For the purpose of clarification, I would like to know exactly what this section may mean in certain circumstances. There is power under the section to make retrospective amendments to a Government Order. If I commit a breach of the tillage regulations and have not been prosecuted up to the time that this Bill becomes an Act, and if I am not prosecuted then, am I to be subject to the minimum penalty prescribed under this Act?
Emergency Powers (Continuance and Amendment) Bill, 1942: Committee Stage.
Sections 1 to 6, inclusive, agreed to.
SECTION 7.
Question proposed: "That Section 7 stand part of the Bill."
Section 8 (a) (i) says:—
"In case the offence is one in respect of which any Order, made by virtue of the next following subsection, is in force at the time the offence is committed,..."
The Order must be in force, prescribing a minimum penalty, before the offence is committed. If the Order were made immediately after this Act is passed, specifying an offence and prescribing a minimum penalty, and if the offence were committed after that, the person convicted would be liable to the minimum penalty. In regard to tillage, ploughing, sowing and reaping are supposed to be done: you have to till, sow and gather, and it would not be sufficient to till the ground and not sow it, or to sow it and neglect to reap it. I was particularly slow to deal with that point, as I do not know how much of the offence it would be possible to hold over after the making of the Order. I take it, however, that the tillage Orders that are covered by this have been made already, and I do not know that there would be any amendments of these tillage Orders with respect to what you might call this tilling year—that is, until the harvest—but it might apply for the year after.
I am not sure of what the position is, and perhaps the Taoiseach would let us know. It is quite conceivable that some of these offenders have not yet been brought into court. There may not be such cases, but if there are I should like to know what the position is. Some of these people may not yet have been brought to trial, and if they are brought to trial after this Act is passed, are they going to be subjected to the minimum penalty, or will they be in the position of those offenders who were brought to trial before this Bill became an Act?
Surely the position is that they cannot be submitted to a higher penalty than the penalty that existed on the date of the particular Order concerned at the time of the offence?
That is so.
On what date was the offence committed, if a farmer fails to till his proper quota of land?
Senators are asking rather difficult questions now. They are technical questions and I do not want to commit myself to an answer. All I am anxious about is that the Seanad should know exactly what they are doing. Of this you can be quite certain, at any rate, and that is that an Order under this Bill cannot impose a penalty for any offence except one that is committed subsequent to the making of the Order.
Exactly.
I am satisfied.
The offence for which a man would be charged would have to be an offence subsequent to the date of making the Order.
Exactly.
I think it is rather important to understand the whole position here. Is it not intended to provide for retrospective Orders in general? What might happen, in effect, is that a newspaper announcement would be made saying that an Order had been made for the purpose of doing certain things, but it is found afterwards that, whereas the intention was in a certain direction and, probably, many people were carrying it out, the Order, in effect, did not deal with the matter specifically and, therefore, has to be made retrospective. This, I understand, means that the new Order cannot involve anybody in the position that they have broken the law at a time when it was not the law, even though it was the practice. Otherwise, if you are going to have, generally, Orders of a retrospective character, they would be unworkable and would only lead to chaos.
Since Section 8 had been referred to, my reply was in connection with Section 8, but if I had confined myself to Section 7, it would have been better.
Mr. Johnston
I should like to say that I have known of a good few cases, some of them this year, and some at the time when the first Order was made, of farmers who are not complying with the spirit of the regulations, although, possibly, they comply with the letter. Some of these people ploughed land that was unfit for tillage—unproductive land. They sowed the land with a crop, say, of oats, but that crop was never reaped. I know of particular cases this year, in my own county, where ground was ploughed, and something in the nature of seed was put over it to comply with the regulations, but no crop will be produced on that land.
That is not like Monaghan.
Mr. Johnston
No, it is not like Monaghan, but there are people there just as in other counties who, to a great extent, are defying the tillage Order. I can quite understand people getting exemption because it is impossible for them to till, but there are some farmers in Monaghan who are out to defy the Order, to defy the Government, and to act in defiance of everything that we all recognise as being necessary if we are to provide food for the people at the present time, and I hope that such people will not be allowed to escape without being penalised.
Section 7 put and agreed to.
SECTION 8.
Question proposed: "That Section 8 stand part of the Bill."
With regard to Section 8, which imposes minimum penalties, I must say that I am quite unrepentant in my opposition to it. In the first place, taking the point that the Taoiseach himself made, I am wholeheartedly in favour of co-operation with the law and with the officers of the law on the part of citizens, but it seems to me that the imposition of the minimum penalty will reduce that co-operation, and there will be less likelihood of people helping the police if they know that if a person is found guilty, no matter what are the circumstances, a minimum penalty of a substantial nature must be imposed. The Taoiseach explained quite clearly that this section gives power to the Government to make Orders prescribing minimum penalties, and we are told that these Orders will not be made except in extreme cases and except the Government is pushed very far on the matter. That, I think, is very satisfactory, but in spite of all the talk about farmers who do not till their land, this particular section cannot possibly be directed against them or be intended to be directed against them, because the number of farmers who are not complying with the tillage Order is very small, so small as to be insignificant, and so small as to render it rather foolish to be talking about the men who are not tilling their land laughing at the others who are tilling it. The percentage of farmers over the whole State who are not tilling their land is so small, according to the figures that have been given, that there cannot be very much laughter and it cannot be hurting people very much.
They are setting a very bad example.
But it is not being followed, and in any case the number is very small. This is really directed against excessive prices. The Taoiseach himself said that it is directed, not so much against the farmers who are defaulting, as against those contravening Orders made by the Minister for Supplies, and that the primary purpose of it is really to try to deal with those who are charging excessive and illegal prices for goods that are in short supply. I was very much struck by the fact that the Taoiseach is rather repentant of the independence that the judiciary enjoy in this country. Now, his analogy with the British, I think, is quite untrue and quite false, except with regard to a particular type of magistrate. These district justices were appointed here, in our circumstances, to do a rather difficult job, and, on the whole, that system has worked out very well. In spite of what we see now and again in the newspapers which give publicity to a particular type of statement, from what I can hear, all over the country, the system has worked out very well. Being Irish, the district justices, perhaps, are too touchy about their dignity, and object, perhaps needlessly, to getting a circular about one thing or another, but I think it would be foolish, in our circumstances, to take power from the judiciary and hand it over to the Executive. I think the very fact of our lack of experience of independence, which is only 20 years in existence, makes it more imperative for us than for other people that we should preserve that independence which, in spite of difficulties, has worked out pretty well. The Taoiseach explained, in reply to a question by Senator Counihan, that the district justice would not have power, in open court, to say that he would recommend mitigation of a fine, as he does in other cases.
I did not say that at all. I do not think I said that.
At any rate, the position is that in connection with the Revenue Acts, the district justice has power given to him specifically to recommend to the Revenue Commissioners a mitigation of the fine, and he frequently says in court that he imposes a minimum fine but will himself recommend mitigation. That power is not positively given to him in this Bill. Perhaps he still has it, but I think the Taoiseach did say that what he hoped would happen would be that the district justice would communicate privately with the Minister for Justice, that the Minister would get all the relevant facts, and come to a decision. I do not want to delay the House, but it is quite obvious to all of us that no Minister can give personal attention to a great variety of cases, and that no civil servant, examining the file, can be in the position to do strict justice in the same way as the person who hears the case, listens to the evidence, and sees the witnesses. The Taoiseach said that the Minister for Justice will have the file before him, but it is the prosecutor's file that he will have before him, and we all know it. There is no use in pretending the reverse. The prosecutor will have more power with the Minister for Justice than the defence. If the Minister for Justice consults the Department of Supplies or the Department of Agriculture, in effect he is consulting the prosecutor. The Taoiseach mentioned the Attorney-General's Department. I do not know whether he had given any thought to that. I do not think the Attorney-General's Department will come into it at all. I think that if they prosecute that is an end of the matter for them. The whole procedure is heavily weighted against the offender.
Everyone who has had experience of administration, of examinations, or of administering any kind of regulations, such, for example, as the regulations of the Civil Service Commissioners, knows that it is very difficult to measure every case by the same measuring rod. You have different circumstances arising in different cases. It is much simpler for the person who tries the case to specify the penalty. Let the State have the right of appeal to the Circuit Court judge if necessary, or have the case brought before a particular kind of court, such as a military court, but to pretend that it is a solution to have a minimum penalty and that there is any mitigation of that penalty to be got by appealing to the Minister, who, in all the circumstances, no matter how much goodwill he has, is more in the position of a prosecutor than a judge, is not fair. Apart altogether from the question of fairness, I do not think that in the end, in our peculiar circumstances, it will work.
I was very sorry indeed to hear from the Taoiseach that he has now doubts about the independence of the judiciary. He is apt to feel that anything which interferes with his own political schemes is not only bad in practice but in principle. That has been his theory all his life. He believes in something until he finds that it does not suit his Party, and the moment he finds it does not suit his Party he says it is bad in principle. He did it notoriously in the case of the Seanad. When the Seanad opposed him, he discovered a principle and argued it with great skill and very little knowledge—that there should be no Second House at all. Then he made another one nearer to his heart's desire, and here we are. I was very sorry to hear him throwing cold water on this matter of the independence of the judiciary. He has been in power for ten years. He has made every single judicial appointment as a result of Party service, and still he is not satisfied.
I did not intervene on the Second Reading as I preferred to wait until we came to this section. I have not had the advantage of a legal training such as many of those who spoke on this Bill, particularly on this section, in the other House. I have not had the experience of administrative work that Senator Hayes and others here had. I can only approach this Bill and this particular section as a plain man in the street and look at it from the point of view of what exactly the reactions are likely to be. From what the Taoiseach said this evening, I regret that he has not been prepared up to now to differentiate between this method of dealing with farmers who transgress and those other people of whom we hear so much who are operating in the black market. I feel, definitely, that the two offences are not comparable. The offence of the individual who, for some reason or other, does not till the requisite area of land is a sort of negative act on his part. In a great many instances there are understandable reasons and, from the point of view of the administration of justice, justifiable reasons, why this may not be possible. It is an entirely different situation from that of the individual who goes into the black market and charges outrageous prices to rich and poor alike. In my view, they are not comparable. If the Taoiseach had been prepared to separate these two offences, the approach to this particular section would have been somewhat different.
As regards its reactions or effect on the individual farmer, I should like to say this. The Taoiseach indicated that when an Order is made it may be that they will not specify this minimum penalty in the form in which we appear to have an indication in the Bill it will be applied. He says it can apply to farmers. Whether that is an indication that there is a feeling that applying it in this particular way to farmers may not be wise, I do not know. But, if that be so, it is a welcome acknowledgment from the Taoiseach of the difficulty of the situation. I put this to the Taoiseach. Whatever may be said by individuals, everyone must admit that the farmers have done a magnificent job of work and the few who have not done what was required of them have not the least influence on other people. It is indeed quite possible that the type of person to whom Senator Johnston alluded is a person whose example a decent farmer would be ashamed to follow. It is quite possible that if some of these people advocated an increased area under tillage, we would all stand aghast and wonder what was behind it. What can you think of the man who in a time like this ploughs up the worst land he has, and sows it with the worst seeds because he never means to reap it? Certainly the idea that we ought to make laws to deal with that sort of person and that the same laws should apply to decent people——
That is the trouble— they must.
That is what I want to come to. This is how it strikes me. I have very little experience of offenders against the tillage Order. I do not think I heard of one in my county and cannot speak with any direct knowledge. But my view about the problem which tillage inspectors are up against is this. An inspector goes to a farm and finds a widow there whose husband died just before the spring when the work on the land should be done. We know the conditions that that woman has to face. She may have a couple of hundred acres of land and the requisite area is not being tilled. Therefore she is liable to a penalty and must be brought to court. What I feel about it is this. You specify a minimum penalty and a tillage inspector visits that farm. I know some of these inspectors. They are sensible, practical men, farmers' sons, competent judges of land, very well acquainted with the farmer's capacity to do his job and the machinery a farmer must have to do it. When such a man goes to a farm like that and hears the woman's story, he knows that it is quite impossible for that woman to comply with the law. What I am afraid of is this: that, put up against a proposition like that, he will be disposed not to make a report in that case or to bring that woman before a court, when he knows that the woman will be fined the minimum penalty of £100. He knows what she has got in the way of crops and stock and sees what the effect of a penalty like that will be so far as her future prospects are concerned. I think that is a temptation.
I think that is a very unsatisfactory position in which to put our inspectors. In view of the fact that the number of offenders is so small, it is not the way in which we ought to make our law. It does not make sensible law. If we have law that cannot be applied it denotes very bad judgment on the part of the legislators or the executive. It is very bad judgment on their part if they make a law the application of which causes cruelty. What is the net result? Suppose an offender is brought to court and is convicted and the penalty imposed, I frankly believe that the effect of that decision in the district court, despite the fact that all the circumstances were put before the justice, would be that the people of the country would be convinced that a great injustice had been done. I do not know whether the district justice in such a case would be entitled to say that the circumstances of that case were very hard but that his hands were tied, and that he had no alternative to imposing the minimum penalty. Whether he said it or not, the people of the country would believe that an injustice had been caused. That sort of thing is bad for the law. In view of the immense efforts farmers have made and in view of the fact that there are so very few defaulters, and in view of the difficulties confronting defaulters, I question the wisdom and judgment of applying this to our farming community.
If we have got an increased area under tillage it is not because of the threat of the law. It is much better that we should try to stir our people to do their duty for reasons other than fear of the law. There are higher motives and there should be a higher aim than just mere fear of punishment. It would be better to cultivate in our people a spirit of patriotism and an abhorrence of the sort of Monaghan man who would go out and do the sort of thing that Senator Johnston told us had been done. It is very unlike Monaghan. Anyone who passes through Monaghan must know that the farmers of Monaghan are not following the example that Senator Johnston referred to. What these few people do does not count. If every other county in the country did 60 per cent. of what the farmers in Monaghan have done there would be no fear of a shortage as far as tillage is concerned.
There is another point about getting compliance with the law from those engaged in black-market operations. I feel that the crime is not being detected to the extent and with the speed that it would be if the police had the administration rather than the Department of Supplies. I know of offences that have been committed, and, as far as I understand, the Gárdaí are not in a position to bring prosecutions. The prosecutions have to be brought by the Department of Supplies, and a very considerable time elapses before the prosecutions can be brought. If people are overcharging or engaging in black-market operations, it seems to me that it would be much more satisfactory and much simpler to have power given to the Gárdaí to bring the prosecutions. In that way, offenders would be brought up before the court immediately after the offence was committed, but, as I understand it, weeks and weeks elapse before a representative of the Department of Supplies can get his hands on the offenders. I think a great many of the offences that have been committed would have been stopped much more quickly if the law were being administered by the Gárdaí.
I do not know what the Taoiseach has to say to the point I make as to the justification for differentiating between the sort of offence that he contemplates the farmer who is not performing his tillage is guilty of, and the offence of which the other man who is operating on the black-market is guilty of. My opinion, however, is the opinion expressed by Senator Hayes and others, that whatever mistakes district justices may have made—and on that I am not going to pass judgment—when all is said and done, I think there is no scheme better than the scheme that operates at the moment where the man hears the case in the area where the offence was committed, and hearing both sides of the case, comes to a decision. I think that is the best method of all, and when you are departing from it I do not know that you are going to improve upon it.
If the method by which it is intended to deal with offences in the future does not turn out in the eyes of the people to be more just than the method that has been employed up to now, the status of the administrators of the law will not be raised in the minds of our community. That is the main essential. I recognise the difficulties that face the Government in the present circumstances but I do not know that rushing to extremes in the manner suggested and the imposition of this minimum penalty is going to help. Very likely it will mean great injustices in certain cases which, in my opinion, would do much more harm to the administration of justice than that an occasional defaulter should get away with it.
There may be some objection to the section or some reason why the minimum penalty should not be imposed but, if there is, we have not heard it here. I suggest, with all respect, that there is no sincerity whatever behind the statements made in connection with this section or behind the objection made to the minimum penalty. Of course, it is no surprise to me or nothing new to the House to hear Senator Baxter setting himself up, like the highwayman in the songs long ago, as the protector of the widows and orphans in distress, but he says that because only 2 per cent. of the farmers have been offenders there is no need for this severe penalty. That theory may also be applied to any other crime.
Is it not two per thousand of the farmers, not 2 per cent.?
I am glad the Senator has made that correction because I was just coming to the point that if it was only two per 1,000 or two per 10,000 there would be the same reason why the penalties should be imposed. Fortunately for us, and fortunately for the country, the commission of certain crimes is very rare but, notwithstanding the fact that, perhaps, one person in 200,000 commits a certain crime, a certain penalty exists to meet that crime and nobody would suggest that the penalty should not be insisted upon. I think if we are to be consistent, we must adopt the same attitude in this matter. I see no reason whatever for the attitude of Senator Baxter that the penalty should not be insisted on because only 2 per cent. of the people might possibly come under the lash. If he is right and if he is sincere in that statement it is only natural to assume that Senator Baxter believes that the other people will not be affected at all. Therefore, his sympathy is wasted.
In the case he is talking about the decision is left to the judge who tries the case. In this case it is not left to the judge.
I suggest that Senator Baxter should not adopt the attitude of a man who would make excuses for people who, in our present circumstances, would refuse to co-operate and to do what other farmers are eager to do morning, noon and night. Senator Baxter says the minimum penalty might appear as a great act of injustice. It would perhaps appear as a great act of injustice if we can get people in public places such as this to suggest that it was a great act of injustice. If they were to keep on talking like that, a certain number of people would begin to believe them.
I suggest there is no reason why the minimum penalty should not be imposed on the few people who would offend in this particular way. Senator Baxter suggests, in the case of the widow, that when the inspector would come around and would know that a penalty was sure to be imposed, he would not be inclined to report the case. I do not believe that that would happen. I believe that if an inspector is sent out to make a report on conditions in a certain area, in 99 out of every 100 cases he will report exactly what he has observed and then it will be a matter for somebody else to deal with.
Senator Hayes was just as inconsistent. He said that because of the minimum penalty people will not co-operate; that they will not report cases because of the fear that the offenders may be too heavily penalised through this minimum penalty. To use his own words, more or less, Senator Hayes, being an Irishman, will realise the reluctance of the people to report offences against this or any other Government. Having been a member of a former Government, Senator Hayes will, no doubt, realise the difficulty of any Government in getting the whole hearted co-operation of people to the extent of the reporting of crimes even of a——
Major order.
——nature just as serious as this. I think the people to be considered in this case are the inspectors, and what should be taken into consideration is the attitude of the Department and, rather than try to cater for the soft-heartedness or the good nature of certain people who cannot see their way to co-operate for the general good, Senators should take into consideration the Department on which has been thrown the responsibility for this scheme. They should consider the importance of maintaining the morale of those inspectors who have a very difficult task to perform and in respect of whom, if they did not feel that some result was going to come from their efforts, and that some action would follow on their reports, the natural tendency would be to become lax in their duty.
I was somewhat puzzled by Senator Baxter's line of argument. He claimed exemption from the minimum penalty for farmers on account of the possible hardship of the tillage Order. But there are other offences, serious offences, which farmers may commit, such as black-market offences, withholding their produce, refusing to sell produce at the fixed price or feeding wheat to animals. Surely the Senator does not suggest that offences of that kind should be overlooked?
Senator Baxter does not believe that the farmers do that sort of thing.
I spoke at some length on the Second Stage with reference to the minimum penalty and I do not propose to repeat my remarks, but there are certain specific considerations which I should like to add to what I then stated. It seems to me that there is a good deal of misapprehension in connection with this section. Unless I have completely misread it, it does not seem to me that the passage of this Bill will necessarily provide any minimum penalties. What it will do is to give the Government power to provide minimum penalties for specific offences and to do so by means of emergency Orders. I did not put down amendments, partly because I did not think it was any use, and partly because I am puzzled by the existence of Section 8. I thought the Government had the power to do it, and, if they had provided an Order under the Emergency Powers Act with minimum penalties in it, it would never have occurred to me that under the previous Act they had not got the powers. I am doubtful at the present moment as to whether they have not got them.
As regards the attitude taken by Senator Quirke, it seems to me that he is so enthusiastic for the application of minimum penalties in general that he cannot believe anyone who opposes them is perfectly sincere.
I did not say "anyone".
I happen to be one of those who are opposing them. I do not mind whether or not Senator Quirke thinks I and others who have spoken here are sincere. If I understand the position of the Taoiseach properly, I think the Government recognise that there are perfectly sincere arguments against, and genuine dangers in, the use of the minimum penalty. I want to put it to the Taoiseach and the Government that they should not exercise the powers which they either are getting under Section 8, or which, as I think, they have already, until some time has elapsed and until they are quite satisfied that the justices cannot be persuaded to apply suitable penalties, having regard to the circumstances. There is no obligation to apply this to the tillage Order and it does not seem to me that it is very likely to be immediately applied to the tillage Order, judging by the debate in the Dáil and the remarks of the Taoiseach here.
I do not see any reason why a circular and, preferably, a public circular, having regard to the views which have been expressed by all Parties, should not be sent to the justices, drawing their attention to the serious effect on the public of certain types of offences and to the necessity of imposing adequate penalties in cases where it is clear that those were offences of such a character that the persons committing them must be aware they were breaking the law.
Senator Baxter and Senator Quirke and others referred principally to tillage and they assumed that this would apply to tillage. I do not know anything of the position with regard to tillage. I naturally referred to matters I knew something about and I did so because my understanding was that it was mainly in connection with Orders affecting rationing that it might be proposed to apply these minimum penalties. I know that there are offences in connection with rationing for which high penalties may be fully justified, but I equally know that in connection with the same rationing it is perfectly possible to break the law in a manner which is absolutely inadvertent and which has no moral offence in it at all. You can get, in a rationing Order, offences of the most trifling character and, in the same Order, you can get offences to which you would have to apply maximum penalties because they might be offences of a serious character.
I urge on the Government to try, as far as possible, to maintain the existing law by which a justice can distinguish between those two, and not to apply minimum penalties until they are satisfied that these public discussions, and possibly other steps they can take, including a circular sent as a public statement to justices, drawing their attention to the position, have not been effective. I think if the Government acted in that way it would be very helpful. I still think that such action, plus this discussion here, may tend to make the imposition of minimum penalties unnecessary.
I hope, in spite of what Senator Quirke and others have said, that the Government will see that there is a sincere opposition, and that there are people who feel that it might be a mistake to apply the minimum penalty, particularly in such an extreme case as was mentioned by Senator Baxter, that of a widow who could not possibly hope to meet such a penalty. Senator Quirke sees no reason why the minimum penalty should not be imposed in that case. He is quite entitled to that view. I can see very good reasons why it should not apply, but I am not concerned with that. I am concerned that there should be some independent person who would be able to judge whether or not the same penalty should be applied there as in another case.
Progress reported: Committee to sit again.
The Seanad adjourned at 9.5 p.m., until 10.30 a.m., Friday, 24th July.