There is an error in amendment No. 1. The section should be Section 8, and not Section 7.
Turf Development Bill, 1945—Report and Final Stages.
An Leas-Chathaoirleach
I move amendment No. 1:—
In page 5, Section 8, to add to the section a new sub-section as follows:—
(4) The managing director shall perform such duties as are delegated to him by the board.
I have put down this amendment to give the Minister an opportunity of clarifying what he stated on the last occasion. The House will recollect that, on the 8th of this month, when we took up the Turf Development Bill in the evening, we were discussing an amendment dealing with the powers of the managing director, one proposing to delete the necessity for a managing director. In the course of that discussion the Minister indicated, at column 1636 of the Seanad Debates, that the Government would appoint a managing director, and would indicate in general terms "the powers which the managing director is to exercise, as such". Subsequently, on the following day, at column 1645, the Minister made it clear that the managing director was going to carry out the duties that were given to him by the board, and that his powers would not be indicated in the terms of his appointment. This is what was said:
"Mr. Lemass: It is intended that the managing director will carry out his duties subject to the board.
Mr. Sweetman: And will carry out such duties as are delegated to him by the board?
Mr. Lemass: Yes.
Mr. Sweetman: And only such duties?
Mr. Lemass: Yes."
That seemed to me to clash with what the Minister had said on the previous night. I have put down this amendment to get the situation clarified.
The language which one uses in ordinary conversation is, necessarily, different from that which one would use in framing legislation. I had a difficulty in finding words to describe precisely my objection to this amendment without falling into errors arising out of the legal significance of terms and their ordinary colloquial significance. The board will consist of a chairman, a managing director and other directors. When, therefore, one talks of the managing director and the board as being two separate authorities, one first of all has to make it clear that the board is a body which includes the managing director. He is one of its members. It is not intended, nor do I think it would be desirable, that the board should have power to delegate to the managing director any of the duties of the board. I think it is desirable, and the Bill so provides, that the board may perform some of its functions through, or by, the managing director.
That is only an enabling section?
It is an enabling section which is intended to do what experience has shown is desirable. The board may authorise the managing director to enter into contracts, to sign contracts on its behalf, to go to Sweden to buy machinery on its behalf, or to carry out functions of that kind, but I would not contemplate the board deciding that a particular duty of the board should be delegated to the managing director and be exercised by him independently of the board. I think that the managing director should at all times carry out his duties, subject to the board.
Perhaps I should clear up one further possibility of error. I contemplate that the warrant of appointment which the managing director will receive from the Government will set out in very general terms what his duties as managing director are to be. I do not contemplate that the Government will merely say: "You are managing director; find out what your duties are from the board". I think that the Government will give in some general terms, an indication of the functions that he is to perform as managing director, and will relate the conditions of his employment to these functions. I do not mean that the Government will attempt to draw up something like a City Management Act which would set out the functions to be exercised by the managing director and the other functions to be exercised by the board. The managing director will be part and parcel of the board, and in matters of policy and matters which are properly the concern of the board, he will be one person there with one vote. So far as his status is concerned, he may have greater influence than an ordinary part-time director would have, but, on any matter which goes to a vote, his vote will count no more than that of any other member of the board.
To sum up, therefore, I think the position should be left as it is. I do not think it is desirable that we should have any specific provision for a delegation of duties by the board to the managing director. The managing director, in my view, will be the executive officer of the board sitting with other members of the board at meetings to determine questions of policy and the general lines upon which the board will proceed; also carrying out executive acts which the board could not be expected to attend to, but such acts as do not affect the authority of the board.
And there will be no function reserved for the managing director?
There will not.
That satisfies me.
Amendment, by leave, withdrawn.
I move amendment No. 2:—
In page 6, Section 11, sub-section (2), to delete the words "the national territory" in line 11 and insert instead the word "Ireland".
This amendment was put down because I am not quite clear what the words "national territory" are meant to connote in this section. Section 11 sets out a number of disqualifications of members of the board and it states that a member shall be disqualified if he ceases to be ordinarily resident in the national territory. I take it that the national territory means Ireland and if that is so it should be stated in the Bill.
There is a difficulty in this matter. Article 2 of the Constitution says the national territory consists of the whole island of Ireland, its islands and the territorial seas. The word "Ireland" is the English translation of "Eire" and if we were to put "Ireland" in the English translation and put Eire in the Irish text of the Bill it might be misinterpreted to mean the area under the Government of Ireland, that is the Twenty-Six Counties. When we use "national territory" it means the whole island and this provision simply means that the managing director shall be eligible to act as such so long as he is resident in Ireland.
Was there ever such a bilingual fraud perpetrated on the State as there has been in this Constitution? We cannot refer to this country in either Irish or English as Ireland. It is all right for the Minister to say that Ireland is Eire and that Eire is the Twenty-Six Counties, but surely we never meant to convey——
I never said that.
The Minister never said it.
The whole reason for not putting Ireland in the Bill is that Ireland does not mean Ireland. Is that it?
No, the term "Ireland" or the term "Eire" means the whole of this island. The Government of Ireland is governing the Twenty-Six Counties of Ireland at the moment.
I have done more linguistics than the Minister but there is no one who can understand what the Minister is doing now. Is the position to be that when we are talking Irish we do not know what to call the State and if we are talking English, which is the more widespread language, and say Ireland, which used to mean the island of Ireland, are we to find that in legislation here it has not its historic meaning? We must now use another term, we must paraphrase the island of Ireland and call it the national territory to denote the historic island of Ireland. That is the Constitution and it is a fraud. That is its contribution to the settlement of Partition.
The ambiguity does not arise from the Constitution but is another evil arising from Partition.
Some people apparently wanted to make linguistic policy. They abandon one name for something that is another name.
The Senator should read the Constitution. It would do him good.
An Leas-Chathaoirleach
The Constitution is not relevant.
It is, of course, Sir. The Constitution comes into this and I say it is cracked.
Is there a real objection to using the word Ireland which we would naturally use?
There is a certain difficulty arising out of the fact that the Government of Ireland has not extended its sovereignty over the whole of Ireland. We will do that yet.
Meantime we cannot call ourselves anything.
Amendment, by leave, withdrawn.
I move amendment No. 3:
In page 6, Section 14, to delete the word "two" in line 39 and to substitute the word "three".
This is a small thing, a question of increasing the quorum of the board. I think the Minister has appreciated the desirability of having a quorum that would be greater than the chairman and managing director alone.
I will agree to that.
Amendment agreed to.
Government amendment No. 4:
In page 7, at the end of Section 17, after line 20, to add the following sub-section:—
(2) In case the board in the performance of the duties referred to in paragraph (d) of sub-section (1) of this section, interferes, without complying with the provisions of Section 31 of this Act, with any land or any easement, wayleave, water-right or other right existing over or in respect of any land or water, the person having estates or interests therein, or the owner thereof, may maintain an action for damages against the board as if the board were not acting pursuant to a statute.
I was going to move to recommit the Bill on these amendments which stand in my name on the Order Paper. I think there is a principle underlying both the Minister's amendment and mine that could only be discussed in Committee. I will be willing to withdraw all my other amendments except the final amendment because if the final amendment is accepted it will cover all the others. But if the Minister does not accept it, I will be somewhat satisfied with the one he has introduced himself. He has gone a long way towards meeting the point I have made and perhaps he might go a little further.
Agreed: That the Bill be recommitted in respect of amendments Nos. 4 and 13.
I put down amendment No. 4 for the purpose of initiating whatever discussion may arise on this matter. Amendment No. 13, in Senator Kingsmill Moore's name, seeks to impose on the board liability to pay compensation for damage to property which is not covered by the existing provisions of the Bill; that is to say latent damage due to interference by the board which because the fact of that interference or the damage that might follow from it could not be anticipated beforehand or ascertained in any definite way, was not notifiable under the provisions of the Bill.
Senators will remember that we discussed this matter on the Committee Stage, and Senator Kingsmill Moore argued that owing to the fact that this body would be performing its functions under powers conferred on it by statute no action would lie against it in the circumstances I have mentioned, unless negligence or carelessness could be proved. To the extent that that argument was sound I think I have met it by this amendment, which removes that disability. The amendment contains no expressed provision for the payment of compensation but that does not mean that a claim cannot be made against the board and, of course, an action in the courts would not be necessary unless the board denied liability. I think this amendment goes as far as is necessary to meet the case which Senator Kingsmill Moore made. I gave the matter very careful consideration since the Committee Stage and decided if there was a case to be met it was the contention that it was generally desirable to put the board in the same relationship to the canal company or any other person in respect of such damages and claims for compensation arising out of damages, as a private person would be. I understand that Senator Kingsmill Moore wants to go further than that. He proposes to give the canal company or any other private interest which might be affected in this way a claim for damages against the board even in circumstances where such a claim could not be sustained against a private person. I do not think that that is desirable. The board can acquire property compulsorily and can interfere with certain rights compulsorily. It cannot do so, however, unless it notifies the person concerned and takes certain other steps, such as depositing maps and plans and making known what precisely the action it is going to take is. If, having followed the procedure laid down in the Bill, it does interfere with anybody's property or rights, then compensation is payable, to be determined, in default of agreement, by arbitration. In circumstances where action by the board causes damage, other than in circumstances in which the board exercise their compulsory powers, the position under the existing law would be that a claim for damages could be sustained if such damages could be shown to be due to negligence or carelessness.
I am proposing here that, where the board, without complying with the provisions of the third chapter of the Bill, interferes with any easement, wayleave, water right or other right, a person having an interest in those rights, or the owner of the rights, may maintain an action for damages against the board as if the board were not acting pursuant to a statute. In so far as the board was in a stronger position in resisting claims of that kind by private persons or public companies by reason of the fact that it was acting under statute, that position is being remedied and I think that that is going far enough.
The illustration used was the possibility of the excavation of a bog adjacent to the canal affecting the water supply of the canal. The bog is there now and always was there. It was there when the canal was built. The private owner of the bog could have undertaken its drainage or even the mechanical winning of turf from it if he had so decided. The mere fact that the bog has passed into the ownership of Bord na Móna and that the board has begun the development of the bog should not, I think, strengthen the position of the canal company. I agree, and this amendment is intended to ensure, that it should not weaken the position of the canal company. As the law stood, the canal company could not proceed against Bord na Móna for the loss of any right through the drainage of the bog unless it could prove negligence or carelessness. In future, it will not necessarily be in any worse position to sustain a claim against the board than it would be in sustaining a claim against a private person and it seems to me that that is an adequate safeguard for the canal company or any other interest which may be affected by the exercise of the board's powers.
I do not agree with the Minister in that. Sub-section (2) of Section 32 refers to compensation for land acquired and states:—
"The amount of the compensation to be paid by the board on account of the termination, restriction or other interference (whether permanent or temporary) by the board under this Act of or with any easement, way-leave, water-right or other right over or in respect of any land or water or the diversion, closing, removal or other interference (whether permanent or temporary) by the board under this Act of or with any private road, way, or bridge, or any canal, or other artificial waterway or any artificial water-course or the interference (whether permanent or temporary) with any land by the board under this Act shall, in default of agreement, be fixed under and in accordance with the Acquisition of Land (Assessment of Compensation) Act, 1919..."
In that case, it appears to me that any interference, whether in the nature of a tort or otherwise, is to be the subject matter of compensation, to be fixed under the Act of 1919.
Interference under this Act. The section relates to land acquired or rights interfered with under this Chapter.
Interference with any land.
Under the Act.
"Under the Act" does not affect the matter. What is referred to is interference with any land by this board under this Act. In carrying out work under this Act, if they interfere with any land, the person injured must seek compensation under the Act of 1919 and must make the claim within 12 months.
The 1919 Act refers to the taking of land.
This Bill refers to interference. That would seem to do away with all other rights.
I should like to say, in the first place, that I much appreciate the way the Minister and the Minister's staff have met me in regard to the points which I raised and by the introduction of the amendment which now stands as a Ministerial amendment. That it does not go further is largely attributable to myself for not having made my points sufficiently clear on the Committee Stage and through my having been guilty of a slight misstatement of the law which I did my best to correct by letter immediately afterwards. The ways in which Bórd na Móna can affect the property of a private individual might be put into three categories. In the first place, they can do so by the compulsory acquisition of the property of an individual or corporation. That was adequately dealt with by the original sections of the Bill. Secondly, they can compulsorily interfere with the easements or rights of property of any person though they do not take the property or easement, and that form of intentional interference was, I think, also met with in the Bill as originally drafted and is the type of intentional interference which, I think, is referred to in the sub-section which Senator O'Dea has just read.
It refers to interference and does not state whether it is intentional or otherwise.
It deals with interference under the Act; that is, by using machinery provided by the Act to serve notice of intention to interfere. That is the way I interpret the Section. In those two respects, the Bill, as originally drafted, met the reasonable requirements of the private owner. There is, however, another class of case which I envisaged and which is especially likely to happen when dealing with some unstable thing such as bog, the properties of which are not easily understood, and engineering in connection with which is complicated. That is, an injury which you do not either anticipate or desire and which may be caused, without any negligence on your part, by reason of the properties of the material on which you are working. A typical case would be if, by taking away large quantities of bog, you had interfered with the lateral support of another person's property, causing the collapse of that property. Another case which has been called to my attention since the Committee Stage is where you are working bog on a hillside and, as a result of the excavations, there is a slipping of the whole bog, covering agricultural land at a lower level. Both of these cases are, I think, met by the Minister's amendment. There is a third class of case which would be met by my amendment which stands last on the Order Paper and for which the Seanad should, I think, make provision. I stated—and stated wrongly—in the course of the debate on Committee Stage that if, by conducting drainage operations on your own land, you removed from another person's land water which, in fact, was supporting his soil or his house an action would lie at common law. When I stated that, I stated the law too widely.
There was a case decided about 1869 which set out that where one owner, digging his own land and draining his own land, by these operations, drew off water from his neighbour and caused his neighbour's house to crack and fall down there was no right for the neighbour to get damages. Ever since this case was decided the courts have been trying to get away from it. They have decided that if the water contained a few ounces of mud the principle does not apply. They have refused to apply it to semi-liquid asphalt. They looked upon that case with a jaundiced eye and said that if ever a similar case came before them again they would probably reserve their decision. This law was laid down for a private and isolated transaction concerning the activities of individuals. Here you have given to a great company very necessary compulsory powers. I am not making any complaints about these compulsory powers because it is proper that the company should get them and they are necessary, but the fact is that Bord na Móna is going to masticate the surface of Ireland by the square mile.
It will not be a question of digging a turf bank, it will be a question of scraping away the surface of the land for miles and miles. Instead of taking away a few hundred gallons of water it may be a question of interfering with the subterranean support of very considerable areas of land, land upon which there are cottages, agricultural holdings, roads, canals and railways. My amendment is designed, first of all, to avoid very lengthy and complicated cases that would depend upon the evidence of experts as to whether water only or water and a small amount of mud had been taken away. You can see such a case going from court to court and finally arriving in the Supreme Court to be decided possibly by a majority after a ten days' hearing. Firstly, I am trying to avoid this and secondly I am trying to ensure that when you give extensive compulsory powers to a public utility company, such as this board will be, then if, in the exercise of their powers, they injure the ordinary individual, they must pay compensation fixed by an arbitrator to be appointed by the Minister. This principle should be introduced in all legislation which gives compulsory powers. We must remember that it has been laid down in the courts that while a thing done by one person may cause only a little annoyance it may be unbearable if done by many. What is contemplated now by this company operating so widely with effective powers of compulsion is similar to the activities of a number of individuals working together. I submit it would be a sound principle in legislation, for this company, which is being given a vast amount of money, over £750,000 of public money, and being given these compulsory powers, to be made liable to compensate the ordinary small man for injury done by them, even though the state of law at the time would appear, in view of the evidence of engineers and geologists, to make it doubtful whether he might be able to recover in the courts. I ask the Seanad to accept this. There are a couple of minor criticisms I would like to make of the Minister's amendment; points on which I am sure the Minister would be likely to meet me.
First of all the Minister's reference to paragraph (d) of Section 17. If you refer to paragraph (d) it is merely dealing with lands which are vested in the board. It says that it is the duty of the board to manage, develop, and work bogs and other lands vested in the board. As I read it the words "vested in the board" qualify "bogs and other lands," so that the Minister's amendment would be merely in respect of work done by the board on lands vested in them. They have power to build bridges over canals and that would involve building foundations on the canal company's land. Therefore the Minister's amendment should be worded to ensure that the board would be liable when performing their duties, whether on land acquired by them or on other people's land. That is a minor matter. Another matter I would like to impress upon the Minister is the importance of an arbitrator. I have been impressed by the fact that where you are dealing with expert witnesses an arbitrator is often a more satisfactory tribunal than a court. You can choose a person who is known for his expert knowledge. In the case of the Barrow drainage, Professor Rishworth was the arbitrator and he was probably more expeditious and satisfactory than a court. I ask the Seanad to accept the broad principle I have expressed and secondly, if the Seanad does not accept it, I ask the Minister to modify his amendment in the two ways I have suggested.
With reference to paragraph (d) of sub-section (1) of Section 17, I cannot, frankly, follow the Senator at all. Section 17 sets out the duties of the board and these duties are of a definite character. They have a duty to develop and work bogs and land and they also have a duty to sell turf and foster the use of turf but these other duties have no relation to the management, development and working of bogs and other land and no question arises of interfering with other people's property in the manner to which the Senator referred. It is certainly not intended to give a claim for compensation where the board interferes with other people's interests in the discharge of the board's duty to sell turf or foster the sale of turf. I would like to get a clear statement of the precise difference between the Government amendment and what the Senator has in mind. I do not profess to have any legal training. If I enter into legal technicalities, I fear I will be lost. Clear instructions were given to the draftsman——
I have never found the Minister lost on any subject yet.
The instructions which were given to the draftsman were that he should prepare a Bill which would give this board the power to acquire compulsorily whatever property they needed for the carrying out of their job. These instructions were given, because any Government concern going out to buy property in the open market will always find that it will be salted, consequently it has to be able to protect itself by retaining powers of compulsory acquisition subject to the fixing of compensation by an arbitrator. Where, therefore, the board exercises compulsory powers in any way under this Act, there is ample provision for the fixing of compensation by an independent arbitrator. Senator Kingsmill Moore raised the question of interference with property other than interference covered by the Act. At that time, I did not appreciate that the board was in a different position from a private person. It seemed to me that if the board acquired property, it would be in the same position as a private person, if it interfered with the rights of an owner of property adjoining the lands or bogs which it acquired. But, looking into the matter, I found that this board was in a somewhat different position from that of a private person. The different position was this: if it interfered with anybody's rights outside the Bill, the person interfered with could not take an action against the board unless it could be proved that the board had acted negligently or carelessly. Having examined the matter, I considered that it was, perhaps, undesirable to leave it like that in the particular circumstances of this company. I use that phrase to show that I am not trying to establish a precedent for any other Government undertaking that may be established and given compulsory powers of acquisition.
I decided that it was not desirable to put it in a position different from that of a private individual or enterprise so that persons affected would not have the same rights against it. That is why this amendment has been tabled. That covers adequately, I think, cases of damage not associated with the board's compulsory powers of acquisition, but Senator Kingsmill Moore wants to go further than the proposal in the amendment by ensuring that the individual concerned will get compensation to be determined by an arbitrator appointed by the Minister. I think that is going too far. If you ask me what are the rights of private persons against each other in respect of the kind of interference contemplated here, I cannot answer that legal question. What I am proposing is that the board will pay compensation admitted by both sides as equitable, and if they do not admit liability, that the aggrieved party may go to the courts to get the issue determined.
I think that the amendment is reasonable. It is confined to giving a right to take an action for damages to a person whose rights are interfered with by the board. There will be no action in the courts unless the board resists the claim when it is made. If the board admits the claim, and agrees to settle it by the payment of compensation, there need be no recourse to the courts. If the board resists the claim, then it will be because it denies that there is any basis for compensation, and I do not think it reasonable in those circumstances, to ask the board to pay compensation until the matter has been decided by a court. Therefore, the person whose claim is denied by the board will have to proceed in the ordinary way in the courts. As I understand Senator Kingsmill Moore's amendment, it presupposes that there will be payment of compensation by the board and that the only question to be decided is how much should be paid. That is going farther than I would suggest we should go. I would suggest that the board has the right, first of all, to consider itself whether there is justice in any claim against it, and, if it considers there is justice in it, it should meet it. If it does not consider there is justice, then the matter can be decided by the courts. I feel that to go further in the direction contemplated by Senator Kingsmill Moore's amendment would be going too far.
In that case, I would like to be given permission to withdraw my amendment, but before making that request I would like to make clear one small point. One of the difficulties about the Minister's amendment is that it refers to damage caused by the action of the board in the exercise of powers on land actually vested in it.
Is the Senator referring to Section 17?
Yes.
I do not think that is a correct assumption. It is proposed that the duties of the board are to develop the bogs and lands vested in it. In the course of those duties, the board may have to interfere with other property and other rights. In that case the provisions of the Bill will apply, but we are giving the board the duty of developing only its own bogs.
The Minister and I are at one as to what it is desired the board shall do, but I wonder if this amendment meets the situation.
I think so.
I see the Minister's point, and it is likely that he is correct.
I feel quite certain that the amendment covers cases of damage done to property of which the board is not the owner.
I would like to be allowed to withdraw the amendment and also all the other amendments standing in my name and containing the same principle.
The amendment is rather puzzling to me in some respects. In fact it does not appear to be necessary at all. Since, according to Section 31, the board is bound to issue notices and advertisements the amendment could be summarised by stating that "if the board acts illegally"— that is if it does not act in accordance with the provisions of Section 31—"any owner of property affected by the actions of the board may maintain an action for damages".
On the other hand, if the board acts in accordance with the provisions of the statute, and issues the required notices compensation may also be claimed. The amendment assumes that as the Bill stands if the board acts illegally there is no room for an action against it.
That is not correct.
But that appears to be the effect of it. If any board acts illegally, there would be an action against it. Here it says that if the board acts without complying with the provisions of Section 31 then an action for damages can be maintained.
If the board acquires somebody's property, or interferes with somebody's rights, it must give public notice in advance of its intention to do so. It must deposit plans and particulars and proceed precisely in the manner set out in the Bill in each case. The compensation is determined under the relevant statute, the Land (Assessment of Compensation) Act of 1919. What was mentioned was damage done to somebody's property that could not be foreseen—a case in which notice could not be given—damage which might emerge only some years after the work had been done, and of which no notice to interfere, or notice to acquire could have been given. It was to give a right of action for damages in such cases that this amendment was put forward. Without this amendment, no action would lie.
Amendment put and agreed to.
Amendments Nos. 5 to 7 inclusive not moved.
I move amendment No. 8:
In page 9, Section 23, in line 56, to insert after the word "permanent" the word "new".
I am prepared to accept that amendment.
Amendment agreed to.
I move amendment No. 9:
In page 11, Section 24, in line 3, before the word "to" to insert the words "(on producing his authority if so required)".
I am not prepared to accept this. Perhaps the Senator would accept my assurance that the Turf Board will, in fact, give an authorisation to employees who might enter on lands, but the acceptance of this amendment might have complications of an unforeseeable character.
There is a difficulty in that. It is the penalty clause that is worrying me. I put my amendment rather deliberately in the first sub-section. It was the second sub-section that was worrying me. I tried to draft it into the penalty clause, that the person would not be liable to a penalty unless the authority has been shown to him, and I found it was impossible to draft it like that. I think it is wrong that a person should be liable to conviction under the second sub-section if the officers of the board had not produced the authority.
The only objection I could anticipate from the Minister was that the board might make the case that an officer going on the lands could not find anyone there to whom he could show the authority. That is why I put in the words "if so required".
But the amendment said merely "producing his authority." Would that be fulfilled if he produced it in a field and waved it in the air, with nobody within ten miles of him?
But I have "if so required". If he were met on the lands and required, and did not produce the authority, I do not think the Minister would get a conviction.
Is that not the Senator's safeguard—that, in fact, a district justice will take that into consideration? If the farmer kicks the inspector off the land and the district justice decides that the farmer was under a reasonable impression that the inspector was a trespasser and had produced no authority, he would treat the case accordingly.
How?
By dismissing it.
He could not do that.
Well, he could use the old stand-by, the Probation of Offenders Act.
I object very strongly to that. The application of the Probation of Offenders Act is a conviction and I object to being convicted for doing something I did not know was wrong. I do not see why a person should be put under the pain of being convicted for kicking someone off his land. There are certain people who might be easily recognisable as the local officials of the board, but there are plenty of other people who might not be so recognisable. I suggest that it is not going to hamper the board in any way. If the Minister does not like the words "so required", he might make it "so requested".
I considered the point after the Committee Stage, but had to come to the conclusion that it was impossible to get a really satisfactory amendment.
The Minister ought to find out what some of his colleagues are doing, as he voted for some of the measures going through the other House. We have heard a good deal about the need for uniformity. In the Local Government Bill, which has passed its Report Stage, and for which the Minister voted last night, there is the following provision, in Section 53, dealing with entry on land:—
"(1) Any officer or agent of a road authority who is duly authorised ...may enter on any land....
(2) A person entering on land may do thereon all things reasonably necessary...
(3) Before a person enters under this section on any land, the road authority...shall either obtain the consent (in the case of occupied land) of the occupier or (in the case of unoccupied land) of the owner or shall give by post to the occupier or owner (as the case may be) not less than 21 days' notice of the intention to make the entry."
That is quite practicable, but I explained here on the Committee Stage that there were difficulties in providing for that in this case. These officers, surveying land for the purposes of the Turf Board, may not always be in a position to know when they are passing from one person's holding to another. In fact, it may be that inspection of one person's holding may show the necessity for the inspection of another. The Senator need not be afraid that the board will abuse its powers. They would authorise their inspectors properly.
May I suggest a method of getting out of it? In sub-section (2) of Section 24, we have "Any person who obstructs, prevents, or interferes". Would the Minister agree to put in "knowingly"? Then the district justice would have discretion to dismiss the case.
I understand that there is a strong objection by legal people to that word, as it puts on the court the obligation of determining not what the person did but what was in the person's mind when he did it.
If the owner of the land administers his toe, it is pretty obvious that he knew he was going to do it. The only thing that should have to be proved is that he knew it was an officer of the board.
Amendment put and declared negatived.
Amendments Nos. 10 to 13, inclusive, not moved.
Question—"That the Bill, as amended, be received for final consideration"—put, and agreed to.
Agreed to take the Fifth Stage now.
Question proposed: "That the Bill now pass."
Business suspended at 6.10 p.m. and resumed at 7.10 p.m.
On the Second Reading of this Bill I took occasion to to make a few remarks upon the dangers and difficulties which seem to me to be inherent in any system of Government-controlled companies and boards. I said then, and I now repeat, that I thought it was too soon for any student of political science to form any concluded judgment on the balance of the merits and demerits of such a system; but that it was not too soon to try to perceive some of the pitfalls which beset such a system in order to avoid them, and give the system a fair chance of proving its capacity. When the Minister came to reply, he accepted broadly the justification for my remarks, and on his part he introduced several qualifications by way of counter-balance. I would like to say this, that I think his qualifications were both accurate and weighty, and I accept them fully and any remarks that I then made should be taken in the light of the Minister's reply. I should also like to say this, that the way in which the Minister has met in Committee and on Report certain amendments designed to remove features of the Bill which I thought undesirable has also convinced me that these features in the original draft were the result of oversight and not the result of any Machiavellian attempt to interfere with the rights of other bodies or people.
Having said that, however, and with those qualifications, I think there is nothing that I have to add to or subtract from what I actually did say upon the Second Reading. But I find myself in the rather unusual and equivocal position of having to answer criticisms upon a speech which I did not make, which I did not intend to make, and which, if I had made it, would have been directly in conflict with opinions which I have expressed not once but several times in this House. If Senator Ó Buachalla had not omitted to draw his gladiatorial sword until I had left the House—I was here for nearly all his speech and only left on other business when I thought he was concluding—I would have had an opportunity of correcting, at an earlier stage, any misconceptions under which he may have been labouring. Perhaps he was not here when I was speaking, and relied on the reverberations of the ante-chamber or of the Restaurant, which are not always accurate echoes of what occurs in the House.
Or the Bar?
I think that is one portion of this House that Senator Ó Buachalla has never seen, and I have been careful to exclude it. Perhaps I was not very distinct when I was speaking, or it may be that my words were not adequate to convey my meaning, or perhaps Senator Ó Buachalla may be a little bit hard of hearing; but, whatever the reason, it is clear that though my words may have impacted on his ear drums, they did not convey their intended meaning any further. In so far as Senator Ó Buachalla's speech consisted of a personal attack on myself, I do not propose to answer it. In so far as it purported to represent and, in fact, misrepresented what I had actually said, I will leave the matter to the impartial verdict of the Official Reports.
But, in so far as it implied that members of this House are to be confined and restrained in their, criticism of Government policy or Government measures, I think it does call for one or two words of comment. Parliamentary government is government by discussion and criticism, and nobody understands that more fully, or honours it more scrupulously, than the Minister whom we now have the pleasure of having before us. I have noticed that the Minister certainly does not at any time resent criticism. If he did resent criticism he would not be a statesman, because it is the business of statesmen to welcome criticism in so far as it is justified, to accept it when it is well-founded, to answer it when it is erroneous; in so far as it is dishonest to expose it but to resent it, never. Resentment of criticism is always a failing. In this imperfect world there will be those who may labour under a misconception of the origin of such hypersensitivity attributing it to an incapacity to understand the criticism or an intellectual inertia which shuns the labour of finding the correct answer.
On a point of order, what relationship has this to the Bill? Surely this is a lecture on statesmanship and a lecture on what statesmen ought to do, but everyone else is being castigated and I do not see the relationship between it and the Turf Bill.
Perhaps I might present to the Seanad the manner in which this matter was put before us originally. Senator Ó Buachalla said that the members of this House were not to be free to criticise Government measures.
Surely I never made such a statement.
If I may refer to the Official Report, I will give the Senator his actual words. His speech was made in regard to certain matters in relation to which as I was not in the House I can claim the right to reply. Before I was interrupted I was going, in my next sentence, to make it clear that I was not attributing Senator Ó Buachalla's resentment to any of the three points in relation to criticism which I have made just now. It is quite obvious that on these occasions it is an endearing if excessive Party loyalty which makes Senator Ó Buachalla scurry to the defence of a Minister before the Minister is attacked, even a Minister like the present Minister for Industry and Commerce, who is well able to look after himself in the House. He also—and this is a matter which I deprecate—apparently finds himself unable to regard as either rational or sincere the opinions of anyone who does not accept fully and completely all Senator Ó Buachalla's political Bible from what I might call its traditional Genesis to its still unpublished Revelations. That, I think, is very unfortunate, because if we are to work here it is vital that we adopt, when it is necessary, constructive criticisms. Since I have been a member of this House I have learned a great deal and have been informed and assisted by the view expressed by members on the other side of the gangway and that has influenced me in many ways in the application of political thought. It is necessary that we all should do that and, as Senator Ó Buachalla knows, the original speech I made here was an abstract speech, and if he imagines that I was getting at any particular individual in that speech he is very much mistaken.
I think I am entitled to spend a few minutes in making some comments on the speech we have just heard. If there is one thing in which I believe it is freedom of speech. I am sure there must have been occasions in this House when certain speeches and statements were made which I would much prefer had not been made, particularly in view of existing circumstances, but on the matter of principle I will give first place to no man in my loyalty to freedom of speech.
In this Bill as in other Bills we were faced with the introduction of a new type of industrial or commercial organisation. The introduction of that type of organisation is looked upon with a certain amount of suspicion in some quarters. I do not question the right of any man to suspect the introduction of that type of organisation and I do not question the right of any man to criticise the method of appointing members of the boards that will be entrusted with the working, and the managing of these organisations. Senator Kingsmill Moore made a certain speech and I want to assure him that I was present during the whole of that speech. I may have misunderstood him. I do not think so. Anybody looking over the reports of the proceedings of that same evening will find that I was misunderstood myself and that that misunderstanding led to a certain Senator, a man whose friendship and ability I appreciate very much, making a charge against me which was not sustainable. Things like that do happen. But will anybody say that my speech was unfounded when I quote the following words which were used by Senator Kingsmill Moore in his speech on that occasion. He said:—
"People are apt to be blind to the deficiencies and acutely aware of the merits of those whom they like, and the scales will be weighed in favour of those who are most congenial to the people who have the appointments even though less individually qualified from a purely technical view of efficiency."
I stated on that occasion that there was an implication in the Senator's speech. Those are the words he used and I leave it to the House to decide whether in view of that statement and the other statements which occurred in the course of the Senator's speech the criticisms I made were justified or not.
The Bill which the Minister has now to administer is a Bill which in my opinion holds tremendous possibilities for the country. I do not quite know if the Minister or anybody else has tried to calculate the measure of the power he has got in his hands. If he did it would be very interesting from the scientific point of view. It would be interesting if he were able to tell us what there is in the bogs of this country that can be turned into power and utilised by the people of the country for the work of the nation. Whatever the Minister may have to say about the Bill I think he can find no complaint with the manner in which it was treated here even by people who are looked upon as unfriendly critics such as Senator Kingsmill Moore. It is only by the clash of men's minds that you can get opposition.
If we are going to be so sensitive and considerate for Ministers or Ministerial policy as not to say what we think, it is going to be a hopeless mess. In that position we will give the Ministers their Bills and the Ministers themselves will be the first to discover the flaws. My view of this measure which the Minister has piloted through both Houses is that there are very great possibilities for the future of the country depending now on the manner in which it is utilised and the people who are going to be charged with the responsibility of making it operative. If you got a group of people together of the calibre of the Minister—and he has plenty of faults as, I am sure, he is aware, as the rest of us are aware of our faults—on the board, it is very difficult to see the limits to which this measure could carry the country. The first step which the Minister has to take to ensure that the nation will get the most out of this measure is to get the best brains in the country to administer it. Anything less than the best personnel will not be fair to the nation. I hope that this is not regarded as a Party measure. It was not treated in that way in this House nor, so far as I know, in the other House. It will be the possession of the country to-day and to-morrow. It is an instrument by which life here may be made better and our resources developed to the full. To get a job well done, the best brains should be employed and, in this case, persons with imagination, drive and industry will be required. The whole development of our bogs will depend on those people. It will also depend on the machinery which those people choose. Those who constitute the machinery will be of the same type as those who choose it. If they are mediocre persons themselves they will choose persons of that type. If you have in the management persons of real ability, they will obtain the services of persons of capacity. It is only persons of real ability who are judges of real ability in others. Going down the scale, a great deal of the success of the undertaking will be contingent on the output from the people employed on the bogs.
The cost of the power to be provided by the fuel produced in the bogs will depend on the output of the individual worker. The Minister expressed the view in connection with industry that, if industrialists were to do their job as well as the nation was entitled to expect, they would have to work hard, be efficient and produce wares which would compare favourably with those produced elsewhere. In our bogs, the output per day will have to be equal to the best in any other place. That must be the aim. I have no doubt about the physical capacity of the men in this country to do a good day's work. They can compare favourably with men elsewhere, but I do not think that we can expect from those men a high output per day unless they are reasonably paid. The people who are choosing the material must realise that. Labour must be paid for its hire. All that is part of the problem.
I have high hopes of the good which will flow from this measure. It would be difficult to visualise all the good it can do the country. I doubt that even the Minister himself is fully aware of its possibilities. He does not, in my opinion, lay sufficient stress upon one aspect of this scheme of development. I think that that is because his intellect has been developed on the industrial side owing to the fact that he has been charged with handling that aspect of activity by the Government and that rural activity has not, accordingly, been given very much place in his general make up. Others of his colleagues are entrusted with that responsibility. The production and marketing of the power we are to get from turf is only part of this great development. A day will come when the production and marketing of turf will lessen and something else much greater will emerge. The future of the undertaking will depend very largely on the way in which the scheme is planned right from the beginning. I hope the whole problem will be regarded in that light. If it is, somebody will say of the Minister in this regard, whatever they may say of him in other regards, that he "builded better than he knew".
I should like to add a comment with regard to the development of our peat resources and the problem of meeting the country's needs from those resources. Apart from what Bord na Móna may do in the areas in which they are to develop those schemes, I think they should give attention to obtaining greater supplies of fuel than we have been able to secure up to the present from our bogs. There can be no real fuel security until we reach a stage when we shall have one year's supply in reserve. In areas where turf is used as a fuel, no provident farmer is without a reserve which will carry him on until February or March of the succeeding year, at least. That is always the aim in my district and in the areas around. I was down in Clonsast with my colleagues. I saw the reserves of fuel there. I was through the park recently. To my eye, the stocks there are considerably reduced. It would be disastrous if the country found itself without any reserve of fuel and with very bad weather in the early part of the year. We might be left without the means of carrying on our everyday life. Bord na Móna should concentrate on that problem, apart from what is to be done in the areas to be dealt with under this Bill. It should be set the task of encouraging turf production in the bog areas of Leitrim, my own county, and other such places. They should be encouraged to go in for greater production on the undertaking that supplies will be taken over, stacked by Bord na Móna and used as reserves. As I argued with the late Mr. Hugo Flinn, an attitude of mind has been created towards the burning of turf in our towns and cities which is quite understandable. The emergency situation demanded that anything which would burn should be got out and sent into the cities and urban areas. We have had no proper survey made to show where the really good turf deposits are.
But, if you are able to carry over one year's fuel in advance, you can survey your ideas and can ensure that only the best fuel is brought to the towns and cities. That cannot be done until you build up your reserves. When we come up from the country, and go into hotels and other places and see the kind of fuel they get, we are surprised that they take it, because we would not accept that quality in our own homes. Indeed, we would hardly take it out of the bog.
Now, that is a situation which can be corrected. It could be overcome if Bord na Móna adopted the suggestions which I have made. No doubt it will require an expenditure of effort, but I think that the effort would be well worth while. It is an urgent problem —a problem which we must face, to establish the good name of our own native fuel. I believe that if we do that, we are assured of a great future for this country. We must aim at a better quality fuel which will convince the people in the towns and cities that they must use it in preference to anything else offered to them.
I cannot let this occasion pass without expressing appreciation of the way in which Senators were treated on their recent visit to the bog. Many Senators had their eyes opened when they saw conditions on the bogs for themselves, and I feel that their visit to the bogs made the passage of this Bill easier. I feel also that if Senator Kingsmill Moore and Senator Ó Buachalla had joined us in that visit we would not have had such long contributions to the debate from them.
I would like to say to Senator Kingsmill Moore that our appreciation was not due to either the food or the drink which we received on the bogs. We were informed and educated by the leaflets and diagrams which the Turf Development Board supplied to us. We were given maps and details of the surveys of the general conditions prevailing in each bog and it is a great pity that every Senator could not have availed himself of the invitation to see the work for himself.
I do not know whether it was the Minister or the Turf Development Board who arranged the visit of members of the Seanad, but it was a very wise move. It shortened the time which the House would otherwise spend in considering the Bill. I was very glad to hear Senator Baxter expressing the opinion that the burden of turf development in this country depended very largely on manual labour. That being so, we should recognise our duty to reward manual labour properly, so that we could get the best possible output. It is not very usual for Senator Baxter to take that line.
What? You never heard me say anything to the contrary.
It is a good augury that people are beginning to recognise the necessity of paying a living wage to those who do the work, and, to that extent, I thoroughly agree with Senator Baxter. I hope that Senator Counihan will take the same view on other subjects nearer home. I would like to say that I was perfectly satisfied that the people responsible for the employment on the bogs and the conditions I saw prevailing there, are enterprising people. If there are complaints that output is low, labour conditions should be closely examined, but I am satisfied, from what I saw, that labour conditions on the bogs are not bad.
During our visit to the bogs, I had conversations with the ordinary men working there, and I think it is a healthy sign and a good sign, that they expressed their satisfaction. I hope the standards prevailing on the bogs will be recognised outside the production of turf—in agriculture, and in industry generally. My purpose in speaking now is to express my appreciation of the effort that was made to enlighten the members of this House by enabling them to see these bogs in operation.
I have an appeal to make to the Minister. That is to extend the briquetting scheme. I know that the process may be costly—more costly than the production of ordinary turf— but we need the briquettes and we must see that grates are installed which are suitable for turf burning. I would ask the Minister to bear this suggestion in mind. Burning ordinary hand-won turf in Dublin tenements is often a terrible problem when you have to use grates which were never intended for turf. The people who have to use those unsuitable grates deserve every sympathy and the Minister should leave nothing undone to see that proper grates are provided as soon as possible.
In the course of the discussions on this Bill many references were made to the board and to ordinary business concerns. As a business man, I would like to add my meed of appreciation to those who gave us the opportunity of paying a personal visit to the bogs. Wonderful arrangements have been made on the bogs and those responsible for them deserve every tribute. I am glad to say that the men who do the job are comfortable and quite happy with their conditions.
It was obvious to us that those who have organised the production of turf were born organisers. We had only to keep our eyes open to realise that. What impressed me even more than Clonsast was the Kildare hand-won scheme. Its obvious efficiency was a tribute to the engineers, and those supervising the engineers, and I came away with the feeling that we ought to take every measure to ensure that the development of our turf resources should be a permanent part of our national economy, no matter what its cost. In Kildare, we saw men housed under proper conditions—conditions which were a real delight to inspect. We inspected carefully all the arrangements which had been made for their feeding and general comfort. It was good to see so many men working under such good conditions instead of watching them getting aboard emigrant ships or living in the slums of our cities.
It would be sound national expenditure to develop this scheme to the fullest extent and to make bog development a permanent part of the national economy.
Senator Kingsmill Moore referred to the difficulties associated with the conduct of economic activities by Government boards. The fact that such difficulties exist will not be denied. I am sure, however, that it will be agreed that an enterprise of the kind contemplated in this Bill could not be well carried on except by a State organisation. That being agreed, it is clear also that that State organisation must be given reasonable powers and facilities to do the job well. What is the main difficulty associated with the conduct of economic activities by Government companies? It is, I suppose, the absence of the profit motive, which is the driving force behind private industry. If the absence of that force, that impetus towards efficiency and economy in operation, is to be offset, it can only be done by securing for membership of the board and on the staff under the board people with the necessary enthusiasm for the work upon which they are engaged. It is not always possible to obtain that. Excellent administrators, engineers and technicians of one kind or another are available who will take one job or another, according to the size of the salary and the conditions of employment offered to them.
In the case of the Turf Development Board—which will disappear upon the enactment of this measure, to be replaced by Bord na Móna—we were fortunate in securing, not merely on the board but on the staff of the board, numbers of competent people who are enthusiastic for their job. The spirit which the members witnessed among the staff at Clonsast and the other camps they visited was attributable, I think, to that fact. The members of the Turf Development Board are people with other interests, which are, from the point of view of their personal livelihoods, far more important to them; yet they undertook the duties involved in membership of the board in the same spirit in which men joined the L.D.F. or other organisations during the war. They did it with the main purpose of giving public service. They devoted to the duties of the board not merely a great part of their business hours but also a large part of their leisure time and their week-ends. Perhaps it will be illustrative of the spirit of the board when I mention that, in the case of at least one member to whom I mentioned the possibility of an increase in the small fee which the members of the board now are paid, I was told that, if the fee were increased, the member would resign. His attitude was that nobody would believe that he was on the board for the fee he got so long as the fee was small, but they might misunderstand his presence there if the fee were large; and he would continue on the board only so long as there was no doubt that his membership arose solely from the desire to give service in that manner.
The board were particularly fortunate in building up enthusiasm for their job amongst the technical staff and amongst the workers whom they employed. I agree entirely with Senator Foran that an enterprise of this kind cannot be successful unless there are harmonious relations between the executive officers and the manual workers. That must be based upon fair dealing: it cannot be obtained otherwise. That situation exists amongst the staff of the Turf Development Board and I hope it will continue to exist in the staff of Bord na Móna.
Senator Baxter referred to the desirability of having a year's stock of turf. The advantage of having such a reserve stock is obvious. However, I want to make it clear that Bord na Móna, the organisation to which this Bill refers, will be responsible only for the mechanised turf production scheme. The production of turf for the national pool, which was begun during the emergency and which is necessary still, is mainly undertaken by county council organisations. The Turf Development Board, at the request of the Government, took on in addition to the operation of the mechanised bogs, the responsibility for organising, developing and supervising the hand won turf camps in Kildare and the adjoining areas. Their contribution to the national pool is also considerable. If the fuel emergency continues for any length of time, it may be that some steps will have to be taken to relieve county councils in regard to responsibility for turf, so that the county council staffs can devote their time to their ordinary duties. For the time being, however, it is necessary to rely on them for the bulk of the turf that comes into the national pool, to supply the turf ration in the eastern areas.
It would not have been practicable, at any time up to the present, to have produced such an excess of turf through their organisation as to make possible the accumulation of substantial reserves. Some reserve was maintained each year, and some reserve will be maintained this year, but it would not in itself be sufficient to maintain the ration over a protracted period, if for any reason production in a particular season should not be practicable. The activities of Bord na Móna will be confined to the production of turf by mechanical means and, in so far as a substantial proportion of that turf will be used as fuel for electricity generating stations, there must obviously be substantial reserves accumulated, so that the production of electricity from the stations will be dependent in no sense upon conditions in the bog, whether weather or other conditions, that might interrupt the continuity of production.
Senator Foran referred to briquettes. It will be the responsibility of Bord na Móna to endeavour to improve the briquette-producing process. I would not be frank with the Seanad if I were to pretend that that process is perfect yet. The actual manufacturing of briquettes from milled turf is quite satisfactory and little improvement in that process is likely, but all the problems involved in producing the milled turf and in transporting it from the bog to the briquetting factory have not been resolved yet. The board is working on that task and will have the responsibility for endeavouring to solve those problems. I am informed that this year, probably due to the favourable weather conditions and the application of the experience of the board in other years, the production of briquettes is proceeding in a very satisfactory manner. The briquetting factory was brought into production much earlier than normal and consequently the output of briquettes will be higher than in previous years, assuming that the season continues favourable. That is important, as these briquettes are used at the moment entirely for industrial fuel and form a very essential part of our supply of industrial fuel.
Before concluding, there are one or two minor matters to which I should like to refer. They are matters which were mentioned during the discussion in Committee and which I promised to look into, but which, in my opinion, did not call for the production of amendments by me for the Report Stage. Senator Baxter referred to the obligation of the board to work the bogs in such a manner as to leave a bog, when exhausted for fuel-producing purposes, suitable for afforestation or agricultural purposes. I am satisfied that there was no need to amend the Bill to ensure that result. In Section 17, the Bill places, as a duty on the board, the management, development and working of bogs and lands vested in it. That is not merely an empowering section. Its purpose there is not merely to say that the board may do these things. Its purpose is to give these duties to the board, to make it mandatory on the board to manage, develop and work these bogs to the best advantage, and it would be a dereliction of duty on the part of the board, according to my interpretation of the Bill, if it failed so to organise its production schemes and to manage the bogs as not to leave the land at its highest value for whatever purpose is more suitable when the turf production ceases.
I think it was Senator O'Dea who inquired whether the definition of "land" in the Bill covered bogs. I have had the points examined, and I am assured that the definition covers land of all kinds.
I do not think I asked that question. I think that what I was afraid of was that the Bill did not give sufficient powers to the board to regulate its procedure.
Well, perhaps, I may be attributing to Senator O'Dea a query that was put by some other Senator. I think it was Senator Sweetman who made the suggestion that the board should be under no obligation to offer the cut-away bog, the reclaimed land left after the turf production work had ceased, to the Land Commission in the first instance. I was assured that it was not necessary to put any statutory obligation on the board in that regard, because the obligation is on it to dispose of that land to the best advantage. There will, normally, be consultation between the board and the Land Commission, and, in fact, so far as the Turf Development Board is concerned, all its activities in relation to the acquisition of bogs and the development of bogs are undertaken in consultation with the Land Commission. There will, normally, be consultation between Bord na Móna and the Land Commission as to the disposal of land which the board no longer requires. If the Land Commission requires the land it will have the opportunity of obtaining it. The obligation on the board will be to dispose of the land to the best advantage.
Senator Ryan referred to the phrase "in law or in equity". I am not going to offer a personal opinion as to the necessity for the double provision, but the Parliamentary Draftsman said to me that, while the phrase might be a little over-cautious, he would not agree that it was altogether meaningless. He contended that there is a real distinction between legal and equitable remedies, despite the amalgamation of the courts, so that the safest thing to do is to leave the Bill as it is.
These were the only points mentioned in Committee which I undertook to examine, and which did not come forward again on the Report Stage. This is now the Final Stage of the Bill. The board is being given a great responsibility. It is being asked to undertake a very great enterprise, and I am sure I am expressing the hopes of all the members of the Seanad when I say that the success of that enterprise will be a great contribution to the national economy.
Question put and agreed to.
Ordered: That the Bill, as amended, be returned to the Dáil.