Customs (Amendment) Bill, 1945—Second Stage.

Question proposed: "That the Bill be now read a Second Time."

The provisions of this Bill are, in the main, designed to furnish the State with powers adequate to deal with a problem which has, of recent years, become one of urgent importance, namely, the prevention of the illegal exportation or attempted exportation of goods which are the subject of any export prohibition. For goods imported irregularly, whether so imported with intent to evade payment of duty or to evade some import prohibition or restriction, a comprehensive and detailed code has for a long time existed. It is to be found in the appropriate provisions of the Customs Consolidation Act, 1876, as amended by later Acts. No such detailed provision, however, existed as regards goods subject to export prohibition, as at the time that the Act was passed prohibitions of this nature were practically non-existent. From time to time, however, starting with the Dangerous Drugs Act, 1920, such prohibitions began to appear, and an attempt to provide the legal machinery requisite for State control was made in each case by the adaptation to export procedure of certain import provisions. The powers so provided were naturally limited in scope, and it was not until the passing of the Scrap Iron (Control of Export) Act, 1938, that more extended powers were taken. Cases of irregular exportation were then beginning to arise with a certain regularity, but they were few in number and no practical difficulty arose until the wide range of export prohibitions imposed as the result of emergency conditions made the matter one of major importance.

Prohibitions so imposed are as a rule based on Emergency Powers Orders made under Article 31 of the Emergency Powers Order, 1939, which enables a Minister to provide by Order for regulating, restricting or prohibiting the importation or exportation of any article. While the Emergency Powers Act, 1939, prescribes penalties for breaches of such Orders and provides for forfeiture by Order of Court of any goods involved, the procedure thus made available was not sufficient to provide the State with such powers as Revenue practice requires for adequate control. To remedy this defect the penal procedure provided by the Scrap Iron (Control of Export) Act, 1938, was, by Emergency Powers (No. 52) Order, 1940, made applicable to any goods being or attempted to be exported in contravention of an Order made under Article 31 of the Emergency Powers Order, 1939. Accordingly, in such cases, proceedings, whether for penalties or for seizure of the goods, are based on the Act of 1938, as applied by Emergency Powers (No. 52) Order, 1940.

This adaptation of customs law was at best an emergency device to meet a pressing need. It has not been found unsatisfactory in practice, but it remains merely an adaptation, and there is a clear and urgent necessity for direct and detailed provisions to meet the various difficulties which the experience of the past few years has revealed for the first time, and which have increased in proportion to the constant attempts to evade the many export prohibitions which it has been found necessary to impose. It was originally intended that this Bill should form a permanent legal code relating to procedure, penalties and seizure in the case of export goods, but in deference to the wishes of the Opposition Parties it has been agreed that the Bill should, in the first instance at least, be temporary in effect, and it is now provided that it shall continue in force until 31st March, 1950, and then expire.

The general nature of the Bill will make its provisions applicable to any goods which are at present or may be hereafter prohibited, and the powers sought are, in the main, the counterpart of the powers conferred on the Revenue Commissioners in the case of import smuggling. In particular, this applies to the provisions which shift the onus of proof to the defendant and which require certain persons to give all relevant information which is in their possession or knowledge. These correspond to the powers given by Section 20 of the Finance Act, 1936, in the case of evasion of duty or evasion of import prohibitions. It may be added that the principle that the onus of proof should be on the defendant is a well-established feature of customs law—it can be traced back at least as far as 1827.

It was found necessary, after the introduction of the Bill, to insert two amendments, viz: Clauses 9 and 10. The position as regards Clause 9 is this: Under Section 8 of the Courts of Justice Act, 1924, an appeal lies by both parties from a decision of a Justice of the District Court in all cases other than criminal. In the latter type of case an appeal lies only by the person against whom the Order of Court shall have been made. In the case of O Croinin v. Brennan (1939) I.R. 274, the High Court held that in a case which was concerned with evasion of customs duty the proceedings were civil in nature, and, accordingly, it seems clear that in customs cases which relate to non-payment of duty such an appeal lies. In a recent case— The State (Francis Gettins) v. Circuit Court Judge, North Western Circuit— the Supreme Court has in effect held that a breach of prohibition imposed by Emergency Powers Order is a criminal matter, and that in such cases the State has no right of appeal. There is a third type of case, namely, breach of prohibitions imposed otherwise than by Emergency Powers Order. In this case, there is some doubt whether an appeal by the State does or does not lie.

All these three types of cases, whether relating to evasion of customs duty, to a prohibition imposed under an ordinary statute, or to a prohibition arising out of the emergency code, and whether civil or criminal in essence, are subject to the same administrative procedure, namely, search, seizure, detention or charge of the person, and prosecution. It would be illogical that where a dismiss is given in the District Court the procedure would take different ways so that the State would have the right of appeal in some cases but not in others, and it is considered that this procedure should be unified as well, beyond dispute. Such a unified procedure exists in the law relating to excise, as under Section 82 of the Excise Management Act, 1827, there is a general right of appeal from the District Court. In this respect, therefore, the clause merely assimilates customs procedure generally to that which has long obtained in all excise prosecutions.

Clause 10 is designed to facilitate references by way of case stated from the Circuit Court to the Supreme Court by making it competent for either side to apply therefor, instead of, as hitherto, making such application dependent on the consent of all parties. Customs law is in many instances intricate—its operation is far-reaching in effect, and it is desirable that no facility for its proper elucidation should be hindered or withheld.

Opportunity has also been taken to effect some improvements and to supplement some deficiencies in the existing law. Thus, a general provision has been made bringing goods prohibited to be imported within the terms of Section 42 of the Customs Consolidation Act, 1876, which enumerates a list of prohibited imports. The effect will be that the mere fact of prohibition will automatically apply the existing provisions dealing with irregular imports to any goods at present prohibited or which may hereafter be prohibited. This will make for simplicity of drafting in future legislation. Again, in the case of certain goods, weight per given superficial area is a determining factor in deciding liability to duty or the application of the Control of Imports Acts. Ordinarily, no difficulty arises, but it is felt necessary that in cases of dispute there should be the power to make regulations prescribing the method by which weight is to be ascertained in any particular case.

There are also a few minor points which are largely matters of form.

I think that we all have every sympathy with the Minister in his endeavour to defeat smuggling, and that we have every sympathy with the Revenue Commissioners in their endeavour to collect all the taxes that have been legally and properly imposed, but it must be remembered that there is a general tendency to give more and more power to the State and its officers, and that legislation, regulations, Orders, and so on, tend to weigh more and more heavily on the individual citizen.

This Bill, as the Minister stated, replaces an Emergency Order. It differs, I think, in two respects, however, from the Bill which was brought into the Dáil. As has been pointed out, it has now been made a temporary measure, valid until 1950. That is to say, the Minister will give it a run for five years in order to see what will happen under it, and I think that it will be generally admitted that we would be in a better position to discuss it after having seen it run for a certain number of years. Another difference is the insertion of Section 9 in the Bill. Section 9, on the face of it, seems to provide for a very drastic change in the ordinary criminal law, that is to say, that where a man is arrested on a charge of this kind and acquitted by a District Court, the State can appeal against that decision—not to ask to have a case stated, but the State can take the accused to another court and have a second effort at trying to prove him guilty of the offence with which he was charged. Now, those powers are very drastic, and in spite of the Minister's statement that similar powers existed previously, it is quite obvious that the powers which existed formerly were not the same as these powers, because, otherwise, the Minister would not want the Bill at all.

The Minister, however, has very skilfully glossed over the really important thing in this Bill, and that is that it gives to principles which may have been already in the law a very wide and drastic scope. It extends very much the principle, which was very much restricted before this Bill was introduced, that in connection with violations of the customs code, a person is deemed to be guilty until he can prove himself innocent. That is a very bad principle, but it is all over this Bill. Now, there are very elaborate provisions in this and other Customs Bills to catch the culprit. Nobody objects to that. Nobody would object to the taking of all possible precautions to catch the culprit, but we should be very careful that in endeavouring to catch the culprit we do not catch innocent people and cause trouble, worry and expense, to innocent people, and I think this Bill is bound to do that.

Let us take this Bill in connection with other measures that have been introduced. We have had a case recently where a decision got by a litigant in the court was taken from the successful litigant by means of a very elaborate, detailed and careful section introduced into a Bill, whereby a Parliamentary majority took from a litigant the right which he had. We also had a case last year, in connection with the Finance Act, where the Minister took power to deal with people who were getting away with certain things in connection with the excess profits tax. I think the Minister himself said that he was not quite sure how it would work out, but that the object was to catch those culprits and that it would take some time to find out how it would work. We all want to catch such people, but my point is that such powers can be used against perfectly innocent people. The Minister, on that occasion, expressed the view that he would be better able to tell the House what he thought about it after a few years' experience of its operation, although he admitted that the power then sought was very drastic. This seems to me to be very drastic also. It might be a matter of very great difficulty for one to prove one's innocence in a case such as is envisaged here, but the position we seem to be getting into is that certain principles of law are acknowledged as between citizen and citizen, but not where the State is concerned; in other words, as between two citizens, the principle is acknowledged, but that when an individual finds himself prosecuted by the State for an infringement of Orders made by the State, he is placed upon a different basis and has to prove his innocence. That is to say, if you are arrested and tried, whether guilty or not, for any offence against the customs code, there is going to be a presumption, as against the ordinary law, that you are guilty until you can prove yourself innocent.

We can examine that matter later on, however, but it seems to me that there is no limit to the meaning of the word "prior" as used in this Bill. The word "prior", to such-and-such a date, is frequently used in the Bill. Does that mean that in the case of goods found in Clones in June, 1944, and found in my house in June, 1942, I would have to prove that I was not concerned in illegal exportations? It seems to me that that is what is meant by the word "prior" in the Bill.

Now, like the Minister himself, I am a Dublin man and I have absolutely no interest in smuggling, and I have every desire that the Revenue Commissioners will be able to catch every individual who engages in smuggling. I have every sympathy with the Revenue Commissioners in that, because I am not a shopkeeper or an industrialist, am not likely to be tempted to engage in smuggling, and all my undertakings are over and above board; and so I cannot quarrel with the Revenue Commissioners. But I do feel and I know that the Revenue Commissioners are anxious to do their job. But people who are anxious to do their job are very apt to be put in blinkers. They want to make the doing of the job something much more important than the observance of any set of principles. One defence made in the Dáil was that this Bill was being passed by a majority. I should like just to say on that question that democracy will not work at all unless a majority recognises that there are certain things which ought not to be done. That is a fundamental point, that certain things which ought not to be done, and that the majority itself is not necessarily right. Parliamentary Government works on a certain set of conventions. One of the most important of these is that there are certain things Parliament will not do.

In this country we have adopted British law because, in the first place, I think we could not have done anything else, and, in the second place— apart from the then political conditions in this country—it is quite good law and it has good, sound principles. It has given to the ordinary citizen a considerable degree of liberty. Our tendency in legislation of this kind all along has been to restrict the individual's liberty, and to go farther than the British in restricting liberty. I think this Bill goes farther than any British Customs Act. I wonder whether, even since the war, anything so drastic as this has been introduced in England. I suspect not. I can be told that they have not any land frontier. That is true. But our position really is that, in order to govern ourselves, we have come to the conclusion that we must be more drastic than many other peoples. It may very well be that this is necessary. I am striking a general note. In every single instance where this kind of legislation is brought in, a good case can be made. But the cumulative effect of the instances and of the legislation is that we find ourselves transgressing certain principles and getting into a position in which more and more the individual citizen is engaged in a very unequal combat with all the forces of the State—prosecutors, commissioners, officials, and so on, of all kinds.

The tendency is natural for all Ministers—it is not peculiar to a particular set of Ministers—to take the short cut, to say: "This is a bad state of affairs; our regulations are being evaded and we will take the most drastic steps to stop the evasion." That is what is being done in this Bill. That is something which I feel we should object to and something which the House as a House should be very careful about, because if we have any function at all, any use at all, it is to see that, while the law is observed, the individual citizen should get fair play in the courts. More and more the courts are being ousted. We really should go right over to the French position and say that we will have a special administrative law for dealing with certain kinds of offences. What we are doing is, instead of establishing a special set of courts to deal with these offences, really ruining, to a certain extent, the ordinary courts, imposing a minimum penalty or prescribing, as is prescribed here, that a man who is tried once and acquitted may be tried immediately again. It is quite obvious to everybody that the ordinary individual who has to go through the courts and is tried in a District Court and acquitted is in a much worse position when he goes to another court. It does not mean anything to the State. The State has any amount of money and any amount of machinery, but he is in a different position. It may be said that one has sympathy with the wrongdoer. I have no sympathy with the wrongdoer, but I have great sympathy with the rights of the citizen.

In the two respects I mentioned, namely, that it places so emphatically, with such elaborate care, and in such enormous detail the onus on the individual to prove that he is innocent or else he will be deemed guilty, and the other, that in the case where, having been acquitted of a criminal offence, it gives an appeal against you, the rights of the citizen, who is not a criminal, who is not a rogue, and who has not contravened the code, are being very seriously interfered with by this Bill. Of course, the defence will be—it is not in the last 12 years I have heard it; I have heard it for the last 20 years—that the administration will be just, that this will never happen. There is always the danger that it will happen. There is always the danger —it is increasing every day—that under the forms of Parliament and by the operation of measures such as this you will get into exactly the position of a citizen in a totalitarian State who has no remedy at all against his masters. It is for that reason that I make these remarks this evening. I do not begrudge the Minister the Bill; I do not begrudge him the ample powers sought; but I do think that considerable amendment of the Bill is necessary to preserve for the ordinary inoffensive citizen certain rights which I think are being taken away from him.

This is my last point. This Bill is only symptomatic of an attitude of mind in Ministers, an attitude of mind not even of one particular political brand of Ministers—it gets into every Minister once he becomes a Minister and it is, of course, natural in people who have to do administrative work, not being Ministers at all—that they want to get their job done, they want to do it rapidly and perfectly, and they do not care two hoots about anybody's liberty or about the particular infringement of good principles that takes place in their individual case. If that goes on, our last case is likely to be worse than our first. We are departing considerably from English principles. Senator Hearne quoted something about "dlí Chromail" from Irish, but there are a great many sayings in Irish not so relevant as this. There is a saying in Irish "Tiocfaidh an lá a mbeidh an Gaedheal ag gol ar uaigh an tSasanaigh ná faghaidh sé aon dlí chó maith leis"—"The day will come when the Irishman will be weeping on the Englishman's grave because he will never get as good a law." I do not want that day to come or that particular imputation to be laid against us, and for that reason I do not like the Bill, even though I may have to agree to it in the wind-up.

I largely share the views expressed by Senator Hayes, though he has some kind of strange idea, apparently, that he has no interest in smuggling outwards, because he is neither a shopkeeper nor an industrialist.

I think my reference was to my capacity for evading income-tax, not to smuggling.

I have a suspicion that the Minister for Finance will agree with me in at least one thing, that is, that the capacity to evade income-tax is not confined to any one class of the population. However, I should be glad to give Senator Hayes the full benefit of any doubt that may exist as far as he is concerned. In this case particularly, the industrialists and shopkeepers do not want prohibited goods exported. At the present time, they are short enough of stocks and there would certainly be no temptation whatever to have any sympathy with them, even if there were such a tendency at other times.

I think it is perfectly true that there is a mentality in this country which regards the evasion of taxation as not being robbery and smuggling as a petty offence. I was enormously surprised to find the Minister suggesting—I do not think he could mean it—that he had a grievance because the courts had held that the exportation of prohibited goods was a criminal offence. I always thought it was a criminal offence and should be regarded as such. I am speaking now of the systematic and deliberate exportation of goods necessary for the welfare of the people, particularly at a time like this. It is an anti-national and anti-social offence and should be so regarded.

Holding those views, I feel a good deal of reluctance in criticising a Bill of this kind. I have read it two or three times and, notwithstanding certain similarities in it to other Acts, I cannot help feeling very uneasy regarding certain of its provisions. It is possible that the provisions may not be serious in this case, inasmuch as they are not to be put into effect. If they were fully put into effect, it would be disastrous.

I am very anxious to catch smugglers of the type dealt with in this Bill, particularly those who send out of the country goods which are essential to the welfare of the people. I may have some sympathy even with their objects. When I say "their objects," I still believe Ireland to be one and might have some sympathy with hardships across the Border; but I cannot see how one can possibly carry on a State without doing everything that is proper to prevent smuggling. It seems to me, however, that the Government, in their laudable anxiety to catch the culprits, are prepared to take the risk of accusing and finding guilty persons who may be perfectly innocent, just because they cannot prove to the contrary.

The provisions seem to be extraordinarily drastic. Under sub-section (5) of Section 3, a person may be charged with the offence of bringing or sending, on or about a particular date, any goods to any place for the purpose of exportation. I ask the Minister to consider a particular case. I happen to possess two watches, though I have not both of them here to-day. One of them, which was given to me, is somewhat ornamental and possesses a sentimental value; and I have a second one which I do not want to get rid of because it happens to keep good time, which the other one does not. Now, I know that they are articles the exportation of which is prohibited. If I had brought those watches here, and this is a place as defined in this Bill, the Minister's officials could accuse me of having brought the watches here for the purpose of putting them in a packet and posting them from here, this being a less suspicious place than an ordinary post office.

More suspicious.

Senator Hayes thinks it is more suspicious, but I have given him credit for good intentions, and he may at least give it to the rest of the House. I ask the Minister how I can prove that I did not bring them here for that purpose. I can say I did not. If I were not a well-known person, there might seem to be a prima facie case, since I had two watches. I suggest that the section is too wide in saying that, if a person brings an article the export of which is prohibited to any place, he has to prove that he did not bring it there for the purpose of exportation. I suggest that a perfectly honest person could not prove that. Of course, he can tell the court or any official that it is absurd to suggest it, but that is not proving to the contrary. He might easily satisfy a justice that no case has been made that he intended to export it, but that is not proving to the contrary.

Let me take another case, which might be more serious in its effects. Sub-section (3) of Section 3 says that where a person is charged with the offence of exporting on or about a particular date any goods in contravention of any enactment or statutory instrument and it is proved that the goods were previously in his possession and that they were actually exported, that person is deemed to have exported them. If I were a shopkeeper who had had possession of them, I could tell the Minister that I was the owner of a retail business establishment and that I was greatly surprised at what had happened. I could say that I did not give credit, that I did not know the names of my customers and that some of them might have taken the goods across the Border. I could say I had no knowledge of it and would not have given out the goods if I had suspected that that would happen. The customers could come in in the ordinary way of retail business and, if the goods were identifiable, it could easily be proved that I had prior custody and ownership of them in my business. How on earth could I prove they were not exported or that I had not exported them or that somebody connected with my business had not done so? If the dates were not too wide apart, I might be able to give a full account of my movements during the time and prove that I was not anywhere near the Border. However, I do not mind telling the Minister that I do business in Belfast, and cross the Border from time to time.

I am not suggesting that there should be none of these provisions, but I am suggesting that, if such drastic action is being taken, which affects everybody in the retail trade who does not know his customers, there should be some safeguarding provisions. That possibly could be done by an amendment. There should be some definition of "place", so that it should not mean "anywhere". It should be necessary for the prosecution to satisfy the court that the place was a suspicious place to bring those goods. If I brought such goods to a particular place on the Border where there was no authorised customs station, I quite agree that it would be suspicious. But, as it stands, a person might properly bring goods to some place and get mixed up with someone who was a suspicious character, and unable to prove that he was innocent. The only possible answer the Minister can give is that his officials would not be likely to prosecute that person. I believe that is true, but here it is not a case of a particular person that I am dealing with, but rather of a particular class.

There is no provision at all in the Bill to cover the person who travels across the Border or out of the country. When this Bill was brought in to tighten up the position, the least the Government might have done was to include a section which would set out and make legal the present practice in such cases. I have to go to the Six Counties quite often and I go three or four times a year to England. I have my luggage examined on both sides and watch what happens in regard to other people. The Minister knows that the ordinary person, taking small quantities of things in his baggage, does not know what is or what is not prohibited. Generally, the customs officials are very courteous and, unless they see something like an obvious attempt to smuggle things, they allow the small quantity to go through; or, if it is more than they can allow, they say: "We are sorry, but this is more than we can allow and we must take it." My experience is that they are always courteous, but they are dealing with people who should not be brought under this Bill.

It might be extremely difficult for such people, having brought those goods to that particular place, to prove that they were not trying to smuggle them. Any person who has a prohibited article in his baggage when going out, should be exempt from these provisions if he has been shown a list and has produced the articles there and then to the official. As the Bill stands now, if he produces the articles to the official, he can be charged immediately with smuggling. That is not the intention of the Bill, which is intended to tighten the regulations, so I suggest that there should be some safeguard for individuals who are going about their ordinary business.

I am always a little bit afraid of very drastic legislation for an emergency. I am glad this is only for five years, but I do share Senator Hayes' view in one respect and that is that I think five years too long, and if you are going to have the abolition of the principle that a person is innocent until proved guilty, it is better that it would be done by a special court for that purpose only, which would not introduce the principle generally into the ordinary courts.

I would be very glad if, in reply to this debate, the Minister—if it is not too much to ask of him—will explain to us the meanings of the Schedule. It may be that I have been lazy, and I should have looked up the lists of Acts in the Schedule, which on the face of it looks a little bit peculiar. We can see the Air-Raid Precautions Act, the Fisheries Act, the Pigs and Bacon Act, the Dangerous Drugs Act and other Acts, all coming under this Schedule. No doubt there is a simple explanation, but perhaps when he is replying the Minister will set us right on that and save us the trouble of going through all these Acts.

My education is proceeding apace. I am delighted to learn that I have at least one colleague who is not like unto any other, being neither shopkeeper nor industrialist, who has sources of income putting him beyond the realms of temptation open to the rest of us. But I do join with Senator Hayes in hoping that the Minister will, perhaps, give some assurances that shopkeepers and traders will seek to have in this Bill. I have read the Bill several times and I am wondering whether Section 3 (3) is needed at all, whether the position would not be adequately safeguarded in sub-section (7), where it is laid down "where a person is charged with the offence of being knowingly concerned..." There is the distinction that makes all the difference.

I join with the two previous speakers in expressing grave doubts as to the wisdom of having so arbitrary a section which permits the authorities to decide who, prior to such exportation owned, possessed or had any of these prohibited goods. I doubt if any member of this House has not got the utmost sympathy with the Minister and does not desire to see the Minister perfect machinery that will stop this pernicious practice of the smuggling in or out of these prohibited goods.

As Section 3 (3) stands, I join with the previous speakers in suggesting that it is unfair to the trading community. We have to watch the wording of our legislation. This particular sub-section subjects them to dangers to which they should not be subjected, and I submit, in all humility, that perhaps the Minister might be able to agree that the sub-section could be deleted entirely and that the safeguards he is seeking are embodied in sub-section (7). I do wish the Minister, in his efforts to stop this practice, every success, and I hope at the same time that he will see some sense in the suggestion I make.

I think that the Minister, when in the other House he was defending Section 9, took it in a rather unfortunate way because he gave there as one of his reasons for that particular section that some of the courts had not been as helpful to him as he thought they should be. It seems to me that if that is so—I have no knowledge whether it is so or not, but I am perfectly prepared to accept the Minister's word that some of the courts have not been reasonable—the Minister is going about the matter entirely in the wrong way. If the Minister feels that certain district justices are making fractions decisions, are not deciding cases in accordance with the law, his attitude should be that he would go in the proper way and dispense with the services of those justices rather than throw, so to speak, an aspersion on the courts of law as a whole, because that is what the effect of his attitude has been.

I would like the Minister also to make it clear—I am not quite clear on the position at the moment—whether, in the event of a person who is prosecuted being acquitted in the District Court, the State having then appealed and the person again being acquitted in the Circuit Court, the Circuit Court judge will have any power to award the costs of the appeal to that successful defendant against the Revenue Commissioners. It certainly appears to me to be only fair that if the State, with all its resources, is able to bring a small man, not merely to one court but to a second court for the purpose of proving his innocence—because that is what it amounts to under this Bill; it is not a question of the State going to prove his guilt but of the State asking the defendant to prove his innocence —it should pay his costs. If the court has not power to give him his costs, I think the Minister will agree with me that it would be reasonable that such power should be provided, now that an appeal is being provided. I do not know quite honestly whether the power is there in regard to these particular Acts, but if it is not, I suggest that it certainly ought to be.

The whole difficulty about Section 3 is that it deals entirely with the case of the Revenue Commissioners suspecting that a person is about to do something; in other words, it deals with the suspicion that there is a germ of thought in somebody else's mind and that suspicion is being made guilt until it is upset. I suggest that it ought to be dealt with. I am entirely with the Minister in giving him every reasonable power that he possibly can have to prevent illegal export, but I suggest to him that the matter might be got round in some way by ensuring that there would be a specific provision, a specific safeguard, that the Revenue Commissioners would have to prove that they had reasonable grounds for that suspicion and, if they were able to prove that, then it would make the defendant guilty unless he was able to prove his innocence, but not until that had been done.

We have heard a good deal about sympathy with the purposes of this Bill, and dislike and reprobation of any smuggling. But I suppose we have an equal reprobation of the act of murder, and yet nobody has ever suggested, in the code of law as applied to murder, that the accused should have to prove his innocence. I feel that there is inadequate justification for that complete reversal of the code of law, that a person is assumed to be guilty and has to prove his innocence. I have no sympathy with customs offences, but I do not feel that customs offences, which in a way are not as serious as many other offences which I could name, should be put in this, as one might say, privileged position.

The Minister has given us no instances of the evasions which have made this necessary. One does not naturally know, but there is in the minds of some of us a feeling that a lot is happening about which we never hear. I do not want to go into that, but everybody knows that things are happening every day which are excluded from the public Press. I have not seen anything in the Press which leads me to believe there have been mysterious evasions of the customs regulations. I have no doubt, however, that the Minister will tell us there have been these evasions, and that that is the reason for this Bill. Or, is it purely precaution? Is it that the Minister is afraid that things will be done in the future which have not been done up to the present? In fact, I put this specific question to the Minister: What is the need for completely departing from the sacred principle of law which governs practically every offence we know of, except, I believe, house-breaking? I know that, when reading law in my young days, I was always led to believe that the only offence in which guilt was assumed was that of being found in possession of house-breaking appliances.

The Minister has said that only latterly has it been necessary to prohibit exports, and that hitherto the customs were mainly concerned with import protection. Is this principle of assuming guilt enshrined anywhere in the import regulations? There is the Customs Act of 1872, about which the only thing I know is that it touches on a matter, censorship, with which I am very much concerned. The Act of 1872 is used to justify the seizing of books coming into the country when apparently censorship cannot be carried out by any other means. That is the only kind of intimate acquaintance I have with that Act, but I should like to know whether this departure from the ordinary presumption of innocence is embodied in that Act, and to what extent is it there embodied.

I feel very much in agreement with Senator Hayes that it is very tempting to take far wider powers than are necessary. It is the lurking desire of everybody to get power and be a dictator if he can. In a democracy where majorities are pretty well under rule and order, it is a great temptation, and it is our duty to be very vigilant about these matters, and even if it does mean an occasional evasion of the law, to put that in the balance against the danger of accusing innocent people. I hope that, when the Bill comes to the Committee Stage, it may be possible to get the Minister to make some modification, some concession, in regard to these drastic powers he is taking. I should also like to see the life of the measure much shorter. I think five years is an unnecessarily long period for which to give these powers.

We have a right also to ask the Minister if these extreme powers have been found necessary in any of what I call the freedom-loving countries. I know that in totalitarian States anything can be done and one is liable to be put into a concentration camp if one opens one's mouth too wide, but, in democratic countries, do these powers exist? It is very hard for us to make adequate research, but have they ever taken such powers in England, in America, in the Scandinavian countries, or in Holland or Denmark, all of which are what I call freedom-loving countries, where popular freedom is respected in a way in which it is not in certain other countries? What is the reason for this long Schedule? The Minister may say that we should have examined the statutes, but there are some extraordinary repeals, such as the repeal of the Musk Rats Act, and I think we might ask the Minister, who can get the information very readily from his officials, why that long list of repeals is necessary.

Senator Sweetman made an extraordinary statement. He said that the Minister had complained that some district justices were not giving him the results he wanted, and suggested that, if that were so, he ought to get rid of them.

I do not think the Senator suggested anything of the sort. What the Senator suggested was that if some district justices were being fractious and were not fairly interpreting the law, the proper way to deal with that situation was to remove them and not to criticise the entire administration of the law.

That is exactly the point. We complain about the powers the Minister is taking in the Bill, but we are to give him a power which is not given in this or any other country in the world, according to the Senator's suggestion.

I am in thorough agreement with the discussion up to now, because, like the other speakers, I notice a tendency on the part of Ministers to assume and to accumulate power. They will tell us it is because of the emergency and that the powers are necessary, but, having got them, they are anxious to use them now and again, although we get assurances that they are to be used only in case of emergency and in extreme circumstances. I am very reluctant to give this power. The question has already been asked—and I hope the Minister will deal with it—in the event of a citizen being brought before the court and getting a discharge—in other words, being proved innocent—and the State taking the case further, what redress has that citizen against the State in respect of expenses incurred and the stigma of a prosecution? Is there any provision, or would the Minister be prepared to adopt any provision, to compensate such a person? There ought to be provision for that. I do not think there is any need to go into the other point raised by Senator Sir John Keane as to the number of repeals in the Bill, but I should like the Minister to give us some information on the two points I have referred to.

Coming from a Border county, one hears so much for and against a measure like this that it is rather difficult to express a view on it at all. I frankly feel in the position of one who regards the Minister as asking the House to give him very extraordinary powers, and, on the other hand, who knows that his officials would probably say that he is asking for these powers five years too late. I am wondering what the Minister seeks to prevent being exported now and why it is that this illicit traffic was not stopped years ago. That is what puzzles a great many of us. I would like to have some enlightenment on what the Minister hopes to achieve at this time of the day. Stories of smuggling can be told in any of the counties along the Border which are so amazingly fascinating that probably one of the most interesting books of modern times could be written on some of the escapades of these people. I see Senator Johnston smiling. I am sure he could tell some interesting tales himself. We all know the ingenuity and the marvellous ability to plan shown by those people who have engaged in the traffic of exporting prohibited goods. The degree of success they have apparently achieved has been a revelation to all of us.

And the money they have made.

It is rather puzzling and some of us often wonder how it is possible, but I can tell the Minister that quite a number have made money, not only by the quantity of commodities they have managed to export, but the quantity they have managed to import as well, commodities which a number of our consumers are glad to have and the Minister knows that.

That is right.

How many of the Minister's supporters enjoyed some of the things that came across?

That is terrible.

It is terrible, but I do not know what you would say if you saw a farmer prepared to pay £5 or £6 for a bag of sulphate of ammonia, the export of which is prohibited, and saw a good crop of potatoes after using it. I am not going over the measure as a whole, but I want to draw the attention of the Minister to Section 4 and to call the attention of the House also to the fact that Section 4 gives power to an officer in the customs whenever he reasonably suspects, to request any person in whose possession or control or in whose land or premises, or in the immediate vicinity of whose lands or premises the goods are found, to give certain information such as the name and address of the owner and so on.

I want to point out to the Minister, and I am sure that Senator Johnston will agree, that the use of that power is likely to create very considerable complications. If you happen to be the owner of a farm of, say, 100 acres along the Border, when the nights are long...

...and particularly favourable for those who know the byways and keep off the highways, it is very easy for a farmer to be put in the position of having goods stored on his land of which he will have no knowledge whatever and cannot possibly have. Some of us know there are corners in our fields that we do not see for months at certain periods of the year. I am sure that Senator Hearne will bear me out that he does not look in all the nooks and corners of his farm after he has gathered in his harvest and abandoned his fields to the winter and the weather. The people who carry on this sort of traffic are very observant. Not only are they observant of the habits and beats of the customs officials, but it is their job, too, to be observant of the habits of the farmers whose lands they have to traverse, and I can easily see farmers put in a very difficult position by that section.

I want to hear the Minister on it because I can assure the Minister that a great many things happen along the Border, and a great many people make use of the land of farmers without permission, and the farmers have very little sympathy with what is going on at all. If the farmer is to be held responsible for everything found on his land, it is very easy for somebody who does not like me very well, to have me brought before the court and obliged to give an account of something found on my land. The quantity may not be very large, but it may be prohibited goods. I will have more to say about it when the Committee Stage is reached.

Of course, a good deal depends on how it is going to be interpreted. I would like the Minister, if it is possible for him, to tell us something about the proposed repeal of Section 30 of the Agricultural Produce (Potatoes) Act of 1931. I have not discovered the meaning of Section 30 of that Act, but I may infer that it is something which will prohibit me, as a neighbouring farmer, passing a sack of potatoes to a man across the fence in Fermanagh. It may also prohibit the exchange of seeds, an exchange that often takes place, and I would like to hear from the Minister what exactly is meant by it.

Generally, however, I say to the House, that the problems of the customs officials are so great and the ingenuity of the people with whom they come in contact by day and night, mostly by night, is so amazing, that I doubt very much if any law this House can pass will enable them to circumvent the activities of these people. I do not think it will. They will beat you every time. They have ways and means of assuring the success of their ventures. I think the Minister will have to make investigations of a character other than what he will be able to achieve by a Bill like this, but there is the grave danger that the passage of such an Act as this may cause innocent people to be found guilty of offences of which they have no knowledge and no sympathy whatever. I would not like the Bill to pass and be committed to the principle embodied in it without indicating my fears in that regard. Too much of our territory runs along the Border for me not to know very well the difficult position that a few people, prepared to engage in any reckless escapade, can create for a great number of law-abiding people who have no desire whatever to engage in this sort of business.

There are not so many people engaging in this illicit trade at all. The number is limited, but, apparently, they have it very well organised and they are really efficient in the way they go about their job. You would have to have some admiration for the skill with which they execute their task. They have been really effective. It is conceivable that the net result of the Bill will be to impose penalties, not on those who help them at all, but on unwilling victims. It is an aspect of the matter to which I should like the Minister to give some attention in his reply.

Mr. Johnston

Like Senator Baxter, I come from a Border county and although I have no personal knowledge of smugglers I know smuggling is going on. I say without fear of being accused of exaggeration that it has been brought to a very fine art. I do think that the Bill is very, very necessary, and I do agree with Senator Baxter about the provision that a person with land upon which something is caught or near which something is caught, may be liable. I think there is danger there. My own opinion is that at the present time nothing is got from over the other side of the Border without something being put over from this side. There is our big trouble. Good foodstuffs, particularly butter, are being put across the border.

And sugar.

Mr. Johnston

And sugar. Not in half tons but in lorry loads. I do not begrudge the Minister and the Revenue Commissioners whatever powers they may need because, in my opinion, if there were a preventive officer in every field from one end of the Border to the other it would not stop it. I think as Senator Baxter said, they would find some better way of hoodwinking. It was common in the economic war and it is common now for somebody to put out an old pig or something, allow that to be caught and then get over a whole drove of cattle in some other place. Farmers are getting hundreds of thousands of pounds by giving access to the lands on this side and the other side of the Border to drive cattle over. That was the position and the present position is that hardly anything is being got from the other side without valuable foodstuffs being put over which we want for ourselves.

Judging by the speeches I listened to with interest, I would suggest that it is a good job for me that I was not the British Minister responsible for introducing in an atmosphere anything like the atmosphere here to-night, the customs provisions now in operation under the British laws for which Senator Sir John Keane has such a very high regard —the sacred principles of British law. There is not in this Bill one new principle that is not already in British law, not a shadow of one that does not exist in the law for the last 75 years, which is longer, I expect, a good deal even, than the life of Senator Sir John Keane. We heard a lot about the code of law, and I thought Senator Sir John Keane said he knew something about the law, and he spoke about the sacred principle of the right of people to be tried before being found guilty, which he said is enshrined in British law. There is not a single principle of any kind introduced into this Bill that has not been in existence in the code of law dealing with customs since it was established and formulated by the British Parliament. The Senator spoke of the reversal of the code of law.

Could the Minister particularise more?

I am using the general statement Senator Sir John Keane made. I hope I am quoting him exactly. If I am not I am prepared to be corrected. I wrote down here the words he used. If I did not hear them correctly I would not want to misrepresent him. But here in the note it is "a complete reversal of the code of law". That is one phrase. Another is: "completely departing from the sacred principles of law". There is not a word of truth in either one of these statements. The same applies to the remarks of other Senators that this is a most drastic measure. It is admittedly drastic. So is the code of law at present in existence relating to customs, the code relating to smuggling inwards. Some people here, probably Senator Sweetman might know something about it, because he is a lawyer. It is a drastic code, but drastic and all as it is, it has not stopped smuggling. As Senator Baxter has said, probably smuggling will go on to the end. It may be that the law will be amended now and again by innocent Ministers like myself who come here and try to get this House to pass some measure.

There will not be any more like you.

I am sure the Senator means that as a compliment, and I accept it as such.

Oh, certainly.

I would like the House to accept what I humbly suggest, that I am as good a democrat as anybody here. I think I am anyway. Certainly I do not want to put any innocent citizen in a wrong light before the law or before his fellow citizens. But smuggling has grown to an enormous extent. Those on the Border, like Senator Baxter and Senator Johnston know a good deal about it because they are probably asked on frequent occasions to interfere with the Minister and the Revenue Commissioners to try to save a smuggler who has been caught.

Well, I was never asked, but Senator Johnston may have been.

Were you not? I know quite a number of them have been. They do not all go to the Minister. Great numbers go to the Revenue Commissioners and the higher officials. There are piles of correspondence from Deputies and Senators, influential people, clergymen and others, trying to save these smugglers from the consequence of their acts.

In the year ended March 13th last there were 13,000 seizures of smuggled goods. There were a good many cases where we could not prove their offences because in the case of smuggling out of the country our law had not contemplated such a state of affairs. British law did not contemplate it. Until recent times they had not very much use for it. As Senator Douglas said, they had no land frontier, but there is exactly the same drastic law in operation in England to prohibit export smuggling as well as import smuggling, as we are asking the House to give us. There is not in the Bill any new principle that there is not in the modern British code since the war.

Would the Minister say, either now or afterwards, what is the Act? I am not questioning his word, and I accept what he said, but I would like to look it up.

I cannot quote the name.

There is no need for it now, but I would like to look it up.

Very well, we will have that on the Committee Stage. The principle that we ask for here is in existence in British and very modern British law. As a democrat I do not wish that the rights, powers, and liberties of any individual citizen should unnecessarily be restricted.

We are struggling through a very bad period of the emergency. Even though the war in Europe may end, as some hold, in the course of a few months, the emergency, so far as the difficulty of getting supplies is concerned, will not end for a long time after. We will still have great difficulty in supplying our people even with the essentials—clothes, boots, and other things, as well as foodstuffs. The fact is that things that were in short supply here were being exported. We know that. Amongst the seizures made last year were sugar, and other essential goods that are required here. Medicines of different kinds and drugs are very difficult to get, but when some supplies happened to be brought into the country they were smuggled out. In all cases we were not successful in getting the people concerned convicted. I do not want to see innocent people convicted any more than any Senator does. But it has been the experience of the British Government, and of our own officials here, officials with long experience in regard to smuggling into and out of the country, that smugglers are very able people. They are able to get round, over and under all the rules and regulations of the officials. You would want to have an official watcher on every 50 yards of the Border in order to prevent this smuggling, and even then you may not succeed.

Senator Hayes and other Senators referred to the onus being put on the individual to prove himself innocent. That is enshrined in the British customs law. It is nothing new. It is not new in our law because we adopted British law. It is not right, as Senator Hayes said—I know he was referring to me in my official position as Minister for Finance—that I do not care two hoots about anyone's principles. I really do care about people's principles and about the principles of democracy, and it is because I was so impressed by the case made against the provisions of this Bill in the Dáil—drastic as I know they are—that I agreed to change its character from a permanent to a temporary measure. The Bill, as introduced in the Dáil, was intended to be a part of our permanent legislation. I think that was going a good part of the road to meet the criticism that was put up against the Bill. With regard to a point made by Senator Douglas, the position previously was that normally smuggling was not regarded as a criminal offence, but as a civil offence.

In the case of inward smuggling. It would seem to me, however, that the sending out of goods during an emergency is a criminal offence.

In November last that point was determined by the Supreme Court. The court held that an offence of export smuggling committed under the Emergency Powers Orders was a criminal offence. Previous to that, smuggling had been regarded as a civil offence. Senator Douglas also raised a question about defining "place". I do not think that we will find it possible to do so. We will have to leave it wide, and very wide. I do not think that any definition that we might get would be satisfactory. Any restriction on it would, I suggest, only play into the hands of the smuggler. We shall probably discuss that further on the Committee Stage. Senator Sweetman and Senator Foran raised a point about the awarding of costs. I am not sure, but I do not think there is power to award costs in the District Court, and I am doubtful about the Circuit Court.

There is not power in the District Court to do so.

I am not quite sure what the position is but I shall have it looked up. I did make a very mild remark about certain courts in the Seanad. I could have said a good deal more, but I thought it would not be wise. If I were in opposition I would have a lot to say, but being a Minister I have to be very careful.

There is a good day coming.

Senator Douglas will not be here to see me in opposition, or my Party in opposition, long as he may live, and I hope it will be a good while.

That is a black look out for the country.

It is the best news this country has heard for many a day. Senator Douglas raised another point about shopkeepers being put in difficulties as regards selling goods innocently to people who export them afterwards. There are shopkeepers who make a business of that. Of course, they are watched, but their customers are not always caught. Unfortunately, we are not always able to catch the people who made these purchases in shops here. I wish we could. We are anxious to get extra powers so that we may be put on an equal footing with those shopkeepers and their customers, who are mostly from the North. They break the law by taking away goods that are urgently required by our own people. Some Senators appeared to be mystified about the long list of items in the Schedule which are being repealed. The sections which are being repealed apply to the provisions of the Customs Acts and, in specific cases, to various classes of goods subject to export or import prohibition, as the case may be. These will be superseded by the present Act, and it is desirable that they should not continue to cumber the Statutes. The proposal is just to make the law simpler and does not take away any power that we already have. When the House passes this Bill, the powers in the Statutes that are being repealed will no longer be required.

Question put and agreed to.

When is it proposed to take the next stage?

Will the House be sitting next week?

Yes; on Tuesday.

I do not think there would be any objection to Tuesday, but in order to give more time for handing in amendments perhaps it would be better to say Wednesday for the Committee Stage.

Very well, Wednesday or Thursday.

I would like to know from the Minister, if Wednesday or Thursday is fixed for the Committee Stage of this Bill, whether it would be convenient for him to take the motion that stands in my name next week? I understood that, possibly, Wednesday or Thursday would be convenient for him.

We can see when we get this Bill out of the way.

The Bill, of course, would have precedence over the motion.

I understand that the Seanad will have the Central Fund Bill on Tuesday.

I suggest that the Committee Stage of this Bill and the motion be fixed provisionally for Wednesday.

The Bill and the motion. We can try that.

I think we might agree not to delay this Bill. It is a question of discussion in Committee. It is not, strictly speaking, a Money Bill but it is of similar character, and I should not like to hold it up at this stage.

I do not want to suggest any interference, but is it likely that the Central Fund Bill will be finished in the Seanad on Tuesday?

The Central Fund Bill is a one debate Bill in the Seanad and will surely be finished on Tuesday.

I am in difficulties about the Racing Bill which will be taken in the Dáil on Wednesday.

Could we not agree that the Cathaoirleach would arrange with the Minister to take this Bill and the other financial business on either Wednesday or Thursday, whichever is convenient?

Fix it for Wednesday and it can be changed to Thursday, if necessary.

Wednesday provisionally.

Agreed.