. He might consider whether some more simple machinery might not be devised whereby workers could obtain some recompense for increases in the cost of living other than is offered by the complicated machinery set out in the Order.
My intervention will be a short one. I think it is unfortunate that, in the Second House of the Legislature of a democratic State, the expression should be used that the Government is "taking powers". Senator Dr. Doyle used that expression more than once. The Government is not taking powers. The Government is asking us to give them powers, and these powers are necessary. In the experience of the Government and their advisers, and the experience of the people of this country, these powers are necessary for the purposes set forth in the Title to the Bill, namely, "for the purpose of securing the public safety and the preservation of the State in time of war". We are giving them these powers in this Bill. It is necessary that Senators should understand the position, and it is to define that that I rose.
Again I am in a difficulty on the question of the Committee Stage, because I feel there will have to be a considerable amount of repetition on the points that have been raised. The same points will come up again on the Committee Stage. At the very start I want to say that I have no desire at all to rush the Seanad. If the Seanad wishes to postpone the Committee Stage, of course it is within its right in doing so. I was not aware that the Seanad wanted this measure earlier. As soon as it passed through the Dáil it could possibly have come along here the moment it was reprinted. It has been suggested that it is the practice to wait until this time and to bring a number of Bills before the Seanad when the Dáil has gone out of session. That is not, I think, a fact.
The position is that the Dáil has a certain number of Bills to deal with; it does not just put one Bill through and then begin another. The result is that a number of measures are completed about the same time. Just before the Dáil rises at vacation time, it is almost certain that there will be a number of measures which have just matured, and that those measures will come along to be dealt with by the Seanad. There may be three; there may be four. Everybody knows that in the Dáil we do not just get one measure through and then come along with another. There are generally three or four measures coming together. Then, at the end of the session, a number of them mature, because there is an attempt made in the Dáil to complete the business on which it has been engaged for some time. Therefore, it is only in the nature of things that, when the Dáil adjourns, there will be a number of measures which have just been completed at that particular time, and which will have to come to the Seanad after the Dáil has risen. It is always understood that, if the Seanad puts forward any amendments, the Dáil will be brought back to consider those amendments.
But it has been the practice since 1922.
That a number of measures come along here at this time? That, I say, is in the nature of things. The Dáil has dealt with a number of measures. It has not just dealt with one measure after another. There are generally, perhaps, three or four measures being handled at the same time. Naturally, an effort is made in the Dáil particularly before the long recess, to finish the work upon which it has been engaged. Therefore, it is likely that there may be three or four or five measures which come to maturity at a certain date.
Then the Dáil rises, and the Seanad has to deal with those particular measures. There is no way out of it, I think, unless we were to try, before the Dáil adjourns, to get the measures coming one by one, and send them to the Seanad one by one according as they finish in the Dáil. Although there is an effort made to do that, with the best intentions in the world I doubt if we could avoid having the Seanad meeting to deal with three or four measures after the Dáil has finished. In a case like that, if the Seanad amends those measures, the Dáil will meet to consider the amendments. That has happened in the past. I do not think the Seanad need feel under any compulsion to deal with the measures which come up at this time in any way differently from the measures which come up during the Dáil Session. The Dáil will have to come back if the Seanad makes amendments upon which they are insisting.
With regard to the various questions that were raised, it is rather difficult to pick out any specially large ones and deal with them, because, unfortunately, there was a number of smaller points, each of which, I think, requires to have a word or two said about it. One of the speakers mentioned consultation beforehand in regard to rationing Orders. I am going to take those matters in detail; I am not satisfied with having to do it in that way, but it is about the only way in which I can cover the various points. That matter of consultation has been explained so often that it should be understood. If a Budget is considered by the Government, it will not be said that we should consult in advance everybody who will be affected by it. If that were attempted, we know what would happen. In the case of some of the Orders that have to be made, it is essential that there should be no opportunity given to people for taking action in advance which would be contrary to the general interest and would give an unfair advantage to some people. But there is always consultation in general.
With regard to the Clothes Rationing Order—that is the most recent one on which I have heard complaints— the Minister for Supplies, with all the information at his disposal, had satisfied himself that a certain thing had to be done. He knew that there would have to be modifications; he announced in advance that certain modifications would have to be brought about, but he did what we do in the Dáil very often when we pass a resolution and afterwards amend it. He made this Order, thereby preventing any action which might be against the general interest and in favour of individuals. After that, he wanted to have the fullest consultation. A point arose in connection with that consultation. I do not want to go into it, because it has been dealt with in public already. The point was that a demand was made that the Minister himself, personally, should see a certain body. There had been a request, I understand, that he should either see the body himself or appoint an officer of his Department to do so. He had actually appointed an officer of the Department to see them. Now, we must not be unreasonable about things like this. It is not possible for a Minister like the Minister for Supplies to see everybody or to see every deputation that wants to meet him. In regard to those matters every Minister must be allowed to decide for himself what is the best way in which to serve the public interest. If I were asked to meet a deputation, and I thought that there were many details which had to be thrashed out, I might see them on general principles and say: "Very well, we have to get this examined by the Department; I will see you again, or make up my mind when a more complete examination has been made." That means three stages; I might see them myself and talk in general, then get a detailed examination made, and then perhaps meet them again to give my final decision. I might, on the other hand, try to cut out one of those stages, and have two instead of three; I might have the examination carried out first, and then meet them when I had all the facts before me.
I understand that the Minister chose the second method, and I see no reason at all why that particular method should not have been accepted. However, I think it is not right to say that things are done without consultation. So far as consultation is possible—when I say "possible" I mean either physically possible or possible in view of the dangers that might attach to it in certain cases— there is consultation.
With regard to this question of greater detection, what we want is more effective administration of the law rather than severe penalties. I said in the Dáil—I was misunderstood there, and I hope I will not be misunderstood here in regard to it—that the certainty of detection is a more effective deterrent than would be a high penalty with the possibility of escaping detection. Between the person who wants something so badly that he is prepared to pay a higher price for it, and the person who wants to sell that article at a high price, there is collusion. It is extremely difficult to get the private citizen to take up the attitude: "It would not be in the public interest that I should do this. If somebody tries to overcharge me, it is in the public interest that I should inform the authorities about it." We have not got to that stage yet, and consequently complete detection is almost impossible. Therefore, we have to rely on the other; we have to say to the person who might be inclined to take a chance for the sake of private gain: "Very well; you may get away with it, perhaps, but if you are caught the penalty will be sufficiently severe." That will make him hesitate, at any rate, whereas, if the penalties are light, there is no deterrent, because the incentive to make money is there all the time. Their attitude is that they may get away with it, and, if they are caught, after all it is only a very small fine; so that you have no deterrent there.
If there is not certainty of detection the only other thing is the certainty that if caught the fine will be substantial. The risk of a severe penalty is there. It was suggested that we were acting as if we did not realise how much farmers had done, or that they were doing their duty. I may say that this is not directed against defaulting community, even against defaulting farmers, as much as it is directed against those contravening Orders made by the Minister for Supplies. The primary purpose, really, is to try to deal with those who are charging excessive and illegal prices for goods that are in short supply. It is true that it can apply also to those who do not do their duty with regard to obeying minimum tillage Orders. There is full appreciation of the work farmers are doing. As one Senator pointed out, it is not very satisfactory for a man who has to struggle very hard to do his duty, to find somebody beside him who could have done his duty with much greater ease, and who has not done it, sneering at him for doing it. It is really to make sure that those who obey the law will not be put into the position that their neighbours who just ignored the public need can sneer, rather than because of any suggestion at all that farmers did not do their duty, that there is such a provision. It was suggested that if we could get after the large scale offenders it would be all right to have heavy fines. The trouble is that very often we do not know who are the large scale or who are the small scale offenders. As Senator Fitzgerald seemed to infer we are not laying down minimum penalties in the Act. We have certain maximum penalties. We are laying it down that the minimum penalty cannot be over £100. We are not specifying the minimum. We are making it possible for the Order to set out certain specific minimum penalties. There is a large range of penalties from the minimum to the maximum.
We are only limiting, to a certain extent, the discretion of the judges. In general we are not taking away the powers of the justices. We are not taking away the power to make those who are guilty in greater degree than what we would say is the minimum offence, be punished accordingly. Talking about taking away the discretion of the justices, I agree with much that has been said about that, and I stated in the Dáil, and I can repeat now, that it was with very great reluctance indeed that we accepted this principle. Most people will hardly believe it, but the independence of the judiciary is far greater here than in Britain, although a great deal of the principles of law upon which we act here have been taken from Britain. The fact is there is far greater independence of the judiciary here than in Britain. Having had some experience on the Executive side I am wondering whether we are right in that. If you take something from somewhere else, and do not take it completely, the success which may have attended it in the other place may have been missed. Ordinary magistrates corresponding to ours have not anything like the security of tenure that our justices have. These magistrates also receive general directions.
That only applies to lower-grade magistrates.
Those that correspond to our district justices.
They do not quite correspond.
They do. What were called "removable" magistrates can be removed. That is one reason why they were called "removables" here in our past history. The fact is that they are not at all as independent as our justices. There is another practice which is common in Britain, that of trying to get uniformity by means of Home Office circulars. We have no system like that.
I believe a Minister for Justice on some occasion—it happened prior to the coming into office of the present Government—sent out some circulars and they were resented, although in general terms and giving only general directions. They were resented by the justices. Generally, it is not possible for justices who have not got the community facts before them, as the Executive have, to appreciate the seriousness of some of the matters they have to deal with. There was a suggestion that it might be a matter of one, two or three justices. It was not. I gave examples in the Dáil from practically all counties, so it cannot be said that one or two people should be dealt with otherwise. It was also suggested in the Dáil that State solicitors when bringing these cases before the courts should have pointed out the seriousness of the situation. Questions were asked as to whether any attempt had been made to give State solicitors an appreciation of the situation, so that it might be put before the justices. That was done. I was asked about it in the Dáil, and I afterwards got a copy of the instructions that were sent out, and it was clear that they were to ask for the severest penalties in view of the community situation. The district justices' work is quite different. They have to do certain things and have not the task of looking after the community as a whole.
In cases like this it was felt by the Government that the only way they could indicate the position was by having in some cases these minimum penalties. I disliked having to do this so much that at one stage in the Dáil I was considering it. Some Senator suggested that the publicity given and the discussions here in Parliament would be quite sufficient and that having gone so far we might possibly reconsider the position.
I do not think that would be a wise course. I considered that and came to the conclusion that it would not be a wise course. At the same time, I believe that Ministers who have to deal with this will not resort to the method of imposing minimum penalties, or specifying minimum or definite penalties, unless they feel certain that that is absolutely essential. I give the House this security, that we are not desirous at all of proceeding in that particular way unless we feel that it is necessary to do so at the present time. There was a suggestion that this was government by civil servants. That was raised in the Dáil. Speaker after speaker in the Dáil referred to this as being government by civil servants. No matter what form of government you have, considering the variety of things to be done and the amount of detail involved, a large portion of the detailed work will fall to be done by those who are classed as civil servants or Government officials. It cannot be done otherwise. It would be quite wrong to think that these Orders are made simply by civil servants. What happens is: A civil servant dealing with a particular branch comes to the Minister and tells him that a certain thing has happened or, if the Minister observes the matter in the first instance, he consults the civil servant. They consider how they are going to deal with the situation. Some general principles will, probably, be discussed and, then, the civil servant will be told to bring the Minister the heads of an Order that he thinks necessary. That is after the Minister has given his general assent. The heads of the Order are brought to the Minister, who considers the matter again. If it is a Ministerial Order which does not go to the Government, he may ask other advisers for their opinion.
If it relates to a particular section, he may consult the head of the section in connection with it. Before anything is done, there is always a great deal of discussion. If it is an Order which comes to the Government, it goes around the various Departments whose views are taken upon it. Although, in the nature of things, civil servants have a great deal to do with administration and with the details of proposals, it would be a mistake to think that Orders like these are made simply by civil servants. Ministers have to apply their own minds to these matters.
It has been suggested that this is a lazy way of dealing with the matter and that there is a number of other remedies. I have not heard of any. A more thorough administration of the law has been recommended. That is being attempted but the temptations are so many and the variety of things being done is so great that it is not reasonable to say there is another, and easy, remedy. I agree that every effort should be made to secure detection and enforce the law to the fullest extent. That can go on side by side with the efforts we are making in another direction. I have not learned of any other remedy and this is a remedy which the Government have been very loth to adopt. Senator Concannon answered the point made by Senator Fitzgerald about the Government taking powers. Any powers the Government have got, they have got either through the Constitution or through Parliament. In our system of government, the Executive is constantly under the supervision of Parliament, so that it is not right to say that the powers asked for are just taken. With regard to a remark by Senator Fitzgerald about the attitude of the Government towards the ownership of land, I can only say that the attitude of the Government, of Parliament as expressed at the time, and of the people in so far as they deliberately approved of the Constitution, is contained very largely in the Constitution. The main principles in regard to the right of private property, the duties of private property and the powers of the State in regard to the exercise of private ownership are set out in the Constitution and they are set out in the most authoritative way they could be set out. It is not a question of hearsay or of some Minister saying this or that. The right to private property is recognised but the right to delimit for the common good the exercise of the right of private property lies with the State.
Senator Campbell spoke of Orders Nos. 83 and 166. I was glad he did not suggest that these Orders had been made, so to speak, behind the backs of Parliament. The subject matter of these Orders has been discussed several times. The two Houses had ample opportunity of discussion and, time after time, we have explained the principles behind them. They are designed to safeguard the poorest section of the community because they are the section who would suffer most if you had this chasing of costs and prices. It was suggested that, while wages had been controlled, prices had not been controlled. I do not think that that is true. An effort has been made to control prices, but certain circumstances prevent that effort being effective in all cases. We cannot control the price of raw materials or of other things which we get from outside, and the cost of these enters into the ultimate price. In certain cases, it has not, therefore, been possible to keep prices down but, wherever possible, the effort has been made and made with considerable success. Indirectly, there is a considerable limitation of the prices which might possibly be charged for agricultural produce. If the farmers all combined and said that they would hold the community to ransom until they got the price they wanted for wheat, you would have a very different price for bread from the price we have at present. Indirectly, in that way, we have tried to balance matters as regards the various sections and spread the burdens of the present situation as evenly as possible. As we pointed out at the opening of the emergency, it is not possible by any method to lighten the effects of the present war. The community, as a whole, must carry burdens. All the Government can do is try to distribute the burdens as fairly as possible. Some of the lower scales of wages were not affected by these Orders. Certain limits were fixed. The whole matter has received a great deal of public attention. It is vain, however, to think that matters can be so arranged that no section of the community will have to carry a burden at the present time.
We do not see any way in which we can save the community as a whole from having burdens. All we can do is to try to the utmost of our power to distribute those burdens as best we can. If we were to go into that whole matter we would have quite a debate all to itself. I can only say that, in general, the attempt is made to see that no section will avoid having to bear a portion of the burden, and we try to adjust the burden so that the strong shoulders will carry the greater part of it. It is not easy to operate it out evenly in all cases, but that is the principle behind any action taken by the Government.
Will the same practice prevail under this Act as under the Finance Act, if, where a breach of the customs regulations were committed and a person were found guilty, the justice has the right to recommend a mitigation of the fine? In this case, will the justice be entitled to send a recommendation to the Minister for Justice, if he thinks there are extenuating circumstances?
I am glad that that case has been mentioned. In the existing law there are two or three examples of it—the Customs is one, the Fisheries is another, and the use of explosives is another—where there are certain minimum fines and certain ways in which appeals are made. In this case, if a justice writes privately to the Minister for Justice about a particular case where there is hardship, or if the matter is otherwise brought to the Minister's notice, he will consider any extenuating circumstances. One of the Senators found fault with this method of appeal. I agree it is not the best way. At present the Minister for Justice has the power to mitigate fines. When an appeal is made to him on some grounds, with regard to a particular case, he will try to get all the information he can about it. He will get the file about the case from the State solicitor. There are obvious objections to district justices publicly making appeals of the kind mentioned, but I need not go into that now.
If a justice writes to the Minister privately about a particular case, the Minister will take it into consideration. The Minister also will get into touch with the Department concerned, to investigate the facts from their point of view. In other words, he will get all the information he can, and will, or will not, then mitigate the punishment, whatever it may be. He will, of course, also be in touch with the Attorney-General's Department. He will have to decide whether there are extenuating circumstances or not. When the Legislature has sanctioned minimum penalties, he will—and quite properly so—be very slow to mitigate the fine, unless there is exceptional hardship.
Every effort is being made to see that the Orders will be made available as quickly as possible. It may be possible to have them cyclostyled and made available more quickly. The desirability of that is understood, and though there are certain practical difficulties, every attempt will be made to overcome them.
Question put, and agreed to.
Agreed to take the Committee Stage now.