The case was made last night that there should be an appeal from the arbitrator appointed under this section to the High Court. I am opposed to that suggestion. So far as I know there is no example of legislation where an appeal is allowed from the decisions of a legal arbitrator. Frequently statutes providing for arbitration in technical matters by engineers, surveyors, architects or persons of that kind allow for an appeal on issues of law to a court. In this case where the arbitrator will be presumably a legal personage an appeal upon questions of law to the courts would be contrary to practice. It is true that the section does not require that the arbitrator will be a person possessing legal qualifications but the arbitrator has to be appointed by the Chief Justice and, again, there is no known case where the Chief Justice has not appointed a person of legal experience as arbitrator in such matters. I think it is desirable that the arbitration proceedings contemplated by the section should not be unduly costly and that there should be finality in the arbitrator's decision. I am reinforced in my view in that regard by reason of the fact that in previous transport legislation, both in the 1924 and 1933 Acts, the procedure was precisely as contemplated here and while there were proceedings in the court arising out of the provisions of these Acts, I do not think it could be said that the finality of the arbitrator's decision proved unjust to anyone.
Transport (No. 2) Bill, 1944—Committee (Resumed).
It is because of the similarity between the legislation in the 1933 Act and this Act that this amendment is submitted. It is very unsatisfactory when you find arbitrators taking exactly opposite views of the same set of words. In one case it was held by the arbitrator that if there was a reduction in the cash value of the traffic handled, irrespective of the grounds on which that reduction arose, that was a case of diminution of traffic which put the applicant outside the Act. Another arbitrator held a totally different view as to the meaning of the same set of words. I think the Minister will find in the long run that it would mean less litigation to permit an appeal on a question of law or on the interpretation of the law. It is not a question of the facts. The arbitrator is qualified to determine the facts or he should not be an arbitrator at all. I think it was Senator Kingsmill Moore pointed out last night that where you have an idea of an appeal in the background it does impose a certain responsibility on the arbitrator, the court or whoever is deciding the case. I do not think the Minister will find that the amendment will lead to litigation. On the contrary, in my opinion, it will secure that there will be a common pattern throughout the proceedings, irrespective of who the arbitrator will be, and in the long run it will save time.
May I suggest to the Minister that these are the very questions on which there should be a case stated? The provisions of the Common Law Procedure Act make it possible——
I know of no case of legislation passed by the Oireachtas providing for a legal arbitrator where that is done.
I am suggesting, in case of arbitration, the principle that there should be a case stated if necessary. You have it in the Common Law Procedure Act, you have it in the Arbitration Act in England and there seems to be no reason why there should not be a similar procedure where the arbitrator is appointed by statute. The case stated is not subject to any of the objections which I think the Minister has in mind. The facts are set down shortly and the question of law only is submitted to a higher court. It is really designed to assist arbitrators and to avoid difficulty which may be created by the fact that arbitrators may take different points of view. The courts shall merely be asked to state what the law is on a given set of facts submitted in writing by the arbitrator. The facts are agreed to by the various parties and it is a comparatively inexpensive matter. The only case in which it may be at all expensive is where the question of law is so complicated that it involves a rather lengthy argument. I do urge on the Minister, in spite of what he said, that not only is it not in any way contrary to arbitration proceedings, but it is of the essence of arbitration proceedings that the opinion of a higher court can be sought on a question of law, both in deciding a particular case and also for the purpose of guiding the arbitrator in future proceedings.
I would say that it is of the essence of arbitration that the decision of the arbitrator should be final, and I would go further and say that the view that an arbitrator would give a better judgment because of the possibility of an appeal against his decision is contrary to commonsense. It is far more likely that the arbitrator will be concerned with the validity of his decision, and give greater care to the matter, if he knows that there is no appeal from his decision, that if he knows that there is, and I think that commonsense would suggest that.
That has not been the practice.
I disagree. I say that it has been the practice, not only amongst arbitrators but amongst the judiciary. As regards the interpretation of those words, I want to point out, in reference to what Senator Duffy said, that the decision of the arbitrator in the Kerins case, which was quoted last night, was not given simply on a question of economic causes, but on the grounds of maintenance.
I argued that although these were company decisions the facts were substantially the same in both the Peate case and the Kerins case.
I move amendment No. 35:—
In sub-section (8), paragraph (b), page 21, before the word "measure" in line 2, to insert the word "and"; and to delete all words after the word "costs" in line 3 to the end of the paragraph, line 5.
I should like to press this amendment rather strongly on the Minister. The effect of the amendment is that the provision in the Bill under which the arbitrator, I do not say shall, but might require a person of limited means to give security is contrary to everything that we know of in our legislation and in our legal procedure in this country with a few very minor and insignificant exceptions. So far as the principle is concerned, I am afraid that there is already too much truth in the belief that even so far as justice is concerned it is heavily weighted on the side of the big corporation against the man of limited means. It does not matter to the big corporation whether it goes to the expense of consulting a solicitor, a junior counsel or a senior counsel, or even bringing in more than one senior counsel, but for the small man it may be a matter of absolute vital urgency to him whether he can provide for the proper advocates to argue his case, and to put in the proviso that, in addition to that, he can be asked to put down security for the costs of the arbitration appears to me to be most unreasonable. It is a peculiar analogy that in the High Court the only case where security can be asked for is where the person does not reside within the jurisdiction. That is the only case where an individual, suing, can be asked for security. Even if the individual is an undischarged bankrupt he cannot be asked, according to the proceeding under the Judicature Act, to give security in the High Court, and it does not seem reasonable to me, in those circumstances, that we should allow, not direct, as I admit, but even allow the arbitrator to get into the position of having Córas Iompair Éireann requesting him, in any case, to weight the scales even further in its favour by asking a man who feels that he has a grievance to put down the cost of the proposed action before it has been decided.
The provision proposed here is precisely similar to that contained in the 1926 Act and the 1933 Act, and there is obviously a good reason for such a provision. It is to be assumed that after the amalgamation takes place certain employees will lose their employment for a variety of reasons. If there is no risk involved, clearly, every such employee will at least take his chance before the arbitrator of having a decision in his favour on a claim for compensation in accordance with this measure, and it is to ensure that the proceedings before the arbitrator will be limited to bona fide cases that this provision is inserted. I assume that it was for a similar reason that it was inserted in the 1926 Act, and the 1933 Act was modelled upon the previous measure. I know that in the majority of cases where proceedings were taken under these earlier measures the workers concerned were supported by their trade unions and most of the important cases were fought by the trade unions with a full array of counsel, and not by individual workers, but it is possible to contemplate that there would be workers who might feel that they could make a claim even though their unions were not prepared to support the claim, and in such cases it would be obviously unfair to put the company in the position of having to defend every case, no matter how unsubstantial the claim might be, if it had already been decided upon or else was outside the scope of the measure. It would be unfair to expect the company to defend every case unless there were good grounds for contending that disemployment was the result of the amalgamation.
The Minister's case is, first of all, that the arbitrator will prejudge the case before it is heard, because to argue that the necessity for these sentences is that there is no possibility of the case succeeding is prejudicing the issue. Secondly, the Minister's point is that otherwise there would be no deterrent on a man bringing before the arbitrator a case which he knew had no chance of succeeding; but if a man knows that his case will not succeed, then he also feels that, after the case is thrown out, at the end of the hearing, he is going to get a judgment against him, and the company can if necessary, by the application of court orders, obtain weekly deductions from his wages to meet the costs that have been awarded against him. It does not appear to me that, in those circumstances, the Minister can say that there is no deterrent. I would suggest to him that, no matter whether it was accepted in previous legislation or not, he should strike the right note in this legislation.
Has the Minister any information as to what was the effect of a similar provision in earlier legislation?
I would say the effect was to strengthen the trade unions.
I wonder though were there any applications turned down because of the requirement to make provision for costs?
I do not think so.
I would ask the Minister to give way on this point. What I do not like about the Minister's attitude towards this measure is that, where he wants to get his way, he pleads some previous legislation, and where he sees fit he simply cuts away from that altogether and starts the most striking innovations, like the giving of those powers to the chairman. Surely it is rather petty on a matter of this kind to ignore human values and take your stand on some previous legislation. Could not the Minister take a little more wide and generous attitude? I dislike the bringing up of all those petty things like that matter yesterday about sending out a report to the shareholders— trifling little items of that kind. Here is another trifling little concession, and the Minister's attitude is to ignore the human values altogether. Is it not a pity to try to put those obstacles in the way of a person who feels he has a grievance? I think it is altogether unworthy of the Government to adopt this unyielding, implacable attitude.
I quoted previous legislation to show that I am not here introducing a new provision. I wanted to make it clear that this is not something thought out for the purposes of this Bill—something which did not apply in respect of previous legislation. I think it is desirable that there should be some deterrent on people taking proceedings in cases that are frivolous, or so far removed from the provisions of the Bill that they could not possibly succeed. Senator Duffy asked if there were any persons whose cases were not brought to decision because of a similar provision in other legislation. I do not think so. I am aware, and, no doubt, the Senator is also aware, that there was a large number of workers whose cases were not fought because their trade unions decided that there was no possibility of succeeding.
The difficulty about the whole matter here is that you have, on the one hand, a big railway company, a company bigger than any contemplated by previous Acts. This new company, Córas Iompair Éireann, will be a very big company indeed. You have that on the one hand, and the big trade unions on the other hand. This is a piece of legislation which wipes out the individual who does not happen to be agreeing with the company and does not happen to be agreeing with the trade unions, and there is a very interesting light on the discussion in this agreement between the Minister and Senator Duffy, who is in sympathy with the amendment, because the amendment stands for individuals as against trade unions.
I am vehemently against that allegation.
There is a deterrent here. Supposing I think I have a grievance against the company and I want to bring my case before the arbitrator. My trade union refuses. I must convince some lawyer that he ought to appear for me. I cannot appear myself; if I do, I will get scant hearing, I presume. The individual must be given as much help as he possibly can get against all the various things that are pressing against him. If a man wants to appear before this arbitrator he surely must have a counsel. There are certain deterrents. He cannot bring forward his case without incurring any liability. He must incur liabilities. He must have his case argued legally before the arbitrator, and to do that he must incur costs. As Senator Sweetman has pointed out, he will incur certain liabilities, even if they are only for paying costs by instalments. It does seem to me that that is going to prevent any individual from making a frivolous claim. You may say that the individual may be cranky. He may be disagreeing with the trade union on the one hand and with the railway company on the other. Mind you, even though he is, he should get a fair hearing. He should have an opportunity of having his case put. If one or two cases are put and fail, that is a great deterrent in itself. I do not think there are any grounds for the Minister's fear that a whole flood of cases will be brought before the arbitrator. I do not think it will work like that at all. It may be that one or two cranks— they may be cranks from the Minister's point of view—will bring cases before the arbitrator and be thrown out. But what harm?
If the individual is in the position of having everything to gain and nothing to lose?
On the contrary, the individual has everything to lose. He is going to have to pay his own costs and the company's costs.
While I do not entirely admire the old-time, rugged individualism of Senator Hayes, I do not approve of the steamrolling of the individual, but I have the feeling that no matter what you do put in the Bill—there are so many things in the Bill that I dislike now, it does not very much matter— you will not enable the ordinary individual to go into court if he has not some backing from some of the combinations. There is no doubt about that. I would point out that this section does not provide that security for costs must be given. It is provided that the arbitrator may, amongst other things, require security for costs, but I draw a distinction between those two things.
The Minister has stated, with perfect accuracy, fairness and courtesy one side of the question, and I admit at once the cogency of his remarks, but I do not think he has given sufficient attention to the other side of the question. Quite recently, if I may illustrate my argument by an example, a certain gentleman failed to get any support for his case from his official union. I may say, too, that he failed to convince certain members of the Bar that he had any case. He persisted, and, with the aid of other members of the Bar, finally got a decision from the Supreme Court which was worth over £2,000 to him. It is quite possible that an individual may not get assistance from his trade union because they do not think his case is one which is either legally correct or in all respects worthy of support. It is possible for even trade unions to have a somewhat constricted outlook, either from the legal point of view or the point of view of policy. I am interested in preserving the right of the individual. It has been suggested that he cannot bring his case without backing. I do not think that is so. Every day cases are taken up by members of the Bar for people who have no means, because the members of the Bar are convinced that the case is one which is either so just that it ought to succeed, or, at all events, is so just and has such a chance of succeeding that it should be fought in the interests of ordinary fairness.
I join with Senator Hayes in making this plea for the individual who thinks he has got a case, and who can convince some lawyer that anyhow the case is a statable one as opposed to a big railway company on the one side, acting perfectly fairly and perfectly honestly within its own lights, and a big trade union on the other side, acting equally fairly and equally honestly. They may both be mistaken and the individual may be right, and it is unjust to say that, because of his poverty, he cannot have his case heard, owing to the fact that he has to give security for costs. Could we not take a line on this from the courts? As has been pointed out by Senator Sweetman, the courts will never make an individual give security for costs because he has no money, nor will they make him give security for costs because his case looks on the face of it unsustainable. It is true that there is a method of bringing a motion to have an action struck out on the grounds that it is an abuse of the process of the court, and frivolous. I have only known that to be done twice during the time that I have been at the Bar. That shows that it is not a matter of very great importance that there should be such a procedure. The fact remains that the court, either for poverty or the apparent unsustainability of the case, has to give grounds for making a person give costs. I suggest that in these matters the courts have been going for a long time. We have a large number of capable judges and wise men who have considered this procedure. They have set a headline which, I think, it is not desirable to depart from.
I suggest that is overstating the case. It is not proposed here that the applicant should be required to give security for costs. What is proposed is that the arbitrator can so require that if he considers that it is in the interests of justice.
I think Senators have not adverted sufficiently to the importance of the word "may" in the section. It is not inherent in the section that the arbitrator will have to insist on security for costs. It is at his discretion. He may demand security for costs, but I think, in view of the statement of the Minister and the freedom allowed to the arbitrator, that the House would be well advised to leave this matter as it is.
Surely, the arbitration will not cover a big number of cases at this particular stage?
That is so.
The difficulty mentioned of arbitrators taking different views will probably not arise. The likelihood is that there will be only one arbitrator, and he will act for a comparatively short time. The possibility of any harm being done by accepting the amendment now is very much smaller than it was in 1926. Suppose an individual cannot get a trade union to support him and suppose he gets senior counsel to say that he has no case, he may find himself required to give security for costs. Not only does he require the advice of senior counsel who may be a specially skilled person like Senator Ryan who, for some years, was an arbitrator himself, to prosecute his case before the arbitrator, but he will further require that someone should go security for him in the bank. All our experience shows that is a very difficult thing to get. He should not be put in the position of having to get the first thing which gives him the probability of succeeding as well as the second thing which we all know is very difficult to get.
It is reasonable to assume that the arbitrator will act reasonably and will not require security for costs unless there is a good reason for it. I should say that, in my opinion, it is almost improbable that any case will come before this arbitrator at all. The circumstances are so different from what they were under the 1926 Act that it is extremely unlikely there will be a dispute except in a very limited number of cases. The position will be that certain people will obviously be redundant as a result of this amalgamation, and they will be compensated. It is only the cases of persons who are subsequently disemployed, and who think that their disemployment was due to amalgamation, and not due to some other cause, that may lead to disputes. It is desirable, in the general interest, that there should not be frivolous cases kept on over a long number of years, particularly in relation to this Bill which provides for the amalgamation of two self-contained units where any redundancy will appear almost at once. Under the Bill as it was framed originally the provision was that these cases would have to be decided within six months. There was opposition to that. That was put in because whatever reorganisation, producing redundancy, would become necessary following the amalgamation would have to be completed within that period. There is no time limit now. The machinery in the Bill as originally framed gave an indication of what I thought the situation would be.
Amendment put and negatived.
I move amendment No. 36:—
In sub-section (8), page 21, line 11, before the word "which" to insert the words "or in the power or control of any party of which he is an employee or servant".
This is a difficult amendment for a layman to explain. During the progress of the Bill through the Dáil the Minister re-wrote the section more or less. Sub-section (8) is drafted in a new form. Paragraph (c) provides that the arbitrator may summon witnesses and require them to produce any documents in their power or control which he considers necessary. It has been suggested to me that there is still a weakness in the section. Let us assume the case of an applicant coming before the arbitrator. The man has been dismissed by the company because his office was discontinued. There is the question to decide whether the office was discontinued because of amalgamation. There may be a number of things involved in that. I cannot say what would be the technical aspects, but I believe there are a number of things involved regarding accounts and other matters which have to be taken into consideration, particularly under paragraph (d) of sub-section (1), by the arbitrator. The position may be that it is not possible for the applicant, or even for his union, to go to court with all the facts: that actually the information has to be derived from the company's own records. There would be no difficulty, perhaps, if one were proceeding against an individual. He could be subpoenaed and asked to produce documents. I think he could be compelled to answer questions. I believe there was a case in the Irish courts some years ago in which the plaintiff succeeded in proving his case only because the defendant happened to be in court. The plaintiff took the precaution of calling the defendant and of putting him in the box to prove his case. That, I understand, cannot happen in the case of a body corporate.
Let us assume that Córas Iompair Éireann has been defending an application before the arbitrator. A clerk, or some other official in charge of the records, appears to give evidence, but he may not have the documents under his control. It is desirable that there should be some process by which the applicant could get the information for which he is looking.
Can he not summon as a witness the person who has custody of the documents?
He may not know who has custody of them.
There are two difficulties. He may not know who has the records and, secondly, the person summoned will be his witness and may not be a friendly witness.
He can require any witness summoned to produce any document in his control. In the last resort, he can summon the secretary, the manager or the chairman of the company. I do not think that there is any need for this amendment.
I do not think that any difficulty will arise in this connection. He can require the secretary to attend and produce the necessary documents. The secretary, being a busy man, will, probably, ask if he may produce the documents through the person who has immediate charge of them. Everybody will agree to that.
I am in a personal difficulty because I thought that, under the ordinary law, you could always put interrogatories to the other party, but I understand that there was actually some difficulty in obtaining compensation because of the non-production of documents or the non-supply of information.
I do not think that that is so. There is full power to summon any person as a witness——
But he is your witness.
If the arbitrator considers that certain information is necessary to his decision or that certain documents are necessary, he can summon the person concerned and require him to produce the documents.
I think that the section, as it now stands, is a great improvement on the previous draft.
To show my ignorance, I wish to put a question and to get a free legal opinion here. Does not the doctrine of the discovery of documents apply to proceedings before an arbitrator?
Generally speaking, the proceedings before an arbitrator are governed by the Common Law Procedure Act, which deals with a great many things. Whether discovery would apply in this case, I am not quite certain.
I move amendment No. 37:—
In sub-section (8), paragraph (d), after the word "time" in line 13, page 21, to insert the words "on notice to any person affected".
I think the Minister will agree that the arbitrator would, virtually, always do what is required here. However, I think that it is desirable he should be required to give notice to anybody affected if there has been a clerical mistake.
The view of my advisers is that the amendment is unnecessary. Again, we have followed the wording of the earlier Acts and no difficulty has arisen on this score. I have no objection to the insertion of the words, but they are not regarded as necessary.
On the section. Like Senator Sir John Keane, in my profound ignorance, I should like to know what the practice is in regard to the enactment of the Schedules. I notice that the Bill seems to enact the Fourth Schedule and the Sixth Schedule. The Fifth Schedule comes in on this section and there is no reference to that Schedule, except in sub-section (1), where the words occur
"he shall be paid by the company compensation calculated in the manner set out in the Fifth Schedule to this Act".
I do not know whether it is necessary to make the Fifth Schedule part of the Act by specific words.
It will be part of the Act. It will be put separately to the House from the Chair.
I notice that in Section 41 it is stated that
"the provisions set out in the Fourth Schedule to this Act shall apply in respect of the stockholders' directors".
In section 57 it is provided that
"the enactment specified in the Sixth Schedule to this Act shall, to the extent mentioned in the third column of that Schedule, not apply to the company".
That seems to incorporate the Schedule. I do not know whether or not it is necessary to incorporate the Fifth Schedule in the same way.
This is the standard form.
This section deals with the superannuation scheme. The company may prepare a scheme and, if the Minister so requests, shall prepare a scheme. I think the procedure is that, when a scheme is submitted to the Minister, if he approves, he confirms it and it becomes a statutory obligation. If he dislikes it, he can send it back and require the company to make alterations until he is satisfied. In regard to the existing scheme, two bodies have made representations to me. One is a society of railway employees. They have had a pension scheme in existence over a number of years. I think that the fund is known by the secretary's name, although it has a legal name. It has been made clear, I understand, to the members of that society that they must wind up their business and I think that some proceedings are pending in the court regarding the matter. I am not very much concerned with that scheme but I have received communications from other sources. One is from members of the National Foresters' Organisation who are railway employees. My attention was drawn to the sick benefit fund in the Great Southern Railways scheme. The last paragraph of that scheme states:—
"Should an employee be a member of any society or body, excluding the National Health Insurance Society, as a result of which membership he receives benefit while ill, he shall be debarred automatically from this scheme."
So that, if a person is a member of the Foresters and entitled to 5/- or 6/- per week benefit, he is debarred from participating in this scheme which, I take it, will be submitted to the Minister under Section 44.
The scheme promoted by the company is a contributory scheme. It may not be contributory in respect of all the services provided, but they are not dissevered. There is one application form. A person who desires to join the fund will sign an application form for membership. That membership confers on him certain benefits for which he is paying, but he is obliged to pay contributions in respect of the other benefits under the scheme. It seems to me a monstrous thing that the Great Southern Railways Company would prepare a scheme the contributions under which are compulsory and say to a member: "You are a member of the National Foresters or some other friendly society and you will be debarred from benefit under this scheme." I do not suggest that anything can be done in regard to that in the Bill, but I suggest that the Minister should take note that this type of complaint exists and that he should ensure, before the scheme is approved, that the persons concerned will know its implications and that he himself will be satisfied that no injustice will be done.
So far as existing superannuation funds are concerned, they are covered by Section 45. Section 45 provides that every existing superannuation fund of the dissolved company shall continue as if the dissolved company had not been dissolved and that the obligations, whether legal or arising out of customary practice, of a dissolved company in respect of any existing superannuation fund shall be binding upon the new company. With regard to the scheme from which the Senator has been quoting, I want to make it clear that the only part of that scheme that has to be submitted for approval is the superannuation part. This Bill deals with superannuation schemes only. In so far as the company may have other proposals for medical benefits or sickness benefits, they do not arise in this Bill. This Bill is concerned only with superannuation and, consequently, it is only the portions of that scheme that deal with superannuation that would require to be submitted for approval under Section 45.
I want to draw attention to a matter which seems to me to suggest very loose drafting in this Bill. For instance, in Section 46 provision is made for the establishment and support of associations calculated to promote the welfare of the employees. You give power to the company to expend money on services of that kind. Then you go on to deal with appointment to clerical grades and when one comes to Section 59 one finds power given to the company to subscribe to charities. It seems to me that the Bill was drafted in a loose manner, more or less slung together, and I think references made here would suggest that the phrasing is not the happiest phrasing. For instance, in Section 46, the phrasing is:
"The company may make payments towards insurance for the benefit of all or any of its employees or ex-employees or the dependents or connections of all or any of such employees or ex-employees."
I do not know whether there is a legal definition of "connections" or not, but it would seem to me to be a new phrase and there is a good deal of such phrasing through the Bill. As originally drafted, there was more of it, but a number of changes were made by way of amendment in the Dáil. I am drawing attention to it for two reasons. The first is as to the meaning "of dependents or connections." I do not know whether that has any significance or not. Secondly, as to why it is that there should be three or four pages between Sections 46 and 59, both of which deal with matters which are related.
The proposal here is to enable the company to contribute to the insurance of its employees to secure, benefits on death to their relatives or other persons who may have an insurable interest or who would be the beneficiaries under an insurance policy. I do not quite fully appreciate what the Senator's difficulty is. I presume the term "dependents or connections" is the phrase ordinarily used in that regard—whoever would be the beneficiary under an insurance policy.
If it meant beneficiary it would say so. Everybody has not an insurable interest in another person's life.
What we are concerned with here is the powers we are giving the company.
I agree. What powers are we giving them to contribute to connections of somebody?
We are giving power to the company to contribute towards the cost of insurance policies for their employees or ex-employees.
For the employees or the ex-employees of the company or their dependents or connections.
Clearly, if it is a life insurance policy, the benefit will be derived by some dependent or connection. The benefit will be payable only on decease.
Would that include ex-employees of either dissolved company?
Yes. It would not include persons who are now ex-employees of one of the dissolved companies. It would include persons who were transferred to the service of this company on amalgamation and at some subsequent date became ex-employees.
Could that possibly exclude a person employed by the Great Southern Railways who is not going to be an employee of Córas Iompair Éireann, from being a member of one of the clubs that are going to be assisted?
Do not mix up the question of the clubs with this, because I think they are separate matters. The section relating to clubs is to enable the company to subscribe to sports clubs, dramatic societies and things of that kind, which the employees might organise for their own social welfare. If we had not got such a section the company could not use its funds to contribute to these purposes. I do not say that the company is going to contribute but we do not want to prevent them if they want to do it. It may also use funds to contribute towards the cost of insurance for its employees, apart from the scheme arranged for medical and sickness benefits and other things besides superannuation. We just enable the company to use its funds for that purpose.
I think the Minister might inquire as to the meaning of "connections" in relation to this section. I cannot imagine a draftsman putting that in without some meaning.
A wife could be a connection but not a dependent. I think there is an obvious distinction.
I agree, but what is a connection? Who are the connections of ex-railway employees?
Relatives who are not dependents.
It does not say so.
It means more than relatives.
I would say so, but I am only giving an illustration.
I imagine a connection would be somebody who would be connected by marriage.
People-in-law.
I think the word "relatives" might be a better word than "connections".
As a matter of fact, I have some experience of a Post Office Benevolent Fund. I happen to be chairman of the trustees of the Roland Hill Fund. We interpret it more widely than relatives and, as a matter of fact, we would like the word "connections". I am speaking from the point of view of the employees and ex-employees themselves. The word "connections" is a wider word and, I think, from the point of view of the employees, the wider the word the better.
Yes.
Give the company the widest possible power, because you may trust the company not to spend its money in any lavish manner. But the company should not be prevented from having wide power to help any particular kind of club or charity. I think the word "connection", therefore, is looser and wider and would be more widely construed. It would be for the benefit of the employees and possibly was put in for that reason.
I move amendment No. 38:—
In sub-section (3), lines 38-39, to delete the words "ordinarily resident in Ireland" and insert in lieu thereof the words "citizens of Éire".
In this amendment I was trying to provide for the case of somebody who had gone to England during this emergency and who is anxious to return to this country and take up a job in Córas Iompair Éireann. As the Minister's section is, he will not be entitled to do it.
I do not think that is correct. I think a person who had gone temporarily to England would be regarded as being ordinarily resident in Ireland.
Ordinarily domiciled but not ordinarily resident. If the Minister had "ordinarily domiciled", certainly it would do. I will take another case which I think the Minister would probably like to meet. Supposing a man had gone to England with his children, who were aged about ten years, and supposing one of the boys when he reached 17 or 18 years of age wanted to come back to this country, he certainly could not be regarded as ordinarily resident here. He would be a citizen. I think the Minister would say that in that case the boy should be able to compete for these examinations.
If the Senator will leave that matter over, I will have it examined.
I should like to ask for certain information with regard to this section. Sub-section (1) provides that all appointments to any office or situation in the clerical grades of the service of the company shall be made by means of open competitive examination. I should like to know why the clerical grades have been singled out for examination. This is a matter of more than ordinary importance. Section 2 provides that Irish would be a compulsory subject at every open examination but what is likely to happen under this is that recruitment to the various grades in the service of Córas Iompair Éireann may be made without reference to a knowledge of the Irish language at all. The clerical officers of the railway companies have very little to do with what one might call the public life of the companies and I think it is absolutely essential that a knowledge of Irish should be required for servants of the company, especially those who have dealings with the public.
If I want to travel by bus, for instance, while, under the Constitution I am assured of the right to use the Irish language, in practice I find that I cannot do it. If I go to the railways to make inquiries in regard to timetables or other such matters I find I am held up if I use Irish. If I want to make out a consignment note in Irish I find I am held up in the same way. The people I deal with generally in these matters are foremen, porters, carriers and bus conductors. I do not quite understand why some regulation has not been made to ensure that the people in these grades coming into the service would have a knowledge of Irish.
We have great difficulties, especially in Galway where there is such an influx of Irish speakers all through the summer. The position is most embarrassing and most unfair to them. I think if the Minister had any idea of the difficulty experienced by native Irish speakers very often in banks and other public institutions in Galway in trying to transact their business in Irish, he would appreciate the force of what I am saying in regard to this section. In regard to the question of recruitment for what one might call the lower grades we expect that the language should be provided for. Whether such a thing should be incorporated in the Bill, I cannot say, but I feel that Córas Iompair Éireann should have the right to insist that recruitment through the lower services should be from the schools only. I do not specify what schools the boys should come from, but I think that when the company are taking in apprentices or young people for platform work or such duties they should only take them from a panel provided by the schools.
I think some consideration ought to be given when the question of openings in the clerical grades come up, to the fixing of examinations in such a way that university graduates would be enabled to compete. What I have in mind is that there is a possibility that examinations may be fixed in regard to a certain standard—say Leaving Certificate—and a very brilliant university graduate may not be able to take the Leaving Certificate examination when, for four or five years in the university, he is working on specialised lines.
The age limit excludes him.
Yes, the age limit will have to be taken into consideration. I am not sure whether these things ought to be incorporated in the Bill, but it should go out as an expression from this House that they are matters of importance which should be seriously looked into by the management of the company.
I am interested in this matter from rather a different point of view from that of Senator O Buachalla. I personally think that these provisions for compulsory Irish— the teaching through the medium of Irish—are creating a disastrous effect on our standards of intelligence and on our general standards of education. But it is the policy of the Government and if it is then it should be applied fairly and without discrimination. I think if we are to have our intellectual standards lowered we should all be made suffer in the process.
Some of us have suffered out of the process—that is the trouble.
I will make my case my own way. Why are the clerical grades singled out in this matter of penalty and preference? Preference is given to people who are native speakers, or have the desire to learn and further the Irish language, as against those who are not. They will have the penalty and why are they singled out for that treatment? I take it that there are grades in the railway and the Minister could tell us how many executive grades there are. If executive grades are recruited from the young people leaving secondary schools, are they recruited by public examination, and, if they are, why should they all not equally go through this process, which I say is either penalising or preferential, as the case may be? Why are the ordinary operative grades exempt from the same treatment in relation to the Irish language? If you are going to apply this compulsory Irish, which is a preference to some and a penalty to others, the application should be indiscriminate. Apply it to all who are more or less of the same age and could be expected to have the same qualifications. I do not say that in regard to a general manager or an elderly man like that, you should apply that system of qualification, but for all of the same age, you should insist on a knowledge of Irish, or compulsory Irish, as the case may be.
Claíonn an Seanadóir O Catháin le saol atá imithe ar fad, agus ní saol ar fónamh a bhí ann ach saol aineolach. Ní thuigeann sé an chaoi ina bhfuil an teanga Ghaeilge ag snaimeadh na ndaoine le chéile, ó thuaidh agus ó dheas. Ní hé amháin go bhfuil an Rialtas ar thaoibh na Gaeilge ach go bhfuil gach uile dhream poilitíochta sa tír ar thaoibh na Gaeilge, agus luigheann sé le réasún go mba cheart agus cóir toil na ndaoine do chur in éifeacht. Ní hiarracht é sin cúl nó éagóir do chur ar aon duine. Tá deis ag na Béarlóirí thar na Gaeilgoirí, mar tá siad comhgarach do na coláistí agus na scoltacha is fearr sa tír. Bhí éagcóir á dhéanamh ar na Gaeilgoirí le fada agus is cóir agus is ceart cothrom a thabhairt dóibh ins an saol atá le teacht.
I do not intend to take up the time of the House by following Senator Sir John Keane through the questions he has raised. I am sure, however, that he would be interested in an examination as to the effect of teaching in Irish. I might suggest that he refer to the results of the last examination conducted by the Great Southern Railways in regard to the efficiency of teaching in Irish as against teaching in English and as to the results achieved by the students doing their work in both languages.
I am not going to follow the Senator on that point but I could give him some astounding examples of the effect of this teaching through Irish. I do not want to bring that in now.
I just want to intervene to say that the matters raised by Senator O Buachalla are matters of management and representations which he thinks should be made, must, I think, be addressed to the management of the new company. I feel sure that the management will give very careful consideration to these representations. I would, in fact, have said that even the matters dealt with in Section 47 should be left to the discretion of the management, were it not for the fact that in previous legislation relating to the Great Southern Railways there were somewhat similar provisions—provisions for competitive examinations for clerical grades and particularly a provision which required the reservation of certain of the posts for the sons and daughters of existing employees of the company.
I would have preferred to leave Section 47 out altogether and to leave even the method of recruiting the clerical grades to the management of the company, just as the recruitment of the manual and executive grades is left to their discretion, but because there had been legislation previously in this matter, because certain rights had been secured by legislation and the dropping of the section at this stage might lead to misunderstanding, I felt it was wiser to insert the section confirming the existing position. The company recruits its executive grades mainly by promotion from the clerical grades, but occasionally by bringing in people from the service of other firms. Senators may have seen recently an announcement in the Press of the intention of the management to form a cadet corps, the members of which will be given special training with a view to their ultimate appointment to executive posts, if they prove suitable. So far as manual workers are concerned, I think competitive examination would be an unsuitable method of selecting them, but if it is desired to suggest that, in particular parts of the country or generally, they should have special qualifications in Irish, I feel sure the company will consider any representations made to them in that connection.
I feel that the Minister's answer is profoundly unsatisfactory. Whenever it suits his case, he says: "This is a question of management; we cannot interfere," and then we suddenly find that, for some reason I cannot follow, he places this obligation on the management of insisting on Irish for one grade only, the management being free to do what they like about the other grades. He imposes the obligation in regard to Irish on one grade only. I think it is profoundly unjust and for that reason I propose to put down an amendment on Report Stage to leave this question of Irish to the management. It is very unfair to apply this obligation to one grade only. With regard to what Senator O Buachalla has said, I travel on the railways—not so much as he does, perhaps—and I never find that I am hampered by not knowing Irish.
I am inclined to agree with the Minister on this matter generally. The point which Senator O Buachalla makes that university people might be recruited to the railways is one which we could scarcely provide for by legislation. There is, as the Minister says, a proposal to set up a cadet system and it may very well be that the only way in which university people, apart from engineers, could come in is by having in the railway a grade equivalent to the administrative grade in the Civil Service; but, quite clearly, the Minister is right in saying that we could not provide for that by legislation.
I agree.
We are in agreement about that. I think we should leave the railway as much liberty as possible. Open competitive examination might not necessarily be a written examination. Engineers might be recruited by way of selection boards as in the case of Government service, which would almost be, of its own kind, an open competitive examination.
With regard to Irish for the clerical grades and not for other grades, I am rather inclined—I hope he will not be surpri ed—to agree with Senator Sir John Keane that we should have, for people of the same type and the same age, the same obligations, but I think he will find, if he examines it, that the only rule we can make is the one which the Minister makes here and the one made in previous Acts, that people of an age for clerical work recruited fresh from school should be subjected to this test, which, in their case, is in no sense an unjust test.
Why not for executive work, too?
These are the people who will be doing executive work. The people recruited by clerical examination are the people who will be doing it.
I do not think they are entirely drawn from the clerical grades.
But by this new proposal which is not yet actually settled. Is that not the position?
That is so. In the past, the executive grades were recruited mainly by promotion from the clerical grade, but on occasion people with special qualifications were brought in from the Railway Clearing House, independent road transport companies and so forth, and that may arise in the future. This new proposal to train a special cadre of people in executive work is not yet in operation. The clerical grades include stationmasters and ticket clerks and people of the kind, and it would be correct to say that, apart from porters and station hands, they are the class of railway employees who come most frequently and directly in contact with the public.
If it is suggested that the executive grades should be recruited not from the existing railway employees but from the outside and at a particular age, like the school-leaving age, then presumably provision of this character will be made with regard to Irish. Speaking for myself, I would hope that it would be made, but I do realise that the company should be left to do its own business as best it can itself. Senator Sir John Keane rather misunderstands Senator O Buachalla's point. It is not that Senator Sir John Keane's lack of Irish hampers him on the railways, but the lack of knowledge of English of certain people hampers them on the railways.
I am quite prepared to accept that correction.
With regard to the general proposition that our intellectual capacity is failing because we are interested in Irish, that is very difficult to prove, and it is quite clear that the intellectual capacity of the country does not reside in the people who do not know Irish and have no interest in it.
Amendment No. 39 in the name of Senator Douglas to this section reads:—
In sub-section (1), line 56, page 23, after the word "may" to insert the words "after consultation with the board."
The Minister has power to direct the company to do certain things. I take it that he could scarcely do that without consulting the board.
That is the position.
So there is no need to move the amendment.
I move amendment No. 40:—
In sub-section (3), page 24, line 5, to delete the word "may" and substitute the word "shall".
As Senator Hayes has indicated, the Minister may, under this section, require the company to provide transport facilities where they are needed. Before making an Order under the section, it is provided in sub-section (3) that he may refer the proposed Order to the advisory committee, and the purpose of the amendment is to ensure that the Minister shall refer it to the advisory committee. The matter is one of considerable importance, as the Minister's Order may affect very many interests, and it seems right and proper that it should be the subject of examination by a committee outside his Department. This is one of a number of amendments which endeavour to insert the mandatory instead of the permissive word.
Why should we have all the apparatus of a public inquiry to do something which is of a comparatively unimportant character and which everybody agrees should be done? There may be, of course, many completely frivolous applications. I can imagine an individual applying to have a bus service every hour to his own door in some cul-de-sac. If we accepted the amendment, that application must go to the advisory committee, there must be a public inquiry into it and a report from the advisory committee.
Is it not the Order, not the application?
Before making the Order. There will be other cases where the application will appear on the face of it to be reasonable and where the case made by the applicant is such that no further inquiry appears to be necessary, in which case the Minister may proceed upon his own initiative to make an Order and get the service provided. It is only where there will be a conflict of interests, where some inquiry must be held, where the views of the different parties must be weighed and judgment formed upon them that the committee procedure will be necessary. In such a case I assume it will be the normal practice to refer this question to the committee. If there is no need for that elaborate inquiry, then there should be no compulsion upon the Minister to arrange for it.
I should like to know if the Minister has in view particularly in regard to this section areas in which the train service was discontinued, because we have had the experience in the West, where the line from Clifden to Galway was discontinued, that the farmers in the Clifden area complain very bitterly that they cannot send cattle to the market in Galway because the rates are so high. I was wondering if the Minister would consider the advisability of putting into this section after the word "conditions""at such rates as he shall prescribe for the carriage of animals and goods". This is a very serious matter. I do not know whether the Minister would prefer to deal with it in Part 4, dealing with the question of charges.
There will be maximum rates which will apply to the whole system.
I am afraid that will not be sufficient for a particular service. I think that for a particular service there ought to be particular charges—that is for particular areas.
It will be in the company's power to charge less than the maximum in any case, but I do not want the Minister to be put in the position that he can by Order require the company to charge less for the conveyance of cattle in Galway than in Mayo. Everybody would appreciate the difficulty of the Minister if he had that power. In the case of Galway, what happened was that an exceptionally low rate which had operated for a time was dropped and the standard rate, which farmers in every other part of Ireland had previously been given, came into operation.
I do not know if the Minister appreciates that the farmers suffered very considerably by the discontinuance of the line from Galway to Clifden. They have now to pay several times more per head of the cattle than they formerly paid. That is a grave injustice to them. In fact, we are told that some farmers in the Clifden area have cattle on their hands up to four years old because they could not send them to Galway to be sold.
Leas-Chathaoirleach
Will the Senator leave that aspect over until Part 4 of the Bill is being considered?
I am satisfied if it is dealt with on Part 4.
Here we are concerned only with the actual facilities which will be provided.
I should like the Minister to prescribe special charges for special areas. I am satisfied to leave it over until Part 4 is taken.
I move amendment No. 41:—
In sub-section (4), page 25, to delete all words after the word "case" in line 24 to the end of the sub-section.
In this section provision is being made for the cesser of wayleaves payable to the Dublin and Dun Laoghaire Corporations. Provision is made for the settlement of any dispute which may arise between Córas Iompair Éireann and the two corporations concerned. A direction is given, however, in sub-section (4), the latter part of which is not very clear to me. The sub-section commences by saying:
"In fixing the compensation payable to any road authority under this section the arbitrator shall have regard to all the circumstances of the case ..."
That is a very reasonable and understandable direction. Then it goes on to say:
"... and may have regard, so far as he considers equitable, to the extent to which the roadways of that road authority have ceased to be used or will cease to be used for the purpose of tramways".
I cannot see any point in putting in these words. If the arbitrator is to have regard to all the circumstances of the case, that seems clear enough. What I am endeavouring to do in the amendment is to take out these latter words which certainly will add to the difficulty of interpretation and be very much less satisfactory for the arbitrator and for the parties appearing before him. I do not think that the deletion of the words would in any way take away from what was intended originally. It would remove the ambiguity, and that is desirable.
I do not think the arbitrator could have regard to the circumstances of the case unless these words were put in. The position concerning these wayleaves is that they were paid under an agreement between the Dublin United Tramways Company and the Dublin Corporation as something equivalent to rent for the use of the streets. There was no legal recognition of that, however, until 1925, when the Dublin United Tramways Company promoted a Private Bill for the purpose of getting power to run omnibuses. The position at that time was that omnibuses were coming on the streets operated by private individuals and companies, but the Dublin United Tramways Company had no power to run omnibuses and could not get the power except by way of a Private Bill. For reasons which are not quite clear at this stage, the Private Bill of the Dublin United Tramways Company was opposed by the Dublin Corporation and, in the course of the negotiations which took place between the company and the corporation directed towards securing the withdrawal of that opposition, there was an agreement to insert in the Bill a provision which would require the Dublin United Tramways Company to continue to pay to the Dublin Corporation indefinitely wayleaves at the amount at which they were paid in 1925. Previously that amount fluctuated with the mileage of tracks. No doubt the corporation had in mind the possibility that omnibuses would replace trams to an extent which would interfere with their revenue from wayleaves and, as we know, that has in fact happened since.
The company was also obliged to meet costs in respect of the maintenance of the roadway in the vicinity of the tram tracks and, subsequent to the enactment of the 1925 Act, there was a new agreement between the company and the corporation by which the company's contribution towards road maintenance was reduced as the track lines were reduced. That was a much larger item than wayleaves. In consequence of this provision in the 1925 Act, the company continues to pay wayleaves at the 1925 level and would presumably have to continue to pay them indefinitely, even if the tramways had disappeared, unless there was some relief given by way of legislation. That the Oireachtas in 1925 contemplated that such relief might be given, was clear from the phraseology put by the Private Bill Committee into the Bill following the agreement between the company and the corporation, because the Bill contains wording which must have been decided upon for some unusual reason. It provided that, notwithstanding the discontinuance or the abandonment in whole or in part of the tramlines operated by the company, the company should, nevertheless, continue to pay these wayleaves at the respective amounts being paid in 1925, unless and until provision to the contrary was made by the Oireachtas.
If we were merely to determine what capital sum would represent a perpetual payment of that kind, we would not need an arbitrator; any mathematician would probably be able to give you the figure. But there are certain considerations of equity which arise. It is clear it would be unfair to impose on the national transport organisation an obligation to pay a perpetual pension amounting to several thousands of pounds per year to certain local authorities merely because at one time in history these local authorities had leased their streets to a tramways company. We do not say to the arbitrator: "You must determine the compensation to be paid in the light of the fact that the tramways have, since the 1925 Act became operative, substantially disappeared, and may completely disappear in the future." We say to him that to the extent to which he regards it as fair to do so, he may have regard to this consideration—the extent to which the roadways will cease to be used for the purposes of tramways. If the arbitrator considers it fair to take that point into account, we give him permission to do so. It is by no means clear that he could otherwise take it into account, having regard to the provisions of the 1925 Act.
My point is that the words mentioned in the sub-section will make the position more complicated. In preparing the Bill, the Minister was able to arrange for a settlement of whatever claims were outstanding to the Great Northern Railway Company; that is provided for to the complete satisfaction of any claims made. I do not know whether any effort was made to do the same in the case of the two corporations. But it is not going to make matters easy for the arbitrator, unless, of course, the Minister's wording has particular significance. If that is so, it means that the company that was paying rent had been paying for a particular purpose. They are no longer availing of the facilities they enjoyed, and therefore they cease paying. In that case there is no compensation.
That would have been the situation if that provision had not been inserted in the 1925 Act. If the Dublin Tramways Company had succeeded in getting, in the Act passed in 1925, power to run omnibuses without this condition in relation to wayleaves, the obligation to pay would disappear as the tramways disappeared. But, because of the opposition offered by the Dublin Corporation to that Act, an agreement was made which required the company to continue to pay wayleaves at the rate paid in 1925, unless and until the Oireachtas made provision to the contrary. The Oireachtas has not made provision to the contrary.
But the Oireachtas is being asked to provide to the contrary.
No. Now, the company will get rid of this obligation to pay wayleaves at the 1925 level on payment of a capital sum to the local authorities. If they cannot get agreement as to the capital sum, then the matter must be referred to an arbitrator and the arbitrator will decide what capital sum will represent fair compensation to the local authorities, having regard to all the circumstances of the case —having taken into account, if he thinks it fair to do so, the extent to which the roadways may cease to be used for the purposes of tramways. In so far as it might be held that he could not take that matter into account, it is desirable to put that provision in. We do not say to him "You must take it into account," but we do say "If you consider it fair to do so, you may take it into account."
When is this section likely to be operative? Will it become operative immediately the new company is formed?
I should say the new company will endeavour to secure agreement with the corporation and the Dun Laoghaire Borough Council for the payment of the capital sum.
I am rather surprised the Minister recognises this question of compensation at all for these wayleaves. Look back on the past. You took hold of the Dublin electricity outfit completely without any compensation at all and you merged it in the national effort and deprived the corporation of the very considerable revenues they might have expected. In this undertaking you are relieving the Dublin citizens of an encumbrance in the form of trams and you are paying compensation. I cannot see that compensation is justified in view of the numbers of people who have suffered in the whole of this new transport policy. Look at the way the shareholders in the railways have suffered through the action of the Government. I think the Government would be fully justified in not giving any compensation to the corporation for the cesser of these wayleaves.
After hearing Senator Sir John Keane, I could not remain silent. He draws an analogy between the corporation electricity supply station at the Pigeon House and the Dublin United Transport Company. There was a reasonable hope, if the Dublin United Transport Company had continued as a separate organisation, of reduced fares and greater facilities for the citizens of Dublin. It appears to me that this profit-making value of the Dublin Transport Company will be utilised to relieve unprofitable railway undertakings throughout the country and to that extent the citizens of Dublin will for all time lose the possibility of cheaper fares and better transport facilities. Will it be competent for the arbitrator to take notice of that disadvantage that the Dublin Corporation and the citizens will suffer as a result of this merger? That is an important aspect.
There is another feature. By the withdrawal of this annual sum for wayleaves the whole valuation of the City of Dublin will be altered and the loss of the amount paid in wayleaves will have to be passed on to the rates in Dublin City. Will it be competent for the arbitrator to take due notice of this disadvantage? The Dublin Corporation, of course, will be mulcted because of the merger. Since we are having arbitration on the matter, it is well that we should know, as far as we can, what the arbitrator will have to decide, and I would like the Minister to deal with that aspect of the case.
I heard the arguments put up by Senator Foran now put forward on every occasion when Dublin came into the picture. I remember the discussion of the Electricity Supply Bill and the outcry of those interested in Dublin, saying that the citizens would have to pay higher rates for electricity supply, as the private company in Rathmines would be completely wiped out, and so on. I would remind Senator Foran and some of those others interested in the citizens of Dublin, that there would be no Dublin if we had not a prosperous country.
On a point of order, if the Senator reads what I said on the Second Reading of this Bill, he will see that I said that Dublin was becoming top-heavy, that we would have to take due notice of the country and have to make sacrifices in the interests of the country at large; so that does not bear out what Senator Counihan is attributing to me now. The same thing applied to the Electricity Supply Bill, when I drew attention to that point also.
I am sorry if I misunderstood the Senator, but the fact remains that, during the passage of the Electricity Supply Bill, dealing with the Shannon scheme, the same arguments were used in this House over and over again, about the citizens of Dublin; and Senators emphasised that they would have to pay higher tram fares under the new scheme. In the end, the Shannon scheme has proved a blessing in disguise for the citizens of Dublin, and I am sure the same thing will happen under this Transport Bill. Where would they be during the emergency, when they cannot get any coal, if they had not the Shannon scheme? They should not be making such a row now about the higher fares they may have to pay under the new Transport Bill, as they may have lower fares.
In reply to Senator Foran's point, the Dublin United Transport Company pay to the Dublin Corporation rent, rates and a contribution to road maintenance. In the case of the rates, there was, by agreement with the corporation, a reduction in the rateable value of the undertaking with the disappearance of the tramways. In the case of the road maintenance contribution, which was substantially greater than the wayleaves, there was a similar agreement with the Dublin Corporation for a reduction of the amount as the tramways disappeared. The Dublin Corporation formally recognised that they could not get revenue at the same rate if the tramways disappeared. In the case of the wayleaves, they were frozen by the 1925 Act and have remained unchanged ever since. We are now going to get rid of them by paying a capital sum, but in determining the capital sum — assuming the case goes to arbitration — the arbitrator also can have regard to the considerations which the corporation had regard to when they made the new agreement relating to rates and road maintenance contributions.
Would the Minister say what happens to the money lodged in court as a guarantee when the City of Dublin Junction Railways was liquidated? As well as I remember the position, that railway was guaranteed by the Great Northern Railway, the Great Southern Railways and the City of Dublin Steampacket Company. The last mentioned was liquidated and some £35,000 was lodged in court. Does it go to the new company or is it paid out to the liquidators of the old one?
It goes to the new one.
That is not provided for.
In sub-section (1) (c), there is an obligation on the company to maintain a certain service until an agreement is reached with the Great Northern Railway. It says:—
"(c) the company shall continue to operate the normal system of trains run before the said date for the purposes of, and in connection with, the mails services of the Minister for Posts and Telegraphs, over the Dublin Junction Railways and the company's railway between Westland Row in the City of Dublin and Dun Laoghaire Mail Pier, until the company and the Northern Railway Company, with the consent of the said Minister agree otherwise;"
I do not wish to attach any more importance to this point than the Minister did himself, but I think there is a likelihood that the rail service may be abolished, not next year but in five or seven years, with the disappearance of the suburban services. If that is so, there may be difficulty on account of this paragraph in sub-section (1). For instance, the Great Northern Railway may withhold consent to agreement for the abandonment of the mail service. There seems to be no way out of it except by new legislation.
That may be so. The amount lodged in court by the Dublin Steampacket Company, which was one of the guarantors of the City of Dublin Junction Railways, was £65,000, and an application is being made by the Great Southern Railways to the court for the money.
In the Dáil the Minister said £35,000, as reported at column 41 of Volume 95.
That was a misprint.
In the copy of the Bill I read, there was no mention of hotel licences. I should like to know if the transfer of licences mentioned here would refer to hotel licences.
An intoxicating liquor licence cannot be given to a company, but must be to an officer.
Those licences are not covered in this section.
I move amendment No. 42:—
In sub-section (4) to add at the end of the sub-section the words "but the company shall not by reason of any diversion of traffic from the railway to its road services have the valuation of its railway assets for rating purposes reduced below the figure operative for profits for the dissolved railway company for the year ending the 31st March, 1944".
The phraseology of this amendment is not very happy but the amendment was merely put down to draw the Minister's attention to a particular circumstance that may arise. The Railways (Valuation for Rating) Act, 1931, is not satisfactory in its operation, for a variety of reasons of which the Minister is probably just as well aware as I am. There will be a very severe time-lag in the operation of the fixing of the valuation under that Act, which means that a county council or any other local authority may have gone over into a new financial year before it actually knows the exact amount the company may have to pay under the preceding year.
In practice, of course, the company has been paying the minimum.
The company has been paying the minimum, under the decisions of Judge Davitt and the Supreme Court, in the cases that were taken the first time. My feeling is that, at some stage or other, there may be a suggestion that the minimum should be changed and the point will then come up that Córas Iompair Éireann has transferred from the railways to the roads a great deal of its services. In that event, there would be the local dislocation caused to local authorities by a railway line being closed down, though at the same time they would not get compensatory provision in the rates. It is not a thing that can be dealt with in this Bill, and the amendment is introduced for the purpose of raising the matter, so that it may be considered by the Minister and the Minister for Local Government and Public Health, on the question of the delay that will arise after the next quinquennial valuation. Some other system might be adopted in the future for the greater convenience of local authorities.
The Senator understands that the railway pays rates upon calculations which are based on its net receipts.
Calculated in accordance with a most complicated method.
I agree. Nevertheless, it is a different method of calculation from that which applies to other classes of property which pays on a valuation of the letting value of the property. In this case the net receipts are taken as the basis but there are deductions from the net receipts representing the proportion attributable to movable assets. It is on that calculation the company pays. There is also the minimum provision.
The minimum provision has been in operation for a long time. There will be a revision, however, at the end of the quinquennial period.
The intention is to leave the Act unchanged. If there should be a complete transference of railway traffic to roads, and consequently a situation created in which the revenue earning capacity of the railway part of the system would be completely altered, we would have to consider that under the 1931 Act.
In connection with this section I want to draw the Minister's attention to Section 135 of the 1925 Act. This is one of the typical things we have met throughout the whole Bill which impressed me very much with the point of view that while this Bill has been drafted on the instructions of people who presumably understand the transport situation and understand Parliamentary draftmanship, it has not been considered at any time by a person who understands company law or who is used to the practice of company law. Section 61 and Section 135 deal more or less with the same thing in slightly different words and with slightly different provisions. I think it is grossly unfair that a person who has got to understand all the regulations which Córas Iompair Éireann may make, should have to try to construe these two different sections. Either Section 61 should not have been inserted or Section 135 should have been excepted from the operation of the Bill by the initial section of the Bill. I would direct the Minister's attention to these two sections as an example of the somewhat loose drafting of the Bill from the company law angle, and I would suggest that between now and the Report Stage he should get a draftsman to look at the Bill who is accustomed to company law as apart from one who is accustomed merely to Parliamentary procedure and transport conditions.
This section is merely a re-enactment of a section of the 1924 Act.
Did the 1924 Act incorporate Section 135 of the Company Clauses Act?
I do not know that.
This is a typical instance of what has happened in connection with the Bill. The whole thing has been considered by a person well versed in Parliamentary procedure and transport conditions, but it has not obviously been considered by a person versed in company law.
I move amendment No. 43:—
In sub-section (3), immediately after the words "the Company", in line 34, to insert the words "at any place habitually used in the past for that purpose or".
The difficulty I had in this particular instance was on the question of the definition of "level crossing". I can recollect one particular place, not on the Great Southern Railways, but on the Great Northern Railway, where people used to walk across the line. There was a stile, placed there obviously by the railway company, to enable people to get over the fence on either side, but it was not a level crossing. If there was a similar arrangement on the Great Southern Railways Company, it would be held that a person would be trespassing by going across the line.
As the amendment stands, it would have the effect of legalising what was trespass in the past. The provisions of this section are taken from the Private Acts of the various railway companies which were amalgamated in 1924. In fact, the sole reason for legislating in relation to this matter is that we found on examining these Acts that they contained varying conditions, and the situation since 1924 in relation to trespass has been different upon some parts of the Great Southern Railways Company from what it was on others. It was felt that, as we were dealing with the matter now, we should make one law to, cover all parts of the system. As the matter has been raised, I should like to say that I have been giving consideration to the question of whether it is not desirable to ensure that the right to use accommodation level crossings is fully preserved. It will be understood that when the line was being constructed the company was under an obligation to make good any interruptions caused by the railway in the use of lands through which the line passed. It may be necessary to propose in relation to this sub-section some modification of the wording which will ensure that the right to use level crossings is more effectively preserved than at present. That matter is being examined.
May I ask the Minister the object of paragraph (2) (b)— all this elaboration about the notice not to trespass? Surely everybody knows that he cannot trespass on a railway line, without having all these elaborate provisions about notice. The whole thing seems to me to be an empty formula.
Under this section, where a person is charged with an offence of this kind it will not be necessary for the company to establish that a personal warning was delivered to the offender. It will be regarded as a sufficient warning if the company erects a sign at the level crossing.
There is one point in connection with these notices that I should like to bring to the notice of the Minister. Occasionally one sees notices on railway premises and vehicles—there may be lawful authority for them though I doubt it—saying that if a person does so and so he will be fined 40/-. I understand that these are not in the correct form.
These would be offences against by-laws.
I suggest that they are in the wrong form. I suggest that all they are entitled to say is that a person who contravenes the by-laws is liable to be prosecuted and on conviction may be fined a certain amount. In one particular case I have in mind the notice is a very old one, because the name still on the enamel plate is the Midland Great Western Railway Company, which disappeared in 1924. These notices are in a most improper form.
We cannot be too technical. One sees in railway carriages a warning that the fine for improper use of the chain is £5, but I never tried to pull the chain to see if that would be the fine.
Leas-Chathaoirleach
Amendments Nos. 44, 45 and 46 all deal with the composition of the advisory committee and perhaps could be discussed together, though it may be necessary to put separate questions on them.
Amendments were as follows:—
44. To delete sub-section (2) and substitute therefor the following new sub-section:—
(2) The advisory committee shall consist of five members, namely:—
(a) a chairman who shall be nominated by and may be removed from office by the Taoiseach;
(b) two ordinary members who shall be nominated by and may be removed from office by the Minister, and
(c) two ordinary members who shall be nominated by and may be removed from office by the Minister for Agriculture.—(Senator Duffy.)
45. In sub-section (2), to delete paragraphs (b) and (c) and substitute therefor the following paragraph:—
(b) four ordinary members who shall be nominated by organised interests under regulations to be made by the Minister.—(Senator Sir John Keane.)
46. In sub-section (2), paragraph (b) after the word "who" to insert the words "shall be a member of the National Executive of the Irish Live-stock Trade and".—(Senator Counihan.)
I move amendment No. 44.
As the House is aware, the proposal here is to establish an advisory committee consisting of five members, composed of the chairman and four other members—the chairman to be nominated by the Taoiseach, two of the members to be nominated by the Minister, and two to be nominated by the Minister for Agriculture. I have a feeling that this advisory committee may be a very important body in relation to the operation of this Bill. I feel that it should be given all the authority and influence that we could bestow upon it in the legislation. For that reason, the amendment proposes that the chairman would be nominated by the head of the Government, and that the other four members be nominated, as to two by the Minister, and as to the remaining two by the Minister for Agriculture. The Minister will be directly responsible for very many things that will be done under this Bill. He is taking power to refer a number of matters to the committee before taking action in regard to them, such as, for instance, the fixing of a scale of charges, the classification of merchandise, and other matters that may come before him, and which may be referred to the committee. I have a feeling, however, that if that committee is a body that is more or less apart from the Department of Industry and Commerce it would be a better thing both from the point of view of the Minister and of the public. Other committees have been appointed from time to time to which wide powers were given, much on the lines suggested here, and it appeared to me that the more independent the committee is, the better it will be for the Minister himself and for everybody else.
This committee is more or less analogous to the Rates Advisory Committee, which was set up in 1924, in connection with the Harbours and Piers Act, and the applications in regard to various charges. While that committee was constituted entirely of members appointed by the Minister for Industry and Commerce, at the same time it was representative of various points of view rather than of interests. I do not think anybody was selected because he represented a particular interest, and I think it is a bad thing that it should be so. I think it is a bad thing that sub-section (3) should make it obligatory on the Minister to have reference to anybody's interest. I may say that, actually, a committee with which I was associated considered proposals in relation to the reorganisation of transport towards the end of last year and at the beginning of this year. The Minister got a copy of the findings of that committee. On the question of a board of directors, in which some people favoured a board representing certain interests, on the assumption that it was a State concern, and even after consulting with the representatives of those acting on behalf of railway transport workers, the committee rejected the proposal that interests should be represented on the board.
The same is true of this advisory committee, and if the Minister wants advice on matters arising under this Bill, he ought to select a committee whose members are capable of offering that advice and, if the necessity arises, of conducting an inquiry, because that is what you are doing here. You want a committee that will conduct an inquiry, take evidence, form an opinion and make a report to the Minister. That report, no doubt, will influence the Minister's decision very clearly, and, therefore, I am endeavouring to make this committee detached and to have it clothed with authority and influence.
The proposals I am making in the amendment are reasonable from that point of view. The chairman of the committee would be selected by the head of the Government, and this amendment seeks to give authority and influence to that committee, if you have a committee. The Minister himself would select two members of the committee, and the Minister for Agriculture would select the remaining two, and I think that such a committee would meet what is wanted in the Bill.
My amendment, No. 45, is not intended to be legally water-tight, but to raise a principle. If the principle is accepted, then the Minister can put it into proper form. What I have in mind in connection with the whole of this Bill is that the attitude of the Government in regard to this whole matter is totalitarian. I do not want to enlarge on that subject, but I say that this shows a totalitarian attitude on the part of the Government towards the country. Here we have a case where the Government are taking a monopoly of the railway and giving no voice whatever to the people using the railway, the people who will be most affected by the operations of the transport company. The Minister, in effect, says: "No. My appointees will be docile dummies, whom I shall call in." Surely, the Minister wants to know what the ordinary people, the users of the railway, feel about the matter, and surely he should get somebody to give him some kind of independent judgment on their grievances. When you had the Railway Tribunal they had at least an independent attitude towards the grievances of traders, although I do not mean that that was altogether an independent body. Perhaps they were slow in their operations and in the making of their reports, but at least they did adopt an independent attitude towards such grievances.
Here, however, the Minister steps in and takes a sort of Codling and Short attitude and says, in effect: "Codling is your friend, not Short". In other words, he says: "I am your friend; I have a chairman who will safeguard the interests of your company, and I am not going to have any independent voice made effective regarding any grievances the public may feel." I say that the whole thing is wrong and antidemocratic. I say that the spirit of it is totalitarian. We have a facile democracy, I know; we have a Dáil, an Oireachtas, and a tribunal of courts of law, but still there is this totalitarian spirit, reinforced, I may say, abundantly, by the censorship, and it is against that totalitarian spirit that this amendment is put forward. The object of the amendment is that you should make at least this minor concession to the ordinary man in the street. It is not easy to get access to the Minister. Of course, I do not say that the Minister is inaccessible— perhaps it is one of the advantages of a small country that he is accessible— but the Minister here has complete power. He has the power to say "No" to any proposal. I do not say that the Minister will be tyrannical, but he may say, in regard to any proposal: "The chairman does not like it, or somebody else does not like it, and therefore I refuse to hear any impartial complaint." Not alone that, but the Minister says: "I will put in my own nominee."
I think that the spirit of the thing is all wrong, and not only the spirit, but the letter. All through this Bill we have been up against the letter. It is the spirit I am after. The Government should recognise the plain people of the country, and give them at least some rights in this very important matter of transport. That is the purpose of my amendment. If the Minister is prepared to accept it, there will be no real difficulty in deciding who are the organised interests. I ask the Minister not to say: "We cannot select the organised interests." It can be done if the Minister wants to do it. I only ask at this stage that the principle be accepted; the rest is only a matter of machinery.
Leas-Chathaoirleach
We will now hear Senator Counihan on amendment No. 46.
I move amendment No. 46. I am sorry I was not here when the ruling was given. Will those three amendments be voted on separately?
Leas-Chathaoirleach
Yes, if necessary.
There is an alteration which I wish to make in my amendment. The amendment refers to a member of the national executive of the Irish live-stock trade; what I meant was a member nominated by that body. The national executive varies every year.
With regard to the amendment in my name, I think I can put forward a very much better case for having a member nominated by the national executive of the live-stock trade than can be put forward in the case of any other section of traders. It is true to say that the live-stock trade are the greatest users of the railway, and that apart from passenger traffic they yield the greatest revenue to the railway, but that is not the principle on which I rely when I ask that a member should be nominated by the national executive. As every Senator knows, the cattle trade has had long experience of the workings of the railway. Every other trader simply sends his carter to the railway station; he does not actually see the goods loaded—all he is concerned with is the question of freights. Our main consideration—of course we are as interested in freights as anybody else—is that we want better services. We want to be in a position to put up our claims, and show the Minister how the services can be improved. As I said, we have had long experience of the running of the railways. Every cattle trader goes to the railway station, sees the cattle loaded and unloaded, and knows where the snags are. He has travelled sometimes in the van, with the cattle; he knows where the delays occur, and the causes of the delays. On many occasions we have been consulted by the railway management, and our advice was accepted.
I will give one example to show how our advice was helpful to the railway company in the old days. Tipperary fair was a very big one, and the accommodation at the railway station in Tipperary town was very limited. It is a very small railway yard and the banks are not very extensive. Only a small number of wagons could be accommodated in the yard at the one time. When the cattle were loaded there, no empty wagons could be brought in until the first lot was despatched. For years they were marshalling those wagons in the yard in Tipperary, and we had to wait there the whole day and sometimes into the night. The cattle trade, seeing that something had to be done, put up the suggestion that as soon as every wagon was loaded and booked it should be despatched to Limerick junction for marshalling; the same arrangement to apply in regard to the Waterford section. That suggestion was adopted; it expedited the transport of the cattle, and saved an enormous amount of hardship to the farmers, cattle traders, and everybody concerned. The position had been so bad that a good many of the cattle buyers refused to attend Tipperary fair. Those are some of the reasons why I urge that we are entitled to special consideration, apart altogether from the claims of any other traders.
There is one point which I should like to make with regard to general policy. We have heard a good deal of talk about the dictatorship powers of the chairman, and comparisons have been made with the old Railway Tribunal. We had experience of that tribunal and we were not enamoured of it. If this advisory committee is to be effective, they should have some permanency of office, and not be removable at the whim of any Minister. I do not object to the Minister having power to remove the chairman. We will all have an opportunity of going to the Minister with regard to any work done by the chairman, and that power on the part of the Minister will keep us right as far as the chairman is concerned. We want the advisory committee to have more independence. If they are to be removable at the whim of the Minister, I do not think you will get the best men on the committee. I do not think an independent, self-respecting man would go forward in those circumstances.
Do not forget that he is paid; he gets a salary.
We will remove the salary; I hope the Minister will agree to that. We have had experience of other advisory committees. The Agricultural Advisory Committee, when elected, can work out their term, and it is not within the province of the Minister for Agriculture to say to any of them: "I will retire you. You are creating a bit of a disturbance on this committee, so you need not come any more." Why should the committee which we are discussing here be put in a different position? Why should it be open to the Minister for Industry and Commerce to keep only "yes-men" on that committee? If the committee are to have any independence we should remove from the Bill the clause which gives the Minister power to retire them, and I hope the Minister will agree to bring in an amendment on the Report Stage to meet that point.
Those of us who are interested in agriculture are rather disappointed that there is not some mention of a representative of agriculture on this advisory committee. The section specifies that one shall be experienced in transport, one in labour and one in industry and commerce. There is no mention of agriculture.
Oh, yes.
It may be that, in selecting the person versed in industry and commerce, somebody experienced in agriculture may be called in. Agriculture is our principal industry. It provides a great lot of revenue for the railway through the carriage of beet, wheat, turf and live stock. Senator Counihan pleaded to have a representative of the cattle trade on the committee. Of course, the cattle trade provides a good deal of revenue for the transport services, but the money that they pay to the railway company is really collected from the producers of cattle. I suggest to the Minister that he should consider putting somebody on the committee who will be a representative of agriculture.
Behind these three amendments there is the common idea of giving this committee an existence independent of the Minister for Industry and Commerce. We had under the 1924 Act a completely independent tribunal, one which, in fact, was presided over by a judge, and which had the powers of the High Court in discharging its functions. That system was not satisfactory, and anyone who had experience of it approves of the proposal to abolish it. It is now proposed that the obligations which were formerly discharged by the Railway Tribunal, obligations of a non-legal character, will fall in future on the Minister and not upon this advisory committee. I think that if Senators could get that distinction clear in their minds it would help them to understand why I am resisting their amendments. These functions of deciding on maximum charges, standards of classification, various determinations on what constitutes dangerous goods, the conditions under which goods may be carried at owner's risk rates and various other matters of that kind, formerly settled by the Railway Tribunal, will in future be settled by the Minister. That is the proposal: that the Minister for Industry and Commerce will make Orders dealing with these matters. The Minister, however, will have the assistance of this advisory committee. It is not going to be set up to carry on an independent and continuing inquiry into transport affairs, nor will it have anything to say to railway management. It will not be for that committee to say whether cattle marshalling yards should be in Tipperary instead of at the Limerick Junction. If suggestions have to be made by the Cattle Traders' Association in future they will, as in the past, be made to the railway company's management and not to this committee.
This committee will not be concerned with details of management. It will be concerned with giving advice to the Minister upon matters in relation to which the Minister is given power to make Orders which will be binding upon the company. I think it would be extremely inadvisable to constitute the committee on any other basis than that proposed here. Senator Duffy's suggestion was that the chairman should be appointed by the Taoiseach. Senator Sir John Keane suggested that members should be chosen representing organised interests. Senator Counihan insisted that members should be chosen by the Cattle Traders' Association.
One is all that I am looking for.
Senator O'Callaghan suggested that members should be chosen by the Beet Growers' Association. All these suggestions are the product of the same idea: that this committee should be set up independently of the Minister, and that, in some way, he should be required to act in accordance with their recommendations, and that they could decide on questions of policy and give effect to their decisions even against the wishes of the Minister.
That was never suggested by me.
I am saying that is the idea behind the suggestions. We could have an independent tribunal again. We could have a continuing inquiry into transport affairs again, but I do not think that we should. I would strongly resent the idea that the chairman should be appointed by the Taoiseach or the Government because behind that there is clearly the implication that the Minister for Industry and Commerce, whoever he might be, would be distrusted by the head of the Government or the Government as a whole, and that, consequently, they would be bound to consider some other person than the person that the Minister would appoint. Otherwise, there is no reason for the suggestion at all. Unless we assume that the Minister is going to get the most suitable person as chairman that is available, it is quite clear that the Minister is not being trusted, and that is why the suggestion is made, that as we cannot trust him to get that person we will go to the Taoiseach.
I did not say that.
I do not see any other reason why the suggestion should be made. Senator Sir John Keane spoke a lot about his concern for the ordinary citizen, and proposed to give organised interests the right to nominate members to this body. That is an arrangement that I dislike most of all because, in so far as the members of the committee would owe their membership to these organised interests and not to the Minister's nomination, they would naturally regard themselves as being independent of the Minister and under obligations to take a point of view on questions that came before it different from that which would be in accordance with Government policy. The proposal that one of the members should be nominated by the Cattle Traders' Association, or by the Beet Growers' Association, has behind it the same suggestion modified to a considerable extent.
It is because the Minister may, in the discharge of his functions under this Act, require to have a public inquiry held to give the ordinary citizen the right of access to somebody with whom he can discuss his application, that this advisory committee is being set up. It is being set up to conduct that public inquiry, to give that free facility to the ordinary citizen of making his case before a body with power to advise the Minister. If you try to make the committee anything more than what is proposed here—a body of persons chosen by the Minister to help him to discharge his functions and to be in contact with people who may wish to make representations—you are embarking on an entirely different scheme to what I had in mind when framing the Bill. Any other system of securing a committee, any other type of constitution for the committee, would, I think, inevitably lead at some stage to conflict between the Minister and the committee, and that should be avoided. Questions of policy will not arise here at all. Matters which may be referred to the committee, while they may be of great interest to particular localities or particular trade interests in the country, do not necessarily impinge upon transport policy. If the members of the committee are chosen by some other authority than the Minister, if they are chosen for some other reason than the desire of the Minister to get the most suitable type of person to investigate the facts for him, then inevitably questions of policy will arise, and with questions of policy a conflict which cannot be easily resolved.
Senator Counihan suggested that members of the committee should not be capable of being removed, even though they proved to be so divergent in their ideas from the Minister and so inspired by a contrary policy that their value to him was nil. Nevertheless, the Senator suggested that they should continue to be members of the committee. I think that is a complete reversal of the intentions of the section. It is, of course, intended that there will be a representative of agriculture. The Minister for Agriculture will have direct nomination, and while that arrangement was not necessary to the scheme of the Bill it is one which ensures that the person chosen to membership of the committee, because of his knowledge of agricultural conditions, will be one who is fully equipped to discharge the functions of membership. I want to be clear on this, that the person appointed by the Minister for Agriculture will not be appointed as a representative of agriculture nor will the other persons appointed be the representatives of particular interests. They will be appointed because they have specialised knowledge of a particular kind, and the provisions in the section are so framed as to ensure that the committee will be composed of members with that specialised knowledge.
They will be appointed as members of the committee and not as representatives of any particular interest. It is the committee as a whole and not individual members of it who will advise the Minister. I think it will summarise what I have said when I contend that the committee, as provided for, is an administrative device, and is not intended to be anything more than an administrative device, to help the Minister in the discharge of his functions. It is not intended to be an independent authority, a continuing inquiry or a centre of agitation for altered conditions of transport. It is intended to be an instrument by which the functions of the Minister under the Bill may be the more effectively discharged.
Business suspended at 1 p.m., and resumed at 2.30 p.m.
I should like to say a final word on my amendment. The position I visualise is, I suppose, totally contrary to the Government's attitude on a matter of this kind. I contemplate a body of four or five representatives of organised interests— people who know the country. It is fantastic for the Minister to suggest that they would be obstructive and would be trying to create trouble and agitation and cut across policy. They would be people very much in touch with the life of the country. Moving around, they would have heard criticism of the railway. Every month or two, the Minister would say: "We shall have these people in and have a talk with them." They will come along. The Minister himself need not necessarily be present. One of his senior executives and the chairman of the company would meet them and would ask them what they desired to have considered. They might mention the accommodation in the way of cattle trucks in Tipperary or some such matter. The chairman, who would have the general manager present, would give the reasons for the position and would promise to look into the matter. Surely, that is the human approach to the problem. What is the objection to that type of attitude?
None whatever except that it is an entirely different matter from that which this committee is intended to deal with.
The Minister's attitude seems to be directed towards keeping everybody at arm's length. He wants to have himself tucked away, and to make difficult any informal approach of that kind. Those people would have no power to impose their views, but you would, by this means, establish a human relationship, and you would have a useful interchange of views. The thing would be set going more successfully from the human point of view if that were done, but the whole spirit of the Government's attitude is against this way of doing business. That is why I put down the amendment.
There is no restriction on organised interests making any representations they consider necessary to the Minister for Industry and Commerce or the management of the company, or on their appearing before this committee when any matter affecting them is under consideration there. I should say that that is the way organised interests should act— not by having seats on the advisory committee but by making their case before the advisory committee.
What Senator Sir John Keane has said indicates that he does not quite appreciate the functions of the committee. As I understand, the committee will have no function except some matter is referred to them. If the Minister has an application before him, or if, on his own initiative, he desires to make some change, he may refer the matter to the committee. If he were considering the introduction of a new transport service in some district, or if he were thinking of revising the scale of charges, he might consider that the proper course would be to have the matter examined by this committee. The committee would be called to consider the referred matter, and they would take whatever steps they considered necessary to make themselves aware of the facts. They would then submit a report to the Minister, which he might, or might not, accept. I think that that is the position.
My own attitude is somewhat different. I think that the committee should be of such a character as to distinguish it from the Department of Industry and Commerce. There is no question of distrust in my mind. It is merely a question of the manner in which the committee is to be appointed. I have no doubt that, in the long run, the people to serve on the committee would be suggested by the Minister. Even in the case of the nominees of the Department of Agriculture, regard would be had to what the Minister had in mind respecting the constitution of the committee. The Minister for Agriculture would bear in mind the requirements of the Minister, having regard to the functions to be performed by the committee.
There is no suggestion of distrust at all. It is a question of clothing the committee with certain authority, and it appears to me that if the Taoiseach is to nominate the chairman, it is an indication to everybody that here is a very independent committee, but independent only in so far as they are required to report to the Minister for Industry and Commerce in regard to matters of public import. So far as the suggestions of Senator Sir John Keane and Senator Counihan are concerned, I am entirely at variance with them.
I think the Minister himself has probably some experience of other committees where it was found that an obligation to appoint a representative of certain interests was not satisfactory. One of my recollections goes back to the original Prices Commission. The Act under which that commission was set up in 1933, contained certain provisions requiring the Minister to have regard to certain things when making appointments. I doubt if the Minister is satisfied whether the appointments which he was obliged to make were in every way satisfactory. At least, it is common knowledge that he revised the Act subsequently, and took out every provision which imposed obligations upon him regarding the personnel of the commission. I think that, in itself, is an indication that he thought that the original method was not the best.
With regard to my amendment, I contend that we have a special claim to representation, a greater claim than any other section of the community, because, as I pointed out, of our experience in railway working. Most of the members of the cattle trade know a great deal more about what should be done in their own jobs than most of the so-called experts on the railways. Members of the cattle trade are fully aware of the faults which occur and how to remedy them. There is no use in putting up a case that an ordinary citizen can know all the requirements of the cattle trade: only a man who is in the job himself can fully understand it. I do not think that, from his experience, the Minister could say that we would be disagreeable or aggressive on this committee, and I urge him that he would be wise to select members nominated by the national executive of the live-stock trade—that is, if he wants efficient management. The Minister seems to feel that he should have people who would always be agreeable, people who would not put up proposals unacceptable by the management.
We do not care whether the manager agrees to the suggestion or not, but we want to put our point of view through the advisory committee to the manager. If the recommendations we put up are not acceptable to the manager he need not accept them, and therefore I do not see why the Minister should have such an objection to this amendment to secure representation for the national executive of the cattle trade on the board. I still feel strongly that the members of the advisory committee should have more independence. It would create more independence if they were not liable to be removed from office at the whim of any Minister. As I said, we have the precedent of the advisory committee on agriculture. The live-stock trade is looking for something on the same lines. The Minister for Agriculture need not accept the proposals or suggestions made by the advisory committee but, at the same time, he has no power to remove them from office, no matter how disagreeable some of them may make themselves from time to time.
How often do they meet?
They meet two or three times a year. The fact re- mains the precedent is there and I do not see why this amendment should be resisted in the case of the cattle trade.
I just want to say that the Senator is under a complete misunderstanding as to the functions of the advisory committee. It will have no responsibility for putting up suggestions or recommendations to the chairman. It will deal only with applications for alterations in the classification of merchandise, the schedules of maximum charges, the conditions and terms of carriage, and the provision of additional services.
Services come into my case.
The provision of additional services would involve not merely the type of equipment, or the mode of handling, but the question of new services linking to new centres. It will deal also with similar questions dealing with road transport and canal transport. It is on these things, which will be ultimately prescribed by statutory orders as part of the legislation to which the company must conform, that this committee will advise. It will have nothing to do with management, nor will it have any contact with the manager.
I want to ask Senator Counihan a question—how many members are there on this executive?
There are the chairmen and vice-chairmen of six associations scattered all over Ireland.
How many members would they have in all?
They represent about 1,000 members.
I think the Minister misunderstood my point. I asked that there should be a representative of agriculture generally.
One member will be nominated by the Minister for Agriculture.
But that is hardly good enough. The Minister for Agriculture does not always nominate persons experienced in agriculture. That is the only point. I am not asking for a representative of the Beet Growers' Association. I am asking for somebody who can represent agriculture generally, embracing all forms of agriculture.
The intention is that one of the members will be experienced in agriculture.
Shall I put amendment No. 44?
Does the Minister still consider that he should retain sub-section (3)?
I want to be put on record as emphasising the principle that I tried to explain to the House.
We will deal first with amendment No. 44. Is No. 44 being pressed?
Yes.
Before you put that Question, Sir——
The Question has been put, Senator. The amendment has been negatived.
I would like to have a division on the amendment.
The Senator will be recorded as dissenting.
Yes, I want that to go on record.
Is Senator Counihan pressing amendment No. 46?
I am afraid it is hopeless. I will let it go by default.
Amendment withdrawn.
I am not withdrawing it. I will let it go by default.
I move amendment No. 47:—
In sub-section (6), lines 9-10, to delete the words "such remuneration and"; in line 10 after the word "expenses" to insert the word "and"; and in line 11 to delete the words "and other expenses".
The idea in this amendment is that there should be no remuneration for services to any member of the tribunal or the committee. My reason for that is that I feel we would have a very much more competent body selected if they were not paid members. If they are going to be paid you will have a host of people of all shades of politics rushing the Minister to be put on the tribunal, and I do not think that this should be made a job for any section or any Party.
I have been on some committees and on none of these did we ever get a farthing's remuneration except sustenance and out-of-pocket allowances. The same thing should apply in this case. I have been appointed on committees of selection and we have often been engaged for a couple of days but we never got anything but sustenance allowance. That allowance was so small that if we had an afternoon session we were told by the official we could only spend 3/6 on our lunch. From my experience on these committees you will get as good, if not better, men without paying them any remuneration for their services, and in that case it does not look like being a job for anyone.
I do not dispute the fact that one can get for various committees of this kind people fully qualified who will give their services without remuneration, but the number of such people is limited, and the effect of a provision preventing the payment of remuneration to these members would be to confine the selection of them to a very limited circle. I can say from experience, particularly from the experience of recent years—because there have been a number of tribunals acting—that it is probably a better principle to insist on paying members of a tribunal than to confine yourself to getting people who are willing to act without being paid. Those who are willing to act without remuneration are, as a rule, permanent officials of organisations or other people who have got some special reason for aspiring to membership.
I know that difficulties arose in connection with many of the tribunals now operating under the Department of Industry and Commerce, and which had, necessarily, to meet outside Dublin, in getting labour representatives and others willing to undertake membership, because it was obvious that the subsistence allowance sanctioned by the Department of Finance was completely inadequate for the purpose of meeting out-of-pocket expenses. It was, therefore, unfair to many of them to ask them to leave their employment, or whatever work they might be engaged in, to undertake the work of these tribunals in circumstances which meant that they would lose money. The principle of providing some remuneration for members of committees of this kind is sound. I contemplate that the remuneration would take the form of a fee paid per day upon which the committee met. That is the normal practice involved in cases of this kind. It is not an annual salary or a monthly allowance. The fee is designed to ensure that an individual member will not be at any loss by reason of membership of the committee. I would strongly resist the idea that the Bill should be amended to make it impossible to pay an allowance to members of this committee. On the contrary it is a much better system to have power to pay the allowance, and it is a better practice to pay it, particularly in view of the fact that that gives a much wider field of selection for membership.
Amendment No. 48 is consequential on No. 44. It is not moved.
On Section 63 I intended to put down an amendment with regard to the doubling of——
That matter could come under the next section, Senator.
I move amendment No. 49:—
At the end of the section to add the following words "or on any matter which in their opinion is deserving of the attention of the Minister".
This is really my last shot, but I am afraid as far as I can see there is not much more than blank ammunition in it. Could the Minister even go so far, now that he has got an advisory committee of his own choosing, to allow that advisory committee to bring forward any matter which they think is deserving of his attention? I am sorry to have to labour the principle I am after. I would like to put it from another angle. Not very long ago— a couple of years—the Government set up a body to go into the question of the vocational principle in governing the affairs of the country. It produced an enormous report, most of which I think is pure ideology, but that is by the way. Here, however, was an attempt in the very simplest practical manner to try to embody in our affairs the principle of vocational representation. It was a very small attempt, but if the Government has got any sympathy with this vocational ideal it should go so far as to let it operate in the management of the railways. It is a small thing but I want some means of bringing matters to the notice of the Government through a constituted body. Just now the Minister said he would be glad that these people should come together, but surely they are not going to come together unless they have a status. People coming together with a status should be given more scope than to deal with the limited number of matters the Minister mentioned. If they feel there is dissatisfaction in regard to transport matters they should have power to go to the Minister and say: "We hear there is a good deal of discontent about that." Surely it is not asking for very much to ask for that provision.
This is not a commission of inquiry. It is an instrument of administration. The members are not selected on any vocational principle. They will be selected because of their specialised knowledge and they will not be in any sense representative of certain interests. They will be people chosen because they are personally suited and have the experience and qualifications which will make them useful members. This committee is established for one reason, and one reason only, and that is, to facilitate the Minister for Industry and Commerce in the discharge of certain functions. It is not intended that they should have any powers of inquiry outside the range of matters which the Minister may refer to them.
I am not asking for powers of inquiry, but that you should simply give them access or initiative to go to the Minister and say: "Look here, we feel that this is wrong or that is wrong. Can you do anything further about it?"
The Senator says that this and that is wrong. What does he mean by "this" and "that"?
I am referring to the feeling there may be in the country, say, amongst cattle traders. Let us say that the cattle traders are not satisfied or that agriculture is badly hit. The committee should have the right to say: "We feel that agriculture is too heavily penalised by these rates and that something should be done about it." There may be a very heavy rate on fresh butter, salt butter, potatoes or anything you like. There may be a lot of feeling on the matter and you may have people coming from the co-operative societies to complain about these matters.
Does the Senator appreciate that any of the parties interested in rates can apply at any time for a revision of the rates and get their application considered by the committee?
This body will have no initiative.
Could not these matters be raised in the ordinary course of procedure in this House by way of motion?
No.
For instance if Senator Counihan feels aggrieved with regard to the provision of cattle trucks, or with regard to the charges made for the transport of cattle, is it not within his power to table a motion here and have it discussed?
I should not like to say so.
One would hope that it is not.
I presume that in so far as the Minister may have made an Order fixing maximum charges, the matter could be raised here because there would be definite Ministerial responsibility, but it would be difficult to say where the functions of the Minister would come up against the functions of management. The matter of the provision of trucks is a matter of management.
If Senator Counihan feels that the transport services are not adequate for the needs of the trade, would it not be in his power to table a motion and to deal with the matter by focussing attention on it here?
Say that a person applied for a specific purpose for an augmentation of a specific service——
My point is that supposing some Senators feel that this arrangement will not work out, as the Minister and most of us believe it will, there is always power to focus public attention on it through the medium of this House.
If somebody had applied for the provision of a new service and if the application were refused by the Minister, following the report of the advisory committee, or without reference to the committee, the matter could be raised here, but if it was raised here in the first instance I do not think the Minister could be held responsible for that.
If the Minister refused to submit it to the advisory committee it could then be raised?
Certainly.
I move amendment No. 50, which is in the name of Senator Kyle:—
To insert at the end of the section the following new sub-section:—
( ) The Minister shall, as soon as may be after the 31st day of March in each year (except in the year 1945) lay before each House of the Oireachtas a statement in such form as he thinks proper, setting out the matters referred to and dealt with by the advisory committee during the previous calendar year.
I do not know whether there is any point in pressing this matter. The purpose of the amendment is to secure that a report of the proceedings of the advisory committee would be tabled periodically. That is to say, that an annual report of the proceedings should be tabled in both Houses. If the Minister is resisting this proposal, of course it is no use proceeding with it.
The Senator appreciates that every application considered by the advisory committee must be published and that every Order made by the Minister following receipt of the report must also be published. There is, therefore, full publicity arranged for everything that will come before the committee.
Before we pass this section, I should like to put in a plea in connection with the singling of the line from Athlone to Dublin. I intended to put down an amendment dealing with this matter but I was told that as it would interfere with the management it would not be in order. I shall try, however, to frame an amendment for the Report Stage. If the Minister would give me an assurance that he will bring the matter before the advisory committee, it would please me and please the cattle traders. We wish to have the line from Dublin to Athlone reconverted into a double track. As I pointed out on the Second Reading of this Bill, the cattle trade is as much interested in a quick, efficient service as it is in cheap rates. Before this line was singled, I moved in this House a motion to get the Government to prevent the railway company from singling the line. At that time we had a director of the railway a member of this House and, against all my protests, he pointed out to the Minister in attendance and to the members of the Seanad that when this line from Dublin to Athlone would be converted into a single track, with new signalling methods and other improvements, we would have a better service on the single line than we had at that time with the double track. While he did not convince me or the cattle trade, he convinced a number of industrialists that we would have a better service. Since that time there has been the greatest congestion that could possibly be imagined on the line from Athlone to Dublin.
A good many lines converge at that particular point. We have the Galway to Dublin line, and the Mayo line joining there. The Galway line takes a big percentage of live stock from the Limerick to Ennis area. A large amount of traffic from West Clare is also carried by that line. Then on the Mayo line very heavy traffic from the North-West of Ireland comes through Athlone and at Mullingar you have a still further influx of traffic from Cavan and the north-west. The cattle trade wants a quick and efficient service, but it is impossible to get it with a single track. I would be satisfied if the Minister would refer the matter to the advisory committee with a view to having a recommendation sent to the Great Southern Railways Company to have the line, at least from Athlone to Dublin, reconverted into a double track.
On some previous occasion I expressed doubts as to whether the singling of that line was a wise economy, but it has been done, and that fact must now influence decisions in relation to it. I suggest that the cattle traders could not presume to be transport experts any more than this advisory committee will be a committee of transport experts. What they want is a quicker and a better transport service, and it will be the function of the transport company to see that they will get a quicker and a better service, but whether that can be done by doubling a line, singling a line, or by other means, is not a matter on which I myself could offer an opinion, and I suggest that it is a matter on which the cattle traders could not offer an opinion either. That is a matter for the management, and whether it is done by one method or another is not a matter for me or the cattle traders. I think that the management of the company will take all the necessary steps that are required to see that a proper service is provided, and we should leave it to them to decide which one of these steps should be taken— whether by providing a second line or by singling a line, or any other method which seems best to them.
Will the Minister leave it to the advisory committee to decide such matters?
No. It will be entirely a matter of technical management.
Who will have to do with that?
The management of the company.
The case is hopeless, so.
I should like to ask the Minister for information in regard to Section 65. Provision is made in sub-section (5) of the section to the effect that if any person who is summoned as a witness before the advisory committee fails to attend or refuses to take an oath or to produce any document in his power or control, legally required by the advisory committee to be produced by him, or to answer any question which the committee are legally entitled to ask, he will be guilty of an offence. It seems to me that the method of enforcing the penalty is to proceed in the District Court against that person for having been in default and, on conviction, he is liable to a penalty. I do not know whether that is the best form or not, but I have a recollection with regard to a somewhat similar body that was set up some years ago—I am referring now to the Prices Commission—in which some difficulty was experienced in enforcing a somewhat similar provision. I have not checked up to see if this draft is in precisely the same terms as the corresponding section of the Prices Commission Act, but the Department has had the experience of administering that Act, and perhaps they have made good its deficiencies, if there were deficiencies. There was, however, a weakness discovered in that Act in regard to the enforcement of the provision dealt with here.
I do not know if there will be any difficulty in enforcing this. The alternative would be to give this committee power to deal with an offence, but I doubt if that would be wise. I do not think it would be wise to make failure to meet the wishes of the committee an offence, unless it is proven in court.
Would it be possible, in the event of an offence, to make it competent for the committee to inflict the punishment?
That would be very undesirable.
No, that would be very undesirable. What happened in the case of the Prices Tribunal was that they sent a man to the High Court and the court found him guilty or not, but the tribunal itself had no power.
I remember the case of a man who refused to give evidence, and it is my recollection that the case against him did not succeed in the court.
Oh, yes.
As far as I remember, the man was found guilty and convicted.
I move amendment No. 51, standing in the name of Senator Sweetman:—
To add to the section a new sub-section as follows:—
( ) Such regulations shall not exclude the right of any person or persons or body of persons directly or indirectly interested in the matters upon which the advisory committee have been asked to report, appearing in person or by solicitor or counsel before such advisory committee.
Senator Sweetman has informed me that this amendment is put down for the purpose of seeing that no persons interested in matters on which the advisory committee have been asked to report shall be precluded from appearing before the committee either in person or by solicitor or counsel. There is a proviso already in Section 65 (2), but I do not know whether the actual power of making regulations here could in any way interfere with what is in Section 65 (2).
It is proposed to give the committee full power in this regard. Senators may recollect that the Prices Commission, to which reference has been made already and which had similar powers, decided that they would not hear people through solicitors or counsel. They said, in effect, that they were not concerned with arguments or opinions, and that their function was merely to ascertain the facts and come to their own conclusion on the facts. In the case of this committee I think it is probable that they would be concerned with the arguments that might be advanced in favour of a particular course rather than with the actual circumstances. In this particular case I think the position would be likely to be the reverse of that of the Prices Commission, and they would be concerned with the case that could be made for the alteration of some existing order or the provision of new facilities.
I have no brief for the legal profession, although they sometimes assist in elucidating facts as well as putting forward arguments, but in this case I think it might be necessary to have legal assistance, because you may have groups or a specific organisation which would come together in order to have a case put in relation to the provision of a new service, and, naturally enough, they would employ counsel. From what Senator Sweetman told me, his sole object is that he thought there was a power here to prevent that, and he thought that they should not have power to prevent it.
The section is in standard form, and even if it would permit of the committee making regulations preventing people being represented by counsel, I should say that it is extremely improbable that that power would be used in that way. If a county council or borough council were making a case that certain facilities should be provided, it would be more convenient for everybody to have them represented by counsel.
Is not this section precisely similar to sections in all the other Acts of the same kind?
Yes, and various committees have voted for similar practices.
On that section, Sir, I wonder if there is some special reason why the Minister should provide that the secretary of the advisory council should, in fact, be an officer of the Department of Industry and Commerce. I think that that is an unusual stipulation.
Well, it was the practice in relation to the Railway Tribunal. It is not a whole-time job, and I think it is desirable that the person to occupy that position should be an official of the Department. One could not very well envisage its being a whole-time job, but at the same time it is desirable that the person occupying the position should not be in non-State employment. In the case of the 1924 Act, the secretary was an official of the Department of Industry and Commerce.
In the case of other bodies of this kind permission is given to the Minister to appoint a secretary without any limitation as to choice and, no doubt, he is going to choose one of his own staff, who will probably be conversant with transport problems. I admit that, but I wondered why it was necessary to insert in the Act itself that the secretary must be an officer of the Department of Industry and Commerce.
The only reason is that the committee in this case is part of the administrative machinery of the Department, and I think it is natural, in those circumstances, that the person to be appointed should be an official of the Department.
Nobody else could do it.
Yes, that is so.
I understand that Senator O'Dea has a point to raise on this section.
I should like to know if the Minister intends to reserve power to fix different charges for particular areas? I refer particularly to areas in which the railway service has been discontinued, and where the public have suffered as a result of that discontinuance. I think those are special cases, and that the people ought to get special terms in those areas. I do not want any such provision put into the Bill if the Minister will give me an assurance that he will consider the matter favourably.
The Minister's powers under the Bill are confined to determining maximum charges. It would be open to the company to provide for different charges in different areas, if the circumstances in their opinion justify it, but the Minister would have no power to require them to charge less for the transportation of the same goods over the same distance in one area as compared with another.
Would the Minister not have power to fix maximum charges for a particular area?
No. The schedule of maximum charges would apply to the whole system; it would be a charge for the conveyance of a stated quantity of the specified goods over a mile.
Perhaps I will move an amendment on that later.
The company could, in fact, charge a special rate in a special area, but they could not be required to do it.
They are free to do it?
Yes.
I move amendment No. 52 standing in the name of Senator Sweetman:—
In sub-section (1) to delete paragraph (c), and to insert therefor the following paragraph:—
(c) the Minister after consideration of the said proposal and of any representations made by interested persons or, in case the said proposal has been referred to the advisory committee, after consideration of their report and advice, shall determine the classification of merchandise applicable to the company for the said purpose.
This amendment appears to be much better drafting and much clearer than paragraph (c) of sub-section (1) in the Bill.
I do not read it that way. As I read it, the purpose of the amendment is to provide that the Minister would consider the representations of interested parties unless he referred the matter to the committee, in which case he would be open to consider only the report of the committee.
That is so.
I do not think that would be right. I think the Minister would have to consider the report of the committee in relation to the representations which had been made and to the relevant facts, including his own policy in connection with transport generally. I think it would be wrong to say that the Minister could only consider the report of the committee and could not have regard to any other representations that might be made.
I do not think this would prevent the Minister from doing that.
That is how I read it. The amendment says: "the Minister after consideration of the said proposal and of any representations made by interested persons or, in case the said proposal has been referred to the advisory committee, after consideration of their report." I must say that I interpret the amendment to mean that the Senator desired to confine the Minister to making his decision upon the report of the committee, if the matter had been referred to the committee, and I would dispute the wisdom of that. I would say that, while the report of the committee would undoubtedly have most influence, the Minister should not be precluded from giving consideration to any other representations that might be made by the parties concerned.
That did not seem to me to be in the amendment. However, we will not argue it now.
I move amendment No. 53:—
In sub-section (1), page 32, line 43, to delete the words "if he thinks fit, may," and substitute the word "shall."
In this case I want to draw attention to what seems to me to be the procedure under Sections 71 and 72. Section 71 confers upon the Minister power to revise the classification of merchandise carried over the railway system. Section 72 confers upon the Minister authority to revise the schedule of maximum charges. He is authorised in both instances to refer the matter to the advisory committee before reaching a decision. I think there is not much case for urging that he should in fact refer the revised classification to the committee. It may be desirable to do so, but I would not say that there should be an obligation on the Minister to do it. But I think when it is a question of revising the schedule of maximum railway charges, there ought to be an understanding that, except in a very minor instance, the matter would in fact be referred to the advisory committee, and that is what I am seeking to do here. If the Minister says that in fact, where there is a substantial modification, reference will be made to the committee, I am satisfied.
That is the intention In the preparation of the general schedule, or any widespread change in the schedule, reference will be made to the committee, and through that reference interested parties will be given an opportunity of making whatever case they wish to have considered. It would be only where comparatively minor charges of a purely formal or unimportant kind were in contemplation that the committee may not be consulted.
I am satisfied with that.
In regard to this section, there is one point which I should like to raise. There is a provision in sub-section (3) that "the company shall, if required by any interested person, use all proper endeavours to provide a reasonable system of through bookings with through rates, fares and facilities by all reasonable routes". But in an earlier section it is contemplated that Córas Iompair Éireann may in fact discontinue its associations with the clearing house. I am wondering if it is a settled policy that the company shall not be associated with the railway clearing house, because if that is so, I cannot see any means by which the intention of sub-section (3) can be implemented.
The Senator, I think, is confusing the British Railway Clearing House with the Irish Railway Clearing House. The Great Southern Railways Company is a member of the British Railway Clearing House, but so far as I know all the clearing done in respect of cross-Channel traffic is through the Irish Railway Clearing House. There may be some section of the British line—I think there is portion of the Midland line—which is still cleared through the British Railway Clearing House, but that is an anachronism which I think should be ended. The bulk of the clearing business in respect of cross-Channel traffic is done through the Irish Railway Clearing House. The only effective result of the membership of the Great Southern Railways Company in the British Railway Clearing House is participation in the railway clearance system superannuation fund, and arrangement which I think it is also proper to end.
I merely wished to draw attention to the fact that this sub-section imposes an obligation to endeavour to provide through bookings and through rates.
That is right.
I may be entirely wrong, but I had an idea that you could not implement this provision except through a clearing house arrangement with Britain.
There is that arrangement. The Irish Railway Clearing House does that, if not for all the traffic, for the great proportion of the traffic. I think there is some part of the British railway system—the London, Midland and Scottish or the Midland Great Western Railway—where the clearing is still done through the British house, but that is an anomaly which should be disposed of, I think, at an early date. In respect of the bulk of the traffic passing between this country and Great Britain the clearing arrangements are effected by the Irish Railway Clearing House.
So that, in fact, if the Great Southern Railways Company today has a through booking to Leeds, the booking would be done through the Irish Clearing House.
It would be done through the clearing house here.
There is another point which, I think, is of importance to which I should like to refer on this section. Sub-section (5) deals with disputes which may be determined by the High Court. In most Acts containing similar provisions, provision is made for the making of rules of court to carry over until rules of court are made in the ordinary course. Is that necessary in this case?
Section 107 makes the necessary provision.
I should like to have an assurance from the Minister that there will be no alteration by the new company of the rates for live stock— that they will still be carried at owner's risk, as at present.
I could not say that there will be no alteration. That is one of the matters which could be dealt with by Order under the Bill. The purpose of this section is to provide that, in the case of live stock carried at owner's risk conditions before the established date, the position will be unchanged by the enactment of this measure. It may, of course, be changed by an Order made by the Minister subsequently.
I take it that the Minister has power to vary the determination under sub-section (2).
That is so.
Sub-section (5) deals with by-laws which are being carried over under the Act of 1924. I take it that there is no need for a provision to enable the company to make by-laws— that they have inherited that power?
They will have that power. We are simply providing that the by-laws of the existing company will continue in force after that company has been dissolved and will be the by-laws of the new company until changed.
Where is the power to change the by-laws?
It is carried over in earlier legislation.
Is it contemplated that the proposed charges dealt with here would be referred to the advisory committee?
Not necessarily. The position of those other companies is different from that of this company. They will be operating mainly under existing legislation and they will not have the same rights or obligations as Córas Iompair Eireann. We make provision here for alteration of the maximum charges of railway companies other than this company, but the circumstances, as the Deputy appreciates, are fundamentally different.
In the case of the Great Northern Railway Company, is there any system of publication or reference similar to that in the case of Córas Iompair Eireann?
There is an obligation on the company to maintain, available for inspection, at all their depots the rates of charge in operation and the conditions of carriage. That is their obligation at present, and it remains unchanged.
I am not sure that I did not mislead Senator Duffy just now in regard to alterations of maximum railway charges of companies other than Córas Iompair Éireann. The alteration of the schedule of maximum charges for other railway companies, when application is made, is covered by the Seventh Schedule. There is provision there for the publication by the applicant of the nature of his application. Consideration will be given to it in accordance with the terms of that schedule.
That is the point about which I was anxious—whether the Seventh Schedule covered outside companies.
It does.
In sub-section (4) of Section 92, there is a phrase which causes me some trouble. The sub-section states: "Where a schedule of maximum road charges of a statutory carrier is enforced, the charges appearing therein shall, subject to any alterations made under this Chapter, be the maximum charges which that carrier shall be entitled to make..." It seems to me that, if there is a schedule of maximum charges, it will be the schedule settled by the Minister. I cannot see the reason for inserting the words "subject to any alternation made by the Minister", because the alterations will have been made and the schedule published will be that revised by the Minister.
There will be an elaborate schedule of maximum charges relating to various classes of goods. That schedule may be amended in respect of one classification without putting upon the company the obligation to print a new schedule in respect of one alteration. If the schedule is amended in one particular, it is the schedule, as amended, which will be operative.
And any other schedule will be unofficial. If the company keeps exhibited a schedule which has been revised without inserting the revised particulars, it will be an obsolete schedule. It will, in fact, no longer be the schedule. The schedule will be the revised document in which the Minister has made his corrections or substituted one set of figures for another.
I will look into that point.
There seems to be something peculiar about the drafting.
I am not moving amendment No. 55.
I want to raise a point on this section. It is an omnibus section which says that all statutory provisions in force immediately before the establishment of the company in respect of the fixing or altering of charges chargeable by canal undertakings shall be repealed. Is there a reason for inserting this section here, as distinct from including it in the Schedule?
There may be. It is necessary to make a clean sweep. No doubt, we could go through all the private Acts and other legislation and provide for the deletion of a particular section or part of a section relating to canal charges but, conceivably, we might miss some provision, and it is desired to make it clear that all previous legislation relating to canal charges, some of which is very archaic, should be repealed and that only this system of maximum charges will operate in future.
I move amendment No. 56 standing in the name of Senator Douglas who, unfortunately, cannot be here:-
In sub-section (1), paragraph (a), line 50, page 43, to delete the words "are, in the opinion of the Minister" and substitute the words "have been recommended to the Minister by the Council of the Federation of Irish Manufacturers or the Council of the Associated Chambers of Commerce as persons".
The attitude of the Minister on previous amendments regarding the advisory committee would indicate that he would not accept this amendment, but the circumstances are rather different here. This is a case where he is appointing assessors to the High Court to deal with certain matters and it would appear that he ought to appoint assessors from people nominated to him by the Council of the Federation of Irish Manufacturers or the Council of the Associated Chambers of Commerce. Senator Douglas is interested to see that persons experienced in industrial and commercial affairs should be given an opportunity of presenting their views. That would seem, in its context, to be reasonable, and it is not contrary to the principles stated by the Minister.
It would probably produce indignant protest from Senator Counihan if it were accepted, on the ground that the industrial and commercial people would not cover the agricultural aspects. I think it is extremely probable that all these bodies would be asked to submit names for inclusion on the panel. I doubt if it is wise to confine the Minister to these two particular bodies.
I move amendment No. 57:-
In sub-section (1), after the word "aggrieved" in line 20, to insert the following words and brackets: "(but without prejudice to the right of any such person himself to appear as complainant)".
I was not absolutely happy with the provision that the Minister for Agriculture could appear on behalf of another person, lest it would take away from another person the right himself to appear, and I was rather supported in that view by some of my colleagues.
The section merely permits of the appearance of the Minister for Agriculture and it does not take anyone's rights away.
One of the other legal members of the House called my attention to it. He felt there was some doubt and that the matter should be cleared up. If the Minister is satisfied I am satisfied.
The matter was considered, and I was advised that the section in no way affects the right of other persons to appear.
I move amendment No. 58:—
In sub-section (8), line 45, to delete the word "may" and substitute therefor the words "shall not except with the consent of the Minister who shall consult the advisory committee before giving his consent."
The object of this amendment is to secure that an abandoned line cannot be sold without the consent of the Minister who, before giving that consent, shall consult the advisory committee. I think that is only common sense. The Minister said in the Dáil that, looking forward, there may be different means of transport in a very short time. In this House he said we are taking too much out of that statement, but I felt that it was only common sense. None of us can visualise what improvements, or what different modes of transport will be developed in ten, or even five years, and, by keeping the abandoned lines intact, they would be available for use as light railways for passenger services. They could ease the burden on the roads between many centres whether the carriages were drawn by motor or electrical power. For instance, between Claremorris and Ballinrobe, and between Galway and Clifden, there are branch lines and these serve centres which are greatly patronised by tourists.
I do not think that the selling value of these branch lines to the railway company would amount to very much, and for agricultural purposes the site of the abandoned track would be practically useless. The upkeep of the bridges would not cost a great deal, and level crossings could be closed at each side. The rent of the lodges on the abandoned lines would make as much as would pay for the upkeep expenditure. I do not think the company would have to pay any rates, because the owners of abandoned houses are not required to pay rates. The amount of money the company would get by selling the sites of these abandoned lines would be very small, and if there is a possibility of a change in the mode of transport in the next five or ten years it would be unwise to dispose of them. I suggest, therefore, the Minister should consult the advisory committee before he would give permission to the management of the company to get rid of these lines in any way.
The order cannot be made by the Minister for the abandonment of a railway line unless he has previously made an order for the closing of the line under the 1933 Act. Under the 1933 Act he cannot make any order for the complete cessation of rail services on the line unless he is satisfied that public transport facilities, constituting an adequate substitute for the abandoned services, will be provided by the company. The position is, therefore, that there must first be an order closing the line. That order has been made in a number of cases, and in each case the local interests concerned were given full opportunity of making their representations in the matter. At some subsequent stage after the services have ceased on the line, but only if there has been the closing order, the Minister can make the abandonment order. The purpose of making the abandonment order is not merely to give to the company certain money which will accrue from the disposal of the company's property, but mainly and primarily to release the company from its liabilities in respect of the line; its liability to maintain bridges, under the road and over the road, provide level crossings and other facilities, and to permit of the transfer to the local authorities of the maintenance of these bridges on terms which are reasonable to both parties, It has also to provide for the removal of bridges over the road, or at least for the removal of the superstructure which is no longer required, and in order to enable the local authority to do that subject to payment by the company, authority is provided in this section.
The advisory committee does not come into this picture at all, because there can be no question of an abandonment order at all until there has been a closing order previously. A closing order is made under the 1933 Act, all the provisions of which must be observed before that order is made. To sum up, the position is that there cannot be an abandonment order until there is a closing order and the 1933 Act provides that there cannot be a closing order until there is an arrangement to provide adequate substitute services for the railway services which have been terminated. The purpose of the abandonment order is to enable the company to relieve itself of the liabilities it previously had in relation to the line.
Some of these branch lines, notably the Clifden line, were closed because they had got into such a state of disrepair. The Clifden line was closed because it was unsafe and could not be made safe without substantial capital expenditure. To put the Clifden line into a position in which it would be safe for traffic would require an expenditure of £800,000. The company could not face that expenditure nor would the revenue it was getting from the line justify that expenditure, but we could not leave the line there until some bridge fell in on a railway engine. The Department of Industry and Commerce has obligations to see that railway lines were not used unless they were safe and it could have required the company to undertake expenditure to make that line safe. As it was quite obvious that the company could not undertake that expenditure the alternative of closing the line and of substituting road services was resorted to.
Would the Minister consider the advisability of relieving the company of those liabilities by allowing their lines to remain intact for ten years, say, so that they may see what lines they would require?
The Senator may take it there will be no abandonment Order made in relation to any line unless it is quite clear that it is not likely to be required.
But the Bill is not passed yet. Cannot you put in any alteration you like yet?
A line will be closed for a substantial time before there is an abandonment Order.
The railway company have sold the line and the bridges relating to the Clifden line. There is no line there now.
I think Senator Counihan's trouble is that he thinks a closing Order and an abandonment Order can be made simultaneously.
No, they are not made simultaneously. You have the closing Order first and then the abandonment Order. The abandonment Order enables the company to get rid of a lot of the responsibilities in connection with the lines. It enables it to remove bridges if not required by a local authority and to take other steps necessary to ensure that the company will have no obligations of any kind in relation to the place where the line was before.
On the section, I would like to mention that in the other House the Minister dealt with sub-section (8). I think he introduced it as an amendment himself in the other House. He said there that the amendment proposed that the land would be offered in the first instance to adjoining landowners, and only if they declined to buy it will it be sold by public auction. The section, however, does not say that. It says that the land may be sold either by private treaty to the owners of land on both sides, or by public auction. It does not say that the people on either side will get first option for the buying of the land by private treaty.
The intention is that the company will sell to the owners adjacent to the line. I think the obligation imposed on them in this section requires them to negotiate by private treaty for sale to these owners before the public auction. I think the private treaty must come first.
It says "either or". It is, of course, a very small point, but let us be clear on it. The company could say that they preferred to sell by public auction.
What we set out to do is to empower the company to sell by private treaty instead of selling by public auction. Originally, the provision was to enable them to sell by public auction, but it was realised that if that was provided, and if people were to come in and buy the land which is beside the local landowners, that we would be starting a few local land wars. All we can provide is for the local people to buy it first if they want to.
Surely it is only common sense to allow the local owners to buy the portion of the line running through their land?
We are empowering the railway company to offer it to them before having the public auction—to offer it to them if they want it, and if not, to have the auction.
You might be held to ransom.
The suggestion is that there will be a mandatory condition on the company to have the land offered by private treaty, but the time would come when the Minister is no longer Minister for Industry and Commerce, when his directions would no longer be operative, and when there might be a different chairman.
I think you cannot have it more definitely than it is there You cannot, I think, by amendment make it more clear.
I would suggest that this land should be sold to the Land Commission and that they would be the proper people to divide it. There would then be no rows about people coming in and buying the land beside the local owners because the Land Commission would know who are the suitable people for the land. The land could be acquired by compulsion from the railway company and let the Land Commission divide it.
Supposing for a moment that the Senator had a railway line running through his farm in Ballyboughal. Would it not be common sense that he should have the first right to purchase it by agreement? Would it not be quite reasonable that if that were the case, he should have the right to purchase the land?
You are putting in an "if" there.
What we are really setting out to provide is this: that only the adjoining landowner would have the right to buy by private treaty.
I think it should be given to the Land Commission.
Does the sub-section also mean that where there is an auction it must be sold to the adjoining owner?
No.
Are not the words "by public auction" governed by the words "to the owner of the land on both sides of such line".
I shall ask the draftsman.
Would it not be necessary to say "the owners of the land on both sides"? There might be two owners.
I think the definition section covers that.
I shall have the point examined.
On this part of the Bill I want to ask the Minister what the policy of the Government is with reference to the issue of new road transport licences. Obviously one of the difficulties of our transport situation is the fact that we have more transport facilities than we have goods to transport, and one of the conditions of the success of the new company will be if it is able to absorb to itself a lot of the existing road haulier transport concerns. The more of these there are in existence, the greater will be the commitment by way of compensation that must be made by the new company in taking them over. I think the Minister, therefore, should be very chary of adding to the number of road transport haulier's licences throughout the country.
This section has the effect of bringing the Road Transport Act of 1933 within the ambit of the Bill. I should like to put a few points to the Minister on the administration of this Act, particularly Sections 54 and 55, which deal with the measure of compensation to be paid to hauliers whose business is taken over. It has been suggested in the past that when road transport businesses were being acquired by the Great Southern Railways Company, very often prices were offered by the railway company to these hauliers that were very much too low. I might put it this way, that advantage was taken in the past of the fact that certain hauliers were not too well up in what they were entitled to get and, in consequence, they were made to accept sums much smaller than would have been considered reasonable. The suggestion was put to me that there should be some statutory provision that the terms upon which a haulier's business would be taken over should be based upon a minimum number of years of purchase of the profits that the business had been making for a number of years. I can quite appreciate the Minister's point of view that that might not always work out satisfactorily because even on the profits basis, a business would vary, but I think it would make for easier working of the Act and would preclude any possibility of people suggesting that the large concern was taking an unfair advantage of the small owner. This matter was referred to in the report of the Transport Tribunal and, with all respect, as the Minister has differed from that report on many other occasions during the last few days, I am going to take the liberty of differing with the report in so far as it affects the fixing of compensation at four years' purchase. It does seem to me that if a man has built up a business over a period of years and that a concern established by the State is going to take that from him as a monopoly, one should not be small in the ideas one has about the compensation to be paid. It means that a man has to go out of the way of living to which he has been accustomed for many years and start in a new occupation. It is not always easy to make such a start. For that reason I would urge the Minister to consider the matter in the light of my suggestion.
I make another suggestion, that though the effect of the Report of the Transport Tribunal is not statutory, it must nevertheless to some degree work on the mind of the arbitrator, and I suggest that, in dealing with that, the Department would see that it is borne in mind that to take anybody's figures of the profits over emergency years as compared with pre-war years might mean a very unfair discrimination. It might mean that in certain cases that a man would have higher profits during the emergency years because there was less transport in his area, but it might also mean that he would have smaller profits because of the curtailment in supplies of petrol. I am told —the Minister can tell me if I am correct—that there was one case where the railway company offered a man £250 and in which the arbitrator subsequently fixed the compensation at £1,400. If the railway company were in the habit of making offers like that, it would seem that there is a very strong case for some statutory minimum so as to ensure that the small man would know exactly where he stood and would not have continually to fight his case through arbitration.
With regard to the issue of new licences it will, of course, be necessary under the provisions of the Bill to grant such licences to persons who have been carrying on a haulage business in the exempted areas abolished under the Bill. Apart from that, it is extremely unlikely that any new licences will be issued. In fact, new licences cannot be issued unless the Minister is satisfied that the statutory transport undertakers have failed to supply, or refuse to supply, transport facilities which are reasonably required in any locality. It is only in very exceptional cases that such circumstances will arise involving the issue of new licences. I agree fully that it is undesirable that we should increase the number of licences except in agreement with the company and except where the licenses is to be confined to conducting the type of business in which the statutory company is not interested.
With regard to the price paid for acquired businesses I think the position has been that the company has had to pay far too much and not far too little. In fact the policy of the 1933 Act very largely broke down because of the fact that the cost of acquiring these licences proved so much greater than we had anticipated by reason of the awards of the arbitrator, and that the company was not able to complete the process without greatly depleting its resources. Under the 1933 Act compensation was determined not on the basis of past profits but on the basis of future losses which the licensee might suffer by reason of the transfer licence.
I think that was a more equitable basis than to attempt to assess compensation upon the basis of past profits particularly in regard to licences that may in future be acquired when one has to have regard to the abnormal experience of the emergency period. It will be appreciated that in most of these cases the company got very little value for its expenditure. It simply got the transfer of some ramshackle vehicles. Apart from property which is of little use, it succeeded in getting little more than the extinction of the licences; it did not even get the trade which the licensees had previously conducted, because when a licence was extinguished the individual concerned used the compensation money to buy himself a new lorry and set up as a wholesaler or in some other capacity and continued in the business that he had previously.
I have no patience with that sort of person.
Well, that is, in fact, what happened. The Transport Tribunal was concerned with the fact that the company actually had to pay too much in connection with the transferred licences instead of too little, and suggested that the compensation to be paid should be based on the, aggregate profits of the previous four years, but while that suggestion might have been considered a good suggestion in 1939, I doubt if it could now be considered to be a good suggestion in view of our war-time experience, and I still consider that the basis of the 1933 Act, which had to do with the future losses or expenses which the licensee might suffer, is still the best basis on which to go. It may be that, in the future, the company may have to pay more, as I already explained, but the position is that it is the large-scale operators on the road who are affected by this, and in the case of the comparatively small number of small operators, it may be that the company will decide not to interfere any further.
It is the small ones that I am interested in.
Will the Minister explain to the House exactly why these two differential dates are taken in, in the first sub-paragraph of sub-section (2). I could not quite understand why there is a dividing period like this. First of all, you take a period referring to any merchandise road transport business which was commenced after the 1st day of June, 1939, and before the 31st day of May, 1940, and then in the next sub-clause you come on to the whole period beginning on the 1st day of June, 1939, and ending on the date of the passing of the Act. I am referring to Section 114, sub-section (2), paragraph (a), clauses (i) and (ii).
In order to get a fair list of the people who would be entitled to an existing merchandise licence under the provisions of the Bill we had to go back to the period beginning with the commencement of the war, and that is what is provided for here; to see that each of the following shall be an existing merchandise road transport business: any merchandise road transport business which was commenced after 1st June, 1939, and before 31st May, 1940, and which was carried on in the manner required by the sub-section during the whole of the period beginning on the date of the commencement of the business and ending on the date of the passing of the Act; and, secondly, any merchandise road transport business which was carried on in the manner required during the whole of the period beginning on 1st June, 1939, and ending on the date of the passing of the Act. We give the licence to the existing carrier as well as to those who were in the business at the commencement of the war, but who, for reasons associated with the war, may have ceased to be in the business.
But it says, in the first clause: "any merchandise road transport business which was commenced after 1st June, 1939, and before 31st May, 1940, and ending on the date of the passing of this Act," and then, in the second clause it says: "during the whole period beginning on 1st June, 1939, and ending on the date of the passing of this Act." What additional case does this second clause give that is not covered by the first? It is only a matter of construction, I admit, but I am afraid that I cannot follow it, and there must be some reason for it.
I take the meaning to be that, first of all, the licence was applied for before the 1st June, 1939, and that after the 1st June, 1939, and before 31st May, 1940, the person concerned is entitled to a licence, if the business was carried on in the manner required during the period between the commencement of the business and the passing of the Act. Then, the second clause refers to any merchandise road transport business which was carried on in the manner required by the sub-section during the whole of the period. In other words, in order to carry on before the period, if a man had a licence before that date, that would be sufficient. I think that would explain it.
I do not think so.
I do not think so either. I think that the second is contained in the first.
No, I do not think so, because in the case of the first clause he applied for the licence after 1st June, 1939, whereas in the other case he carried on the business during the whole of the period beginning then, and therefore he must have had a licence before that date.
I think the differentiating word there is "commenced".
It would be easier if the Minister would consider the point between this and the Report Stage. There must be some reason for this.
I am afraid I cannot put my finger on the exact point at the moment, but the intention is that people who were engaged in this business before the war, and who had to cease because of war conditions, will not be deprived of a licence. It also affects other people, such as those who, as a result of war conditions, had to cease their ordinary activities, but who, in the meantime, may have become turf carriers, and so on, and who will not, on that account, become entitled to a licence.
Is there any provision for the case of a man in, say, Mayo?
This only applies to the exempted areas.
Take the case of a man in Ballina.
If he had been in the business before, and if it can be shown that he was in it, even though it was interrupted as a result of the war, he is still entitled to a licence.
You limit the date for making the application to the first day of April, 1945, assuming that the Act, comes into operation on 1st January, 1945. Supposing that a man wants to make an application, I do not think there is any provision here for giving notice or making it known to the people concerned, by publication in the newspapers or otherwise, that they have this right of application.
I think I can assure the Senator that all necessary steps will be taken to give the requisite notification to the parties concerned. As a matter of fact, it will not be so difficult now as it was formerly, because we now have a list of these people. When starting off, in 1933, we did not know how many of these people there were, but now we have a list of them, and there should be no difficulty in sending notification to them.
In the case of an exempted area, where the owner of a licence dies or is unable to carry on the business any longer, would the Minister give the licence to a fresh applicant?
In certain circumstances the licence may be transferred to the person who succeeds to the business.
But take the case of the owner of a licence who is not carrying on the business satisfactorily?
There could not be a new licence granted on that account.
Would the Minister give a new licence in that case?
No, a new licence could not be granted on that account.
Well, my point is that it would be a great hardship on many farmers. Let me give a case, which is quite common. Suppose that somebody, living within 12 or 14 miles of Dublin, wanted to bring a lorry-load of cattle, sheep or pigs into Dublin on the Monday morning previous to this date in 1939. We used to be able to get them in on a lorry for 12/6 a load, but if we have to go to the railway company, and if they have to send out two men—or even three men, as might be required by a regulation of the transport union—it would not pay half the wages of the men, not to mind paying for the lorry, in order to make any profit.
Anybody living within 12 or 14 miles of Dublin may get it into their heads to send a load of sheep or pigs to Dublin—it is not usual to send cattle in that way—and they would go to their nearest carrier and say: "We want you in the morning to bring a load into Dublin." That man would come at four o'clock in the morning and run three or four trips to Dublin and back between that and 12 o'clock. He works hard, but he is getting a fair living out of it. It would be a great imposition on the farmers within a 12 or 15 miles radius of one of the big centres if they had to apply to the railway company for such transport as that.
Do I misunderstand the position? Is not Dublin being left as an exempted area?
Yes.
And so far as a former exempted area is concerned, the Minister must give a licence to a person who carries on business there or whose predecessor in title carried it on.
But if such a person dies or has not been carrying on the business satisfactorily?
If this company cannot provide a better service than an independent operator provided in the past, then it will, in my opinion, have failed in the responsibility placed upon it. I do not say it will provide as cheap a service, because, of course, at one period transport facilities of that kind were sold at an entirely uneconomic cost, a cost which I am sure did not cover the actual expenses involved to the owner of the lorry, or provide anything like a reasonable wage to the operator of the lorry. But in so far as an independent operator was able to give an intimate, personal service, meeting the actual requirements of each individual customer, it should be possible for a public company such as this to give the same service if it has the right kind of organisation. It is not doing so at present, I agree, but the present service is restricted by lack of equipment and so on.
You would have to go in to the railway company and notify them before five or six o'clock in the evening, giving perhaps a couple of days' notice; whereas, in the other case, you could give notification at 10 o'clock at night in regard to the following morning.
Of course, the present service is restricted by abnormal conditions, and I think most of the persons concerned have realised that the private haulier was not carrying at a lower rate in the past out of love for the farmers. He is not charging a lower rate now; in fact, public transport is much cheaper.
I am afraid the only alternative will be for every farmer to get a lorry of his own.
Is it not a fact that the area to which the Senator is referring is not affected by the section at all? Dublin is an exempted area.
I should like to say in this connection that many people who engage in farming production have found the private service very much more flexible than the services supplied in the past by the railway company. The private lorry went into the farmyard for the wheat and beet, whereas the railway company required it put out on the roadside. On the return journey they stipulated that they will pick up the pulp on the roadside. I submit that pulp is a perishable article, and that that arrangement is hardly in keeping with what is right and proper in connection with a perishable article.
One of the difficulties, of course, in the whole Bill is the monopoly service. It is perfectly obvious to everybody that a small, private man who has got to produce a really good service—and when I say "service" I am not considering any question of charges—or go out of business altogether is going to have more personal concern in meeting the requirements of the people of his area than any large company can ever have. It is for that reason that I am very keen on trying to see, so far as we can, that at least the existing hauliers are retained in the areas where their business is largely one arising from personal contact with their customers.
Before we pass from Section 114, I want to refer to the fact that in sub-section (5) there is a definition of an exempted area. I do not see Galway mentioned in that sub-section. It was named as an exempted area in former Acts.
Galway is being left as an exempted area.
That is what I wanted to be sure of. It is not mentioned here.
The Minister has power under the previous section to extend the operation of any merchandise licence or grant a merchandise licence to any person if he thinks it advisable in the public interest to do so. That power appears to be taken from him in sub-section (2) of this section. If I am right in that contention—
No. The intention is to grant certain easements to enable the Minister to extend the classes of goods or the areas in which the licence may operate where it is desirable to do so for the removal of hardship, but he cannot do that in relation to a person who has a licence to carry one commodity only. In that case he can still carry one commodity only. But there were a number of cases where persons engaged in a general carrying business omitted to state some obvious class of goods that they previously carried, or made some error in prescribing the area in which they were going to operate. It is to give the Minister power to deal with cases of hardship of this kind that this provision is inserted. It is not intended to enable a person who has merely a licence to engage in the transportation of one kind of goods to go into the general carrying business.
What would happen in the case of a man who has a lorry operating between an auxiliary creamery and a general creamery?
He could only do that, and could not go into the general carrying business.
It seems to be a pity that a lorry like that could not, for instance, carry lime to that locality to fertilise the land and enable it to grow wheat. If it is done, of course, it will be done in an illegal way. I am afraid it will be done in an illegal way.
Of course, we are making it more difficult under this Act. The principle of the 1933 Act is being retained, except that we now know of cases where applicants made mistakes and suffered for those mistakes. I can remember a case of an applicant living on the borders of Roscommon and Galway who, through a misunderstanding, applied only for a licence to carry for hire in County Galway, whereas in fact half his business was in County Roscommon. This section enables the Minister to relieve him of the hardship caused through that misunderstanding. Other people who had carried bag-stuffs or commodities of that kind gave an inadequate description of the classes of goods concerned, and were precluded from carrying those they did not specify. We can modify a hardship of that kind. Apart from getting rid of anomalies, difficulties and hardships, we are not departing from the policy of the 1933 Act, and it would be a complete departure from the policy of that Act to allow a person who was engaged in a very limited business to extend the type of business in which he was engaged.
I should like to point out that transport in this country is of a seasonal type. There is a great deal of road transport required during the harvest period, and during the beet growing period for delivering beet to the factories, and I do not know whether or not the Minister would be agreeable to make the harvest period and the beet growing period what might be called an open period, without any restrictions whatever on any transport in any locality. It is very important to save the harvest, and consequently it is important to put all the road transport available into the saving of the harvest. The same applies to beet.
Certain easements have been given because of the emergency, but that would not be the policy in normal times.
I think it would be as well if the Minister would restate what he might do in any case where it is shown that the Transport Act does not provide adequate facilities. Where the Transport Act does not provide adequate facilities, has the Minister power to authorise other carriers to operate?
We can require the transport company to provide facilities and that would be the course normally adopted if the facilities required were of the type the transport company could provide. If the services needed were of a very special type in which a general transport organisation would not be interested—if they were of a purely local kind—and if the company, having been informed, intimated that they were not interested in providing the facilities, then an additional licence could be, and would be, given.
Under which section?
Under the 1933 Act.
I think that that should meet Senator O'Callaghan's point.
I do not think it does, He wants an open season during the harvest.
It might happen that, during that season, the transport company would not be willing to provide a service.
In normal times, I do not think that that is likely. At present, they might have a physical difficulty in doing so and that is why we released turf and, in certain respects, grain, from the restrictions of the 1933 Act. In normal times, that business would be catered for by the transport organisation or the merchants engaged in the business, who would be entitled to operate their own lorries for their own business. Ordinarily, we should contemplate that the traffic which would arise then and which would require to be carried on public services would be carried by this company. After all, it is the company's harvest as well as the farmer's harvest.
I want the Minister to confirm my belief as to what will be done under this section. Discretion is left with the Minister—quite properly. Would the Minister say that it is his intention, where classes of merchandise were wrongly described or where a wrong description was given of the areas, to amend the licence?
That would be the intention where they are wrongly described to the extent of producing hardship. If somebody with a lorry had it licensed for Galway, Mayo and Roscommon and sought to extend the licence to the whole of Ireland, we might say that he had not suffered any hardship and refuse his request.
Does the Minister hope to deal with the case of the carrier whose vehicle was acquired by the company in the past, who ceased to be a carrier and who has since acquired a new fleet of lorries?
We have a number of provisions in this Bill by which we hope to deal with cases of that kind. These provisions represent the experience both of the Department of Industry and Commerce and the Gárda Síochána in trying to enforce the 1933 Act.
Suppose an area had been a barley-growing area and that very little wheat was grown in it. If the position is now changed and wheat is grown, would the Minister extend the licence to cover wheat?
Normally, the classification would be "grain" or something of that sort.
I move amendment No. 59:—
In Part VII, immediately after Section 124 to insert the following new section:-
125.—Sub-section (2) of Section 25 of the Road Transport Act, 1933, is hereby amended by the insertion after sub-paragraph (i) of paragraph (a) and before sub-paragraph (ii) of the said paragraph of the following new sub-paragraph:—
(ii) in case such person has become entitled to such business by purchase and the Minister is satisfied that such person is a suitable person to carry on such business and that when so carried on by such person at least as satisfactory a service as is then in operation in such area will be operated, the Minister shall on the application of such person, transfer such licence to such person.
The purpose of this amendment is to deal with the provisions of Section 25 of the Road Transport Act, 1933. Under that Act, the Minister has a certain discretionary power to grant a transfer of a licence. More than inserting a mandatory section in the Bill, I should like to ascertain from the Minister the terms on which he is prepared to use that discretion. I want to make perfectly clear that I am entirely with the Minister if he uses his discretion in such a way as to prevent a man who has sold his business to the dissolved company or to Córas Iompair Eireann coming in and trying to get the benefit of the traffic as if he had never sold it. But supposing a man ran a business between Limerick and Cork and sold that business to Córas Iompair or the dissolved company. He might still have a liking for the road transport business and he might find a man whose business ran from Dundalk to Cavan. His purchase of that business could not possibly affect the good-will already sold to the company. Yet, I understand that, in such circumstances, the Minister is not prepared to grant a transfer. I suggest that it is better for him, as, of course, to grant a transfer where there is a sale of a road transport business—provided the statutory company does not want it—to a person already experienced in the business. That would mean a more efficient service. The users would get better service than they would get from a complete stranger to the business—always provided that the transferor, having sold his good-will, was not trying to cadge the good-will back.
The objection I have to that is: when looking for compensation one of the points raised is whether a man is put completely out of business and cannot engage in that business again. I raised that point once and the compensation was increased by the arbitrator substantially.
Under the 1933 Act, the Minister is required to transfer a licence, on application, to a relative the statutory company or a beneficiary under a will. In all other cases, he has complete discretion. In fact, that discretion has rarely been exercised. I think that it would be wrong to require the Minister automatically to transfer the licence to a purchaser. It might mean considerable inflation of the value of the business.
We can imagine a small, unimportant business, operated with very limited or defective equipment in some town, being purchased by the largest trader in the town and built up into a highly remunerative concern, attracting a great deal of traffic and necessitating compulsory acquisition by the railway company at a considerably inflated cost. This matter was raised by the Licensed Haulage Contractors' Association, and I intimated to them that I should be prepared to consider favourably applications for transfers of licences, on acquisition of businesses, if the railway company concerned was not prepared to acquire the licence, if the licensee had no relative able and willing to accept the transfer, and subject to the production of satisfactory evidence that the proposed transferee was a suitable person to operate the service and was not himself already the holder of a merchandise transport licence. The latter provision is necessary to ensure that no person can proceed, by the process of buying up licences, to establish a multiple road transport business in substitution for a number of individual businesses carried on with single lorries.
I subsequently pointed out to the Licensed Haulage Contractors' Association that these considerations which I laid down, did not preclude the exercise of discretion in cases where the facts were such as to justify the use of that discretion to permit of the transfer of a licence. The principle is, therefore, that a licence must be transferred to a relative, to a beneficiary under a will, or, of course, to a railway company acquiring the licence. It may be transferred to another person who has bought the business if there is no relative, if the railway company are not willing to acquire the licence, and if the proposed transferee is in every respect suitable to hold a licence and is not already the holder of a licence.
Over and above all that, there is a discretion which has been exercised only in two or three cases, cases of particular hardship, where it was obviously in the interest of justice that the licensee should be allowed to sell his licence. Apart from these considerations, the policy will be the same as that in the 1933 Act—that the licence will not be transferred on purchase except in very limited circumstances.
That is my point. I do not see why a licence should not be transferred on purchase, always subject to the provision, like that in the Intoxicating Liquor Acts, that the man taking over the licence is suitable and is going to carry it on in a proper manner. The whole purpose of the 1933 Act is the same as the Intoxicating Liquor Act of 1902—that there were enough licences and no room for any more. That was the whole purpose of the 1902 Act, and I am entirely in agreement with the Minister that we should not have circumstances arising by which the values of licences could be inflated. But, it does seem to me the matter should be dealt with a little more flexibly. The Minister has the discretion but he is not going to use it. I submit that the matter should be dealt with on the same lines as the Intoxicating Liquor Act, that if a man is suitable and is going to carry on a good business for the users he should be allowed to acquire the licence. I am not going to say, automatically, but I submit that the Minister in exercise of his powers should assure the country that where a man is suitable to take over a licence, he would be granted the transfer.
The Senator will see that that would be unfair to the company. One can imagine the conditions in a provincial town where there are two transport licences, one held by an energetic hard-working individual who has built up a profitable connection, and the other held by a thriftless individual working with decrepit equipment, the value of whose business in relation to earning capacity would be very low. If the company buy out the energetic individual who has got the bulk of the business in any event, it can contemplate acquiring the remaining business at a lower value, but if the first licensee whose business has been acquired by the company can purchase the second licence and resume his business, the purpose of the Act is defeated.
I quite see the Minister's point that the second licensee would be trying to take back the goodwill which he had sold to the company. In acquiring the second licence he would obviously be trying to pull back some of the business he had lost. I am with the Minister in that.
Of course there is also the consideration of the individual who has bought a number of businesses and established himself in a substantial way, but to make a comparison with the Intoxicating Liquor Acts is wrong. The State is concerned to limit the number of licences, but it is also concerned with the maintenance of the number. It does not want to see businesses disappearing, because there are other considerations of public policy involved. In the case of transport these considerations do not arise.
There are provisions in the law for extinguishing licences.
Yes, but if it went too far, the Minister for Finance might get perturbed.
Perhaps more than the Minister for Finance might get perturbed.
The policy of acquiring road transport licences has not been fully implemented mainly because of the abnormal cost which the company had to bear in carrying out its policy, and also because in a number of places the nature of the business was such that the company was not interested, but if anybody else acquired a licence, and developed the business, then the company might be forced to acquire the licence even at a substantial price. That is why we have confined the transfer of the licence to beneficiaries under a will or to a relative, or in the very limited number of cases where the Minister, in the exercise of his discretion, felt it was the fairest course to adopt.
This is really tied up with compensation for acquisition, and what I would like to suggest to the Minister is that, where he was satisfied that there was a genuine offer made for a business, Córas Iompair Eireann must give the amount of the genuine offer, but it would be a practical impossibility to work that out in practice, because it would be quite impossible ever to satisfy anybody beyond yea or nay that a certain offer was genuine. You would get fake offers put in for the purpose of inflating the price.
The company could go to arbitration in any event.
I was thinking that the arbitrator must give the price offered by the genuine bidder.
The position, as I have explained, is that the licence may be transferred to the company if there is no relative, or if there is no hardship of the kind I have already mentioned.
I thought that this would ensure that in genuine cases he will get fair compensation and in fake cases he would get cut out.
On the First Schedule, has the Minister ascertained how the seal of Córas Iompair Eireann is going to be affixed? It might necessitate the repeal of some section of the 1845 Act.
I have not looked into that.
First Schedule agreed to.
Second Schedule agreed to.
I move amendment No. 60:—
In Part I, page 60, to delete in the fourth column, opposite Reference No. 1 the figure 100, and substitute therefor the figure 75; opposite Reference No. 2 the figure 50, and substitute therefor the figure 25.
I have put down two other amendments, Nos. 61 and 62:-
In Part I, page 61, to delete the figure 100 now appearing in the fourth column opposite Reference Nos. 5, 6, 7, 8 and 9 and substitute therefor the figure 75.
In Part II of the Third Schedule, page 61, opposite Reference No. 1, to delete the figure 145 in the fourth column and substitute therefor the figure 113; and opposite Reference No. 2, to delete the figure 145 in the fourth column and substitute therefor the figure 100.
I take it that the three amendments may be discussed together. What is aimed at here is to curcail the compensation provided for the holders of stock surrendered to the new company and substituted by the stock of that company. Actually, what is proposed is that the compensation by way of substitute stock will be reduced by 25 per cent. The matter of the value of the property that is being transferred has been considered during the last two or three days in this debate. I think the Minister himself recognises that it is difficult to say whether some of the property has much value for the purpose of a new concern.
The committee which was appointed by the Labour Party and the Trade Union Congress last year made a very close examination of the stock exchange quotations for the Great Southern Railways stocks and the Dublin Transport stocks during the period that elapsed from the time the Act of 1933 came into force until the end of last year. They found that in that period of ten years the ordinary stock of the Dublin United Transport Company was at one period quoted at 7/6 and the ordinary stock of the Great Southern Railways was quoted as low as £3 10s. The price to-day of the ordinary stock is 27/6 in the case of the Dublin United Transport Company and the price of the ordinary stock of the Great Southern Railway is around £60.
The effect of the proposals contained in the three amendments now before the House would be to reduce the obligations transferred to the new company from £13,500,000 to £8,250,000 representing a saving of £75,000 a year in dividends and interest. At this stage of the proceedings I imagine it is futile to spend much time in elaborating the different proposals. The Minister and the Government are committed to certain arrangements proposed to the directors of both companies and I imagine that they will regard these arrangements as an essential part of this measure. If that is so, I do not imagine we can secure the Minister's acquiescence for the proposals made here, but I think the proposal to pay £13,500,000 to the debenture shareholders of these two concerns is entirely extravagant in the circumstances.
I do not see why the Senator who has just spoken should not suggest that the shareholders' interest should be wiped out altogether. If you confiscate £20,000,000 worth of shareholding interest in a company there is no objection to confiscating the other £10,000,000. I would like to remind the House that some 22 years ago there was a railway inquiry which submitted a report to the Government, a report which was signed by a distinguished Labour leader who was a colleague of our friend on the right. That report recommended that the State should nationalise the Irish railway system and that the shareholders and stockholders should receive compensation in the form of Government stock on the basis of the then stock exchange value of railway stocks and shares which was said to be £25,000,000 to £30,000,000. I think the Labour Senator and his colleague should congratulate themselves that that particular Labour policy of acquiring the railways for £25,000,000 or £30,000,000 of Government stock 22 years ago was not carried out. They should be extremely thankful that they are getting the railways now in the form of a virtually nationalised company for a mere fraction of the sum which would have had to be paid then by the taxpayer.
I would like to point out that the Senator has omitted one important consideration in telling us what was done in 1922. In 1922 the commission to which he referred was dealing with a concern having valuable assets. That concern is now 22 years older, and its assets have very largely been dissipated. The Minister told us a while ago that the Department was obliged to close down a railway line between Galway and Clifden because it was too dangerous to run railway engines on it. That is the kind of concern that is being handed over now for £13,500,000. It is conceivable that the concern which was under review in 1922 was worth the money; in other words, you were getting valuable assets. The whole history of transport has changed apart from the deterioration of the assets. It is questionable whether much of the assets there are of much use. If, for instance, Córas Iompair Eireann were to decide that it is unwise to continue the use of the railway between Dublin and Bray or Dublin and Dun Laoghaire, then that system would be abandoned even if it was first-class stock. Even if the engines and rolling stock were first class, which of course, they are not, they would still be scrapped.
One of the things that most people who come to this country have to say is that the poorest type of railway equipment awaits the boats at Dun Laoghaire. There you find old carriages in bad condition, never cleaned, so far as one can judge. That is the kind of equipment used on that section of the railway between Westland Row and Dun Laoghaire. I think Senator Johnston should have taken into account the important change that has come about in the history of the transport system during the past 22 years. The question of writing down stock or of confiscating shareholders' property is not new, and it is not entirely a prerogative of Government. I remember the rumpus that was caused in this country some years ago when the directors of Dunlop's wrote away 13/4 out of every pound of stock. Two-thirds of the shareholders' property was written away at the time, and a number of important people in Dublin formed a shareholders' protection association to protect themselves against the ruthless confiscation practised against them by the directors of the company. There is a case where £13,500,000 of the shareholders' property was written off by the shareholders' directors, so we see it is not merely a prerogative of Government to write down stock or to confiscate it if the Senator prefers that phrase.
The Labour Party had at least some responsibility for the dissipation of the assets of the Great Southern Railways though I am not pretending that they were the only confiscators of the stock. There were other interests which battened on the vitals of the old railway company. Surely the Senator is not trying to make a case that because Labour policy and other factors as well have succeeded in making the railway company a poor concern that, therefore, they should give it poor compensation, having, themselves, been the principal cause of its impoverishment.
The real moral of Senator Johnston's observations is that in 1922 neither the railway company, the stockholders nor the Labour Party fully appreciated that the railways were not worth what the stocks were quoted on the market. None of them was able to see the writing on the wall. Whether we had an amalgamated concern or a number of separate and individual concerns, the history of transport in this country, in the ensuing years, would not be much different. A great part of the capital invested in the railways has been lost. The property of the stockholders was lost, railway lines closed down and assets which had been previously earning revenue proved to be a liability. The change that took place in the capital construction of the company is merely an illustration of the changes which took place throughout these years. It would be an impossible burden to put on the company to ask them to earn out of the remaining assets sufficient to make provision for the capital that has been lost. If we determine that these assets are to be valued upon the basis of the revenue they can earn, I do not think so. If we determine the value of what it would cost to replace them, those that one would replace, I do not think so. If you can determine them on another basis you might possibly say that we are overvaluing them, but I do not think that is important.
It is important that the proposals for the substitution of stock contained in this Bill have been agreed to by the shareholders. I think it was desirable to get the agreement of the shareholders. There are a variety of reasons for that, not merely the co-operation which was subsequently forthcoming in the preparation of the Bill and the putting of the Bill into operation, but also the general effect upon the credit of the country. I think it would be wrong now for the Legislature to alter the terms which were agreed upon. I do not think these terms unduly generous. The shareholders, it is true, are possibly getting somewhat better terms than an arbitrator would have given them. We gave somewhat better terms in order to get their agreement and I think the getting of that agreement was worth the better terms. Senator Duffy, I think, is wrong in assuming that the inflation in the stock market quotations for Great Southern Railways shares which took place this year as compared with last year was due entirely to the provisions of this Bill.
I think it would be wrong to leave out of account the satisfactory financial results of last year's working. I think, even if this Bill had never been produced, the improvement in the revenue position shown as a result of last year's working, the payment for the first time over a long number of years of a dividend on the ordinary shares and the wiping out of arrears of dividends on the guaranteed shares, would have undoubtedly resulted in substantial improvements in the price of these shares on the stock market. Therefore the determination of the amount of substituted debenture stock to be given in exchange for the cancelled stock of the amalgamated companies upon the basis of last year as compared with this year would, I think, be unfair.
I could imagine a shareholder of the Great Southern Railways Company contending that the affairs of that company were in bad shape because of the deficiencies of its management and urging that the company were entitled to the opportunity of themselves repairing the management and getting the benefits of improved management without the Government intervening in the manner which is proposed in this Bill. One could argue, on the other hand, that the country had waited long enough for that shareholder to exert himself to effect the improved management he talked about, but it could be argued by the shareholder that the knowledge of the condition of the company would have produced sufficient stimulus in these shareholders themselves to put the affairs of the company in order just as the shareholders of the Dublin United Transport Company had done previously.
Would the shares have appreciated if the company had not been given this monopoly?
Of course, we are not giving the company any greater monopoly than it had already. The decision to establish public transport on a monopoly basis was taken 11 years ago. This company will have no greater monopoly in the area in which it will operate than it had before this Bill was introduced nor will the Dublin United Transport Company.
But you tie up the alleged wholesaler who utilised the compensation to support rival companies.
In that respect we are merely doing what we intended to do in 1933. People found ways to evade the 1933 Act, and we would have been obliged to produce proposals for amended legislation even if we had not decided upon a plan of general reorganisation of transport. However, I think that has been sufficiently discussed in the past few months to enable most Senators to make up their minds without listening to further argument. We propose these terms for the substitution of stock. We proposed them to the shareholders of each company, and notwithstanding some opposition we got a substantial majority to agree to them. On the basis of that agreement, we are putting them into this Bill, and we could not depart from them now without dropping the measure as a whole.
I move amendment No. 63:—
In paragraph (c), page 64, line 23, after the word "suspended" to insert the words and brackets "or (being a person in the service of the company on the critical date) was dismissed".
This is a paragraph which I think gave a good deal of concern to the Minister and to others in the Dáil. It deals with the period which has to be reckoned in certain cases as pensionable service. Paragraph (c) of the Schedule says: "If that person was suspended from the service of a former transport undertaker on or after the 1st day of April, 1916, and before the 6th day of December, 1921, and the Minister certifies that his suspension was due to his national sympathies, the period of suspension shall be included in the period of his pensionable service." It was pointed out to the Minister in the Dáil that these men were, in fact, dismissed. I have been making inquiries and I am informed that the men who are likely to be affected by the provision were, in fact, not suspended, but dismissed. The Minister agreed with that view and, said that if a form of words could be found which was not too difficult and did not require too much elaboration, he was willing to make provision for the inclusion of that period in the calculation of pensionable service. I do not know whether I have succeeded in getting the form of words for which the Minister expressed a desire in the Dáil. I am trying to make it clear that the person concerned must have been reinstated in his position, and that he was actually in the service of the dissolved companies on the critical date, which in this case is the 1st July, 1944, and I am proposing to insert the words "suspended or dismissed." I do not think the Minister will have much difficulty in accepting the amendment.
There are difficulties. I tried to get over these difficulties in a simple way, namely, by giving the Dáil the assurance that in any case that arose where a person had been dismissed and reinstated, where he was dismissed by reason of his national sympathies and was reinstated at the earliest time at which the objection to his national sympathies ceased to operate, I would take it up with the railway company and ensure that that period during which he was absent from the company's service would be regarded as service with the company for the purpose of calculating the compensation payable under the Bill. I do not think that merely using the word "dismissed" without putting any time limit would get over the difficulty. A person may have been dismissed from the company's service and he may not have rejoined the company's service because he did not want to, because he had other employment of a more profitable kind, in which he remained so long as it lasted, and subsequently rejoined the company's services only when that employment terminated.
But the Minister, I take it, would not give a certificate in that case?
I could not refuse to give a certificate because he was dismissed on account of his national sympathies, but the question of the date on which he again went into employment with the company might be difficult. There is the question of whether the whole of the time during which he was absent from the company's service was due to his national sympathies. This matter came up in the Dáil, as I have said, and the Dáil was satisfied, and I think this House should be satisfied, that if such a case should arise, I personally will undertake to raise the matter with the company so as to ensure that full provision will be made for such an individual in respect of the period during which he was out of employment by reason of his national sympathies. I think that paragraph (d) will give me sufficient power to approach the company in that regard. However, I think it is a very remote possibility that such a case would arise, but if such a case should arise, I think the House can take it that my assurance is a better guarantee than anything that you can get into the Bill.
I am quite satisfied with the Minister's statement of his intentions, but there is a period referred to here, and that is the period between the 1st April, 1916, and 6th December, 1921, and paragraph (c) says that if the person concerned were suspended from the company between those dates, and if the Minister certifies that his suspension was due to his national sympathies, the period of suspension shall be included in the period of his pensionable service. I am wondering what would be the legal construction if the company were to meet such a case by saying that the man was not suspended, that he was dismissed.
What I would say to the company in that case is that if the man's dismissal was due to his national sympathies, and if he rejoined the service of the company as soon as his national sympathies ceased to be an objection to the company, they should arrange to give him that whole period for service and pensionable purposes. I do not think that I shall have any difficulty in arranging that with the company if such cases should arise, but obviously, it would be very difficult to frame a section or sub-section to meet such a case.
I am quite satisfied as to the Minister's intentions, but if the legal advisers of the company say that it would be unlawful to take this period into account, since the person concerned was not suspended but actually dismissed, what would be the position then?
It is merely a matter of wording. I know that I went to the railway company in 1924 and said, in effect: "What about taking all these people back?" They agreed to do so, but there was a difficulty in one or two individual cases here and there. Eventually, they were all taken back, but if my recollection is correct, they were taken back as new entrants. Certainly, the people in whom I was interested got no credit for their absence, and it is to remedy that situation that we have this clause here.
In connection with the Civil War, there were two angles to this question. Some of these people went into the National Army, while others of them took the other side. Those who went into the National Army went back to the company's service with their period of absence counting for pensionable purposes, retirement benefits, and so on, whereas those who went back to the company's service from the other side did get that period of absense counted as service with the company for pensionable purposes. That is what we are trying to deal with here, that those who were absent from the service of the company as a result of their national sympathies for a given time, from 1916 onwards, should have that period counted as service with the company for the purpose of determining pensionable rights, and so on.
I am quite satisfied, but the only anxiety I have is that the company's legal advisers may think that it is unlawful.
What we are concerned with here is to see that they must not pay less than they should.
Is the Minsiter quite aware that there is no provision in the superannuation scheme that they cannot pay more?
There is nothing to prevent their paying more. There is nothing which says that they cannot pay more.
I take it that what is in the Schedule is the minimum?
Yes.
I move amendment No. 64:-
In page 64, before line 55, to insert the following new paragraph:—
( ) If, with the consent of the company, that person was temporarily absent from his employment for the purpose of performing functions of a public character, such temporary absence shall be included in the period of his pensionable service.
This is my last amendment. It affects a small group of people, and I want to preface my remarks by saying that the amendment has not been submitted at the request of the persons concerned, and I have not discussed it with them. I did mention to one of the persons concerned that this matter had come to my notice in connection with other matters, and that I thought it wise to include in this Bill the cases of these three people. There are only three people concerned, one of whom is a friend of the Minister, and two of whom are friends of mine, and all are members of the Legislature. I do not know whether the period of absence in such a case will be taken into consideration.
I do not think the case is likely to arise. I considered this fully, and I would have put it in if I thought that it would be of use to the individuals concerned, but I do not think it would be. If these individuals take up public duties which make it impossible for them to continue in the company's service, I suppose it may be presumed that they will go back to the company's service if they cease to perform these public duties, but they are not paid by the company in the meantime.
They are on the pay-sheet.
yes, but they are not paid. What we are considering here is the case of persons whose employment is abolished, but the company will not abolish offices if they would be liable to pay pensions to people holding that office but not actually in receipt of pay. I would say that the people whose offices would not be abolished are people where the company has not to pay them anything at all now. However, this concerns only the abolition of an office because of the amalgamation, and it does not affect the rights of these people to pensions.
I realise that it is entirely problematical, but I have in mind one particular case where an individual has held a particular kind of office for a period of years, and I assume, although I do not know, that there is a corresponding office in the other absorbed company. Now, the two offices will not be continued. One will be abolished. That, I think, is pretty clear, and in that case one of two people will be entitled to compensation. Let us assume that the office held by the person I have in mind is abolished, rather than the corresponding office in the other company; if he wants to resume work, and if his office is abolished in the meantime, that clearly is a case which comes under the Bill.
Yes, but the company cannot say that the office is going to be abolished in five, six or eight years' time. In fact, if the company wants to say that the office was redundant in 1945, then the provisions begin to operate, but this contingency was so improbable that I did not consider it necessary to legislate in respect of it. The Senator will understand that there is a certain hesitation in proposing legislation of this kind which will affect, personally, members of the Oireachtas. If I felt that there would be a possibility, of injustice, I would have introduced an amendment to deal with persons loaned, so to speak, to the public service. I think, therefore, that they would not in fact benefit from the provision, and in that case it is better not to have the provision.
Is there any reason why the charges mentioned in the Tenth Schedule should not be set out in full rather than in this manner? I take it that those charges are actually spread over various documents which are not available to everybody?
The Senator will understand that all those old provisions in relation to canal charges are being abolished, and that we are proposing to substitute a new schedule of maximum charges.
It is an Order which was confirmed by the Canal Rates, Tolls and Charges, No. 11 (Grand Canal) Order, Confirmation Act, 1894.
Those charges are to continue until the new schedule of maximum charges is prepared. The present system of determining canal charges is only understandable by a few individuals who are in control of it. What we are providing here is that those charges will continue to be in force until there has been prepared a new schedule of maximum charges which will become operative when the Minister makes an Order to that effect.
Is it expected that the schedule will be ready at an early date?
Well, I do not know how long it will take. The sooner it is done the better.