I was speaking yesterday of the desirability of allowing certain lotteries here for charities in Northern Ireland. If the House approves of that principle, a section of this kind is clearly necessary. I hope the Minister will approve of it. As the amendment stands, it clearly cannot cause injury to anyone. The fact that the documents are sent out of the State does not, in itself, make it illegal, provided that no tickets for this lottery are sold outside the State.
Gaming and Lotteries Bill, 1955—Committee Stage (Resumed).
Debate resumed on amendment No. 36:—
To add a new sub-section as follows:—
(3) This section shall not render a lottery which is promoted within the State and in respect of which no person outside the State is entitled to purchase any ticket, counterfoil, coupon or chance unlawful by reason only of the fact that documents, books, records, or other papers are transmitted outside the State to the trustees of or to the object of the charitable or philanthropic purpose or purposes for which the lottery is promoted: Provided always that such lottery is duly permitted or licensed under this Act. — (Senator Cox.)
A lottery may be promoted here to help the institution the Senator has in mind. The only operative part of this proposed new sub-section appears to me to be the statement that the documents may be transmitted outside the State. I think the records must be available here for examination, and subsequently they may be transmitted outside the State, but whether you need to make legislative provision for such transmission, I do not know. The statement made yesterday, that a lottery may be promoted inside the State for this purpose, seems to cover this point, unless the Senator means that the documents would be kept outside the State and would not be available for examination inside the State — and I take it that the Senator does not mean that.
No. If it were to commend itself to Senator Hayes, I should be agreeable to amend my amendment to read "provided always that they would be available for examination within the State".
Is that necessary? If they would be available, presumably their transmission outside would not be illegal. Perhaps Senator Cox would give the matter further consideration, in the light of this discussion, and see whether the amendment is necessary at all. If he does not mean that the documents are to be held all the time outside the State there may be some method of arriving at a conclusion. Of course, I am not in a position to say whether a conclusion could, in fact, be arrived at.
I am not suggesting that the documents and records should not be available in this State.
Then it should be possible to arrange it.
If that were to meet the objection, I would be willing to put down a somewhat amended amendment on the next stage which would include a provision that the documents would always be available for inspection by the authorities or anyone authorised to inspect them.
If they were so available, would any amendment be necessary? Is there not power already in the Bill to allow this kind of lottery?
I have not lightly put down this amendment. I have moved it after consideration and after discussing the matter with counsel. They feel that unless this amendment is inserted it might be said that such a lottery was illegal simply because the books might be sent out for examination.
"Might be sent out"?
Yes.
We will get the amendment considered in the light of that.
I will bring forward on the next stage an amended amendment making provision that they would always be available for inspection here. I hope it will be accepted.
Very good.
Amendment, by leave, withdrawn.
Section 26 put and agreed to.
SECTION 27.
I move amendment No. 37:—
In sub-section (2), paragraph (a), line 9, after "lottery" to add "and shall be an Irish citizen ordinarily resident in the State".
With the permission of the Chair, I should like to associate with this amendment, amendment No. 38, which reads as follows:—
In sub-section (2) to add a new paragraph as follows:—
"(d) the beneficiary shall be an Irish citizen or a group of persons who are Irish citizens, ordinarily resident in the State."
The purpose of these two amendments is the same as that of amendments Nos. 40 and 41. It is really to ensure that, as far as possible, these lotteries shall be held within our jurisdiction and run by Irish nationals and controlled by people who are answerable to the authority of this State. It probably would be most undesirable to have such lotteries controlled either by aliens or by people whose period of residence in this country was short or temporary. These amendments would not have the effect of cutting off help to worthy charities in the Six Counties whether these charities be Catholic, Protestant or Presbyterian. They would not hinder the operation by a person or group of persons or by a corporate body of lotteries designed to help objects in the Six Counties. The amendments would simply ensure that such lotteries would be supervised by the State which would thus provide some sort of guarantee to the public that funds subscribed by them would be properly administered and also that the beneficiary — that is, the person or body receiving the funds — would be Irish nationals. If the beneficiary wishes to pass on the funds to somebody in the Six Counties, and if this is clearly understood by the subscribing public, then, of course, no difficulty about the Six County area arises.
As regards the amendment to Section 27, I would think it is clearly wrong to pass legislation which would preclude Irish people who happen to be resident in the Six Counties from being able to participate in such matters in the Twenty-Six Counties. It seems to me that anything like that is directly contrary to all our aspirations and ideals. I notice that the new Nationality and Citizenship Bill which has been circulated by the Government provides that Irish people in the Six Counties will be Irish citizens. It seems to be quite contrary to the ideas that Senator McHugh is putting forward.
Senator McHugh has referred to other amendments to a subsequent section. As I understand one of these amendments, that is, amendment No. 41, it relates to the beneficiary.
So does amendment No. 38.
The other amendment seems to refer to the beneficiary. If passed, I think that would directly cut out the kinds of objects which I am trying to speak for and which I am quite certain everyone in the House must have sympathy with. I should certainly like to oppose the amendment.
I want to express my agreement with Senator Cox; I think it is also the position of the Minister in this matter. What do these two amendments, taken together, mean if we assume that "beneficiary" means the person or object benefiting? It would seem that under amendment No. 38 you prevent a lottery from being run for the Mater Hospital, Belfast — which was spoken about last night and in relation to which everybody was in sympathy — or simply for the foreign missions, the ultimate beneficiaries of which are not Irish citizens at all. I do not imagine Senator McHugh wants that position but I think a combination of amendments Nos. 37 and 38 would surely give that position.
On general grounds — considering our own position in Great Britain and other places, for example — it would be rather curious for us to prevent a well-behaved person resident in this State from engaging in this business. As regards the beneficiary, it would be very difficult to determine who the ultimate beneficiary is. It would seem to be more reasonable to leave the Bill as it has been drafted — leaving the onus on the Gardaí to make it clear that the person who is running the lottery is a reputable person. I doubt that the Senator means to exclude the charities in the Six Counties or a charitable matter like the foreign missions.
Certainly I do not intend to exclude such charities. When I speak of beneficiary, I mean beneficiary actually within the State, that is, a group of persons or a corporate body answerable to this State. The ultimate beneficiary might be in the Six Counties. If the beneficiary passes on the funds and the public clearly understands it intends to pass on the funds to the Mater Hospital or the foreign missions, and so forth, that is not a matter for us.
Would that not be a curiously unworkable scheme?
It seems to me that the use of the word "beneficiary" in that amendment is to use it in a sense in which it is never used.
Amendment, by leave, withdrawn.
Amendment No. 38 not moved.
I take it that amendments Nos. 40 and 41 fall also?
Yes. I can raise the matter again on the Report Stage.
I move amendment No. 39:—
In sub-section (3), line 15, after "beneficiary" to add "except in the case of a lottery promoted for a charitable, religious or philanthropic purpose when the lottery may be held not more than once in each week, the participating fee or price or ticket not to exceed 1/- and the total prize money not to exceed £25 at each such draw".
A great number of our churches, halls, monasteries, convents, schools and colleges have been built as a result of the assistance received through raffles. One of the best known types of raffle — it is well known to members of this House — is what is called a silver circle. It is a weekly raffle. The members subscribe 1/- each week for a period of 20 weeks. It has been run in many parts of the country for a good number of years past. Under the Bill, as at present drafted, a superintendent of the Garda Síochána would not have authority to give a permit for a raffle each week. He would only be entitled to give a permit for a raffle once in six months. As an alternative, however, the promoter can apply to the District Court for permission.
Under Section 28.
Yes, under Section 28.
Does that not settle it?
It does, but I think it is undesirable at times that promoters should have to adopt the procedure of going to the District Court, when the superintendent should have the authority to permit such a raffle since the amount each week is limited to the sum of £25 and the stake is only 1/- for each member.
I should like to support Senator Walsh. First of all, it is for a charitable or philanthropic purpose. It is obviously a very small matter. I think one is going too far in a Bill like this in stopping all sorts of things which have been carried on for years and years. A small lottery for a charitable purpose can clearly not inculcate the gambling habit. It seems to be a little unreasonable that a charity organising that kind of lottery should have to go to the expense of applying to the District Court. That may be quite fair in the case of a big lottery, but, in the case of this type of lottery it seems to be quite reasonable to leave it in the hands of the Garda Síochána.
Under Section 27, the onus is placed on the superintendent of the Garda Síochána to issue certain permits. Senator Walsh is endeavouring to meet the case of charitable or church lotteries which take place weekly or monthly for certain purposes. His scheme is that the superintendent of the Garda Síochána should also have power to determine in regard to these and the scheme in the Bill is that they should be decided under Section 28.
I would suggest that it is not any very great hardship to ask that an application be made to the District Court. In effect, if the superintendent were in favour of the application, as he would normally be, if it fulfils the conditions laid down in Senator Walsh's amendment, the court would grant the application at once. It would be available for 12 months or for any period. Permission could be given to hold this particular lottery every month or every week as the applicants desired. I think this is more a matter that should be decided by the court than by the superintendent. It is not easy to decide what is a charitable purpose. That would be something for the District Court rather than for the superintendent. I think there would be no difficulty at all in getting a decision in favour of the kind of thing which Senator Walsh has in mind in his amendment and which Senator Cox quite properly supported. Section 28 makes ample provision. In fact, it makes rather better provision in a way than the amendment does for the kind of thing Senator Walsh has in mind.
May I point out that, if the amendment were accepted, the provision in regard to the division of the gross proceeds under paragraph (e) of Section 28 would not apply? I think that is desirable in the case of these continuing lotteries. I think the Senator may be satisfied that the best arrangement would be under Section 28.
In view of the fact that a charity is limited to a charitable or philanthropic purpose, it can be visualised that they would prefer to allow more than 40 per cent. of the raffle to be used up in expenses. These are local raffles and every week there is practically no expenditure whatsoever. It is confined to a village or town.
They are voluntary workers.
All the people associated with that will, as Senator Hickey says, be working in a voluntary capacity. Sometimes, in certain places, there is no District Court for maybe two months. I take it that a fair amount of notice will require to be given to the court. I do not know what the procedure will be — it has not been laid down in the Bill — as to the notice which will be required to be given to the court. Sometimes these functions take place with very little prior arrangement and there might not be time to serve the notice that may be prescribed under regulations, which, I presume, will be subsequently issued. However, I am not anxious to press the matter if the Minister considers it is more desirable that the courts should control this type of lottery. Having regard to the amount of money being spent every week on fashion competitions, crossword puzzles and the rest, there seems to be no limit to the expenditure which a person can incur.
Are we not talking about two different objects in relation to lotteries? Senator Walsh is talking about charitable institutions, whereas the Bill states it is for a group of individuals for their own personal enrichment.
No. Would the Senator look at paragraph (a).
It could be for personal profit.
No.
Amendment, by leave, withdrawn.
Section 27 agreed to.
SECTION 28.
I move amendment No. 40:—
In sub-section (2), paragraph (a), line 31, after "purposes", to add "in the State and shall be controlled, organised or administered by a person who is an Irish citizen or by a group of persons who are Irish citizens or by a body incorporated in the State".
Has the Minister any comment to make on this amendment?
We put up a similar case on the other amendments. Section 26 provides that a lottery shall not be unlawful if it is promoted and conducted wholly within the State in accordance with a permit or a licence. The licensee must be resident here. It may be necessary for the members of the Garda to inquire as to the character of the applicant, or any of the other interested parties. The court would decide for or against granting the licences. The Senator need have no fear but that the interests of all will be safeguarded by the decision the court may make.
Amendment, by leave, withdrawn.
Amendment No. 41 not moved.
I move amendment No. 42:—
In sub-section (2), paragraph (c), line 34 and lines 36 and 37, to delete "£500" and substitute "£1,000".
This matter was discussed in the Dáil and there was not agreement with the proposals then put forward. I suggest that, in the case of a charity licence, the prize money should be £1,000 instead of £500. I am aware that the Government did not accede to that then. In view of the present value of money, it is not an unreasonable suggestion. Presumably it is desired that the lotteries should be reasonably income-producing for the charities concerned. Unless the prizes are fairly lucrative, that object will not be achieved. I am bringing forward the amendment in order to have that point discussed, and, if the Government has altered its view, I think it might be wise to change from £500 to £1,000.
The Minister raised the figure from £300 to £500 in the Dáil. One of the arguments in the Dáil seemed to me to be a very reasonable one. From my own experience of lotteries for charitable or church purposes, I think that if you encourage weekly lotteries with a prize up to £1,000 you might do a great deal of harm to the charity arrangements which Senator Walsh was trying to provide for in his last amendment. By allowing certain people in bigger places and with bigger resources and more voluntary workers to offer £1,000 you might have an adverse effect on a great number of very deserving charities which could not offer a figure above £500.
Senator Hayes has explained my views. In the Dáil, I was opposed to increasing it to £500, realising that it was going to commercialise a number of lotteries and thereby deprive the local parish priest or organiser from getting subscriptions to help local objects at 1/- a week. Where you offer £1,000, what parochial lottery could compete with that; it means inducing people to give their shillings for the chance of £1,000 instead of subscribing for the object of the local "silver circle". For that reason, I opposed £500 in the Dáil. I am personally against — and so is the Government — increasing the commercialising of lotteries, because it would have a very bad effect on the small lotteries in rural areas.
In view of that, I cannot press my amendment, although I feel that the Minister is making a mistake. When the Minister spoke of commercialising, perhaps he used that word for lack of a better word. I do not think there is anything commercial in any of the lotteries. However, I wish to withdraw my amendment.
There are many people prepared to join the work of organising lotteries.
Amendment, by leave, withdrawn.
I move amendment No. 43:—
In sub-section (2) to delete paragraph (d) and substitute a new paragraph (d) as follows:—
(d) Where the prizes to be awarded are of fixed sums the value of each prize shall be stated on every ticket or chance; but where a percentage of gross proceeds is allocated as prize money whether such percentage is fixed by reference to the gross proceeds of the particular lottery or any previous lottery, the percentage of the prize fund only need be stated, with the proviso that where in any lottery the amount of the prize fund exceeds the amount mentioned in the next preceding paragraph the surplus shall be applied for the benefit of the charitable or philanthropic purpose for which the lottery is promoted and the prize fund shall be limited to the amount so mentioned.
This is rather a legal amendment, but one which I think is really necessary and I hope the Minister will accept it. In the preceding section, we have been speaking of a fixed sum of £500. Where the lottery takes the form of a percentage — provided it does not offend against the Totalisator Act — it is necessary to have a provision such as is contained in my suggestion. It merely indicates to the people who get the tickets what they would have; and if the result of the division of this unfixed or this unascertained sum results in a prize that would exceed the fixed amount the surplus would go back into the charity, so that the Act would not be broken.
I regret I am unable to accept the amendment. From the information in my Department, I am satisfied that pool promotions, which are suggested in this amendment, could lend themselves very easily to manipulation and fraud on the part of the promoters. Lotteries with prizes, the amounts of which are fixed in advance, are being permitted under this Bill and pool promotions are prohibited. I am not prepared to have pool promotions.
I am hopeful that police supervision of these lotteries will be kept at a minimum and that the police will need to act only where there are complaints of sharp practice. If pool promotions were permitted, the need for examining accounts would be much greater and more difficult and would require to be carried out in greater detail. We do not want to see established an elaborate State machinery for supervising lotteries.
It seems to me that it would be fair and reasonable as an amendment and that it is necessary, and also that it would not entail any great supervision; but if the Minister does not accept it, I must withdraw it.
Amendment, by leave, withdrawn.
I move amendment No. 44:—
In sub-section (2) to add a new paragraph as follows:—
(f) after the provision of the prize money and of the expenses of promotion including commission, not less than 25 per cent. of the gross proceeds shall be available for the charitable or philanthropic purpose for which the lottery is promoted.
If there is not some supervision of this kind, it might easily result that, after payment of expenses and after the provision of the prizes, there would practically be nothing left to the charity. If these lotteries are to be safeguarded to the full extent, it is necessary to ensure that the charity will, in any event, benefit by some substantial extent.
There is another section which deals with the percentage of the takings which can be expended in expenses. That I could agree with. This is an overriding one to ensure that even though that is complied with, there will still be left in the "kitty" something tangible for the charity itself. Otherwise, we might have lotteries which benefit no one but those who receive payments out of them.
It seems to me that this amendment is quite impossible, following upon the withdrawal of amendment No. 43.
I am afraid they run into one another.
Is it not the case that, in many small parish lotteries, less than 25 per cent. accrues to the church fund, or whatever it is? Would this not have a bad effect on them? I realise the desirability of a fair percentage going to the particular charity. I am not quite an expert on amendment No. 43, but I have made some inquiries about the matter. There is quite a number of small charities where the annual income after the lottery has been concluded is less than 25 per cent. If that has been going on for years and if it has been found to be satisfactory because they are repeated over and over again, would it not be undesirable to make them illegal particularly as they are small?
Amendment, by leave, withdrawn.
I move amendment No. 45:—
To add a new sub-section as follows:—
(3) Where any licence is granted for a charitable or philanthropic purpose no other licence shall be granted to be valid at the same time for the same charitable or philanthropic purpose.
Would that affect conferences of St. Vincent de Paul?
No. It would affect them if the same conference had two running at the same time. If importance is stressed on the limitation of the prize money, it seems only a reasonable inference that the same charity should not run two lotteries at the same moment.
I am opposed to this amendment. I am aware that there are some charitable organisations, with different branches, which are single-minded in their purpose of relieving poverty, or distress, or helping the sick, or the aged, and I see no reason why each branch or group should not be eligible for a licence at the consideration of the court. I have in mind, for instance, the T.B. Rehabilitation Organisation which has a number of clinics and which is at present promoting more than one lottery. As far as the law is concerned, I do not think that we should attempt to place restrictions on such efforts.
Would the rehabilitation of T.B. patients not be the same charitable purpose, whether in Howth or Rathfarnham?
I think that the rehabilitation of T.B. patients in Howth would be quite different from the rehabilitation of T.B. patients in Rathfarnham.
They would be a charitable organisation. They are running a number of lotteries all over the country.
I am not as highly skilled as Senator Cox is in the matter but it seems to me that the St. Vincent de Paul Society is the same charitable organisation for the same purposes everywhere. It has different branches. Surely each branch should be entitled to have a permit?
You would only have one then throughout the year.
Under Section 31, the District Court would have regard to the number of periodic lotteries already in operation in the locality.
Amendment, by leave, withdrawn.
Section put and agreed to.
Sections 29 and 30 agreed to.
SECTION 31.
I move amendment No. 46:—
To add new sub-sections as follows:—
(3) Before granting a licence the court shall have from the trustees or other authorised agent of the purpose for which the lottery is intended to be promoted a certificate in writing verified on oath by affidavit or other evidence certifying.
(a) that the purpose of the lottery is charitable or philanthropic,
(b) that the trustees of or the company organisation persons or person constituting the object of the lottery consent to the lottery being held and to the licence being granted to the applicant, and
(c) that no other lottery is being held for the same purpose.
(4) The certificate referred to in the preceding sub-section shall be prima facie evidence of the contents thereof.
(5) The court may, where an applicant has previously held a licence under this Act, require the production of an auditor's certificate duly verified by affidavit or other evidence regarding the allocation of the gross proceeds of any lottery promoted under such previous licence already held and of the amount received by the charitable or philanthropic purpose therefrom: Provided always that the contents of such certificate shall not be disclosed in open court unless so ordered by the court.
In view of the rejection of my previous amendment, paragraph (c) would go out. I suggest that, when application is made to the court, there should be some evidence before the court that this is being made with the approval of the charity.
I am in sympathy with the purpose of this amendment as far as paragraphs (a) and (b) of the new sub-section (3) are affected but I think that the court will scarcely require to be told what it should do in hearing an application. Prima facie, the court will require some evidence to show that the purpose for which the lottery is being promoted is a genuine charity. I do not think that we should say to the court that a certificate given under sub-section (3) should be accepted as prima facie evidence of the contents thereof. It is precisely on this kind of statement that the court will require to hear evidence, perhaps, so as to satisfy itself that it relates to a genuine charity. As regards sub-section (5), I am in approval of the general idea but again I feel that we should not write into the Bill what the court should do. If an applicant has previously held a licence, and there has been any suggestion of malpractice on the part of the promoters, the investigation of such will be a matter for the police, who are empowered under Section 51 to make regulations for the keeping of accounts, the supply of auditors' statements, etc. I think it can safely be left to the police, and other interested parties, to inform the court of any malpractices under a previous licensed lottery, and we may assume that the court will reassure itself as to the position before issuing a licence. I think it can safely be left to the police and the courts to decide whether the lottery is run for a genuine charity or not.
Amendment, by leave, withdrawn.
Section put and agreed to.
Section 32 put and agreed to.
SECTION 33.
I move amendment No. 47:—
In line 33, after "printer" to insert "and of the beneficiary or object,".
I put down this amendment because the Bill as it stands omits to provide that the name of the beneficiary or the object be printed on the ticket. I think that when the public are asked to subscribe to some deserving charity by way of purchasing lottery tickets they are entitled to know the main facts concerning the lottery. I respectfully suggest to the Minister that he might consider inserting these words.
I will accept the Senator's amendment.
Amendment agreed to.
Section, as amended, put and agreed to.
SECTION 34.
I move amendment No. 48:—
To add a new sub-section as follows:—
(3) This section does not apply to the transmission outside the State of any documents, books, records or other papers relating to any dealings in a lottery promoted within the State and in respect of which no person outside the State is entitled to purchase any ticket, counterfoil, coupon or chance, to the trustees of or to the object of the charitable or philanthropic purpose or purposes for which the lottery is promoted: Provided always that such lottery is duly permitted or licensed under this Act.
This amendment is, so to speak, consequential on an earlier one and, in respect of the earlier one, I think it was said that, subject to some kind of provision that the books would always be available for inspection here, it might be considered.
We have already discussed this question. I regret that I cannot see my way to accept amendment No. 48. Again, no doubt, Senator Cox has in mind lotteries promoted on behalf of the Mater Hospital, Belfast.
This Bill puts no obstacle in the way of the Mater Hospital in Belfast or the foreign missions, or any other deserving charity outside the State, from being a beneficiary of a lottery promoted within the State, but it is an altogether different thing to suggest that the control of the lottery, including the custody of records and accounts, could be exercised from, say, Belfast. If a group of residents here promote a lottery for the purpose of sending the profits to the Mater Hospital in Belfast that is well and good, but we will not allow an outside organisation to control and manage a lottery promoted here through dummy agents.
Does that mean that this amendment might be considered if it could be improved upon by providing that the books would be available here?
It will be reconsidered on the Report Stage.
Amendment, by leave, withdrawn.
Sections 34 to 36, inclusive, put and agreed to.
Amendment No. 49 not moved.
Sections 37 and 38 agreed to.
SECTION 39.
I move amendment No. 50:—
To add a new sub-section as follows:—
(3) This section shall not apply to any place or premises which are used by a solicitor as his offices for carrying on his profession.
This is an amendment which I have been asked by the law society to bring to the notice of the Minister. It would appear possible that, if a solicitor is defending an accused person, the provisions of Section 39 as to a search warrant would extend to a solicitor's office. It has always been an established principle of law that there is privilege for the lawyer. If there is no such privilege, then clearly a person against whom a charge is brought cannot be adequately defended. Section 39, as it stands, does definitely contravene that principle, if it were to apply to a solicitor's office.
I think this amendment would tend to create undue privilege. It is quite conceivable that a solicitor would act as an organiser, promoter or agent for a charitable organisation. Consequently, I think to exempt solicitors' premises from searches would really create undue privilege and might lead to more trouble, than would the Bill in its present form. I should like to oppose the amendment.
I am opposing the amendment. The effect of the amendment, if accepted, would be to confer on solicitors a new professional privilege in relation to a particular matter, namely, lottery offences that would violate the established principle of public policy that professional privilege should not be allowed to operate as a cloak for crime. Let me recall what the section provides, which is this, that a search warrant may be issued thereunder only on application to the court and where the court is satisfied on information on oath that there is reasonable ground for supposing that an offence is about to be committed. Under the law as it stands, a solicitor is protected or privileged from having to disclose his client's secret or private affairs. But this protection or privilege does not extend to cases in which the client is contemplating committing crime, whether the solicitor is or is not a party to or aware of the contemplated crime. And it is well settled that no court can be called upon to protect communications which are themselves part of a criminal or unlawful proceeding. I cannot accept the suggestion that there is anything improper or unreasonable in the Legislature putting a similar limitation on the doctrine of professional privilege and I think we would be acting very irresponsibly if we did not do so.
That means that an inspector may enter the office and remove any book or documents found therein. Suppose such an order is made in respect of my office and that I am defending a person accused of various offences which have nothing whatever to do with a lottery. Apparently, the inspector may enter my office and remove all or any papers or documents he finds there. In other words, he may apparently think that in my safe are secret documents relating to a lottery and he may remove wills. The Minister might say that is far-fetched, but it touches the essence of what has always been recognised. In order that people may be properly defended and given a chance of proving their innocence, however remote the possibility may be, it is necessary that a solicitor's office be free from entry by police authorities to remove documents. It could happen that the police might find papers dealing with matters which have nothing whatsoever to do with a lottery.
This is viewed with very considerable alarm by the legal profession. There is a question of real principle involved. What in one Bill may be innocent may be a precedent for another Bill later on. An accused person has the protection of being able to consult his lawyers and confide in them. If that is once attacked, it may go a very long way. I think this matter is one of very great importance.
Senator Cox's desire to facilitate his profession—it is a very laudable desire, indeed, and the profession is a very noble one— carries him very far from the section. It rather obscures his vision of what is actually in the section. A solicitor is an officer of the court. No search can take place except by a named member of the Garda Síochána, not below the rank of inspector. That member of the Garda Síochána, not below the rank of inspector, will be named by the court. Surely the Senator believes in the courts? If he believes in solicitors, a fortiori in barristers, he should a fortiori believe in the courts, where the justices and judges are either solicitors or barristers. Surely the justices of the District Court will not lightly give an order to any member of the Garda Síochána to go to the offices of a solicitor who is himself an officer of the court? I am sure that is sufficient protection for the solicitors, just as it is for anyone else.
First, you must have an order of the court; secondly, the power extends only to a named officer of the Garda Síochána not below the rank of inspector; thirdly, under sub-section (2) of Section 39, a named officer of the Garda Síochána can enter the place or premises, inspect any books and documents found there. He can take the name and address of any person and seize any gaming instrument and any books and documents appearing to relate to gaming or lotteries found there.
As far as I can see, the valid part of Senator Cox's argument is that the inspector of the Garda Síochána might seize documents relating to gaming given to a solicitor in the course of his duty to defend a person charged with a crime. Is that correct?
Yes.
If that is so, surely the District Court would not countenance any such procedure? It would surely be aware that the superintendent would be extremely careful in regard to doing anything of the kind. One would imagine by the Senator's speech that a sergeant could go in, open the safe and take away wills and bring them to the barracks. Surely that is a far-fetched idea and surely Senator Cox is playing the advocate rather than the legislator when he asks us to believe any such thing? Unless I am greatly mistaken, are there not other cases where a search warrant may be given and the search may be made in a solicitor's office?
Under the Narcotics Act.
I am thinking of the Firearms Act and the Offences against the State Act. Surely there are cases where solicitors' offices may be investigated? Although I have very close connection with solicitors, and I happen to be the father of one, it seems extraordinary to single out solicitors and make them completely immune. I have the greatest possible confidence in solicitors to exercise their rights and see that no member of the Garda Síochána, without a warrant from the courts, goes beyond his ordinary duty, even an eighth of an inch.
I would agree to any alteration of the amendment which makes it clear that this will not apply if the suggestion was that the lottery was being carried on in a solicitor's office. I think possibly less of barristers and solicitors than Senator Hayes does, but there have been times when barristers and solicitors have been the defenders of the liberties of the ordinary person.
Nevertheless, all legislation which removes the privileges of the profession—not of lawyers individually, but of the profession as a whole—is a serious matter. I think this is definately a step away from what is desirable. I am not going to press the amendment, if the Government are against it.
It is not the Government alone that are against it. I suggest it is common sense and justice that are against it. Many here who do not support the Government might be against this amendment also.
While I admit the good work done by the legal profession, this puts them in a peculiar position. What the Senator is asking us to do is not to continue a privilege, but to give an entirely new privilege. I suggest to Senator Cox that he has lost his sense of proportion, when he rails at the Government for not giving a completely new privilege.
Amendment, by leave, withdrawn.
Section agreed to.
Sections 40 and 41 agreed to.
SECTION 42.
I move amendment No. 51:—
In line 6, after "twenty-five pounds" to add: "Provided always that this section shall not apply to counsel or solicitor in respect of any books or documents in his or their possession or control for professional purposes".
On the literal meaning of this section, if I am defending a person who is accused of having committed an offence under this Bill, and if I am asked by a member of the Gárda Síochána not below the rank of inspector to produce any books or documents I might hold, I will commit an offence by declining to give my client away. That seems to be a most extraordinary position. If I am defending a person accused of murder, nothing can force me to show the documents. If I am defending a person accused of treason, without special legislation, nothing can force me to betray my client. Under this section, if I refuse, I am liable to a fine of £25.
All I can say is that if this section is passed into law and if under it any solicitor is asked to produce any of the papers, that solicitor will only have to say that he will not do it and that he will go to prison instead—because, as long as he is worthy to remain a solicitor, he will not betray his client.
This amendment seems reasonable enough. It applies only to solicitors who are defending people engaged in lotteries. It is a question of professional privilege. I would support the amendment.
I should like the Minister to consider this amendment. Anything which a solicitor has to do for the purpose of giving legal advice and assistance to his client the certainly should be able to do with the greatest possible liberty. If Section 42 appears to interfere with that, it certainly ought to be amended to make it clear to that extent, that it should not interfere in any way with the relations between solicitor and client. Whether the amendment is entirely satisfactory or not, I do not know. I presume that "professional purposes" means for the purpose of arguing the client's case. There is something there for discussion and consideration.
My Department requires further time to consider this and I suggest we should leave the matter over for further consideration on the Report Stage.
I will withdraw it and set it down again on the Report Stage, when I will certainly divide the House on it, if necessary.
I would also impress upon the Minister the advisability of giving very careful consideration to this between now and the Report Stage. It would appear to involve interference with the solicitor and client relationship.
I think Senator Cox would need to explain to us what is meant by "professional purposes". I can imagine a solicitor acting on behalf of people running a lottery which would be illegal. He would be acting in a professional capacity other than that intended by Senator Cox, that is, where he is acting on behalf of somebody who has been charged with an offence. I think there is merit in what he says but I really think that the amendment, as at present drawn up, is not quite what we would like to put into the Bill. I think it would want some further elaboration.
I take it the amendment is, by leave, withdrawn today and may be put to a vote on a later stage?
I fully appreciate what the Senator has said. He should remember that, in the ordinary course of the duty of a solicitor in advising his clients, all sorts of questions may arise regarding income-tax and this, that and the other thing, in which, possibly, the client has committed an offence and that these papers are perfectly legitimately and honourably in the solicitor's office. Is the principle going to be established—because I must remind Senators that this can spread into other Bills—that, perhaps in other branches of the law, because some inspector believes that Mr. X is offending against something and he knows that Mr. X has consulted, say, Senator Walsh, he can then go to Senator Walsh and say: "You must hand up Mr. X's papers so that I can see whether or not he has committed an offence?" If that is going to be established then any standing the legal profession have had is destroyed.
Surely the position is that if the Bill needs amendment it should be amended according to the principle that whatever privileges solicitors have in law and practice at present should be preserved and should not be interfered with in this Bill? I suggest that that is the matter that should be considered—to see that no privilege now enjoyed by a solicitor for his client should in any way be interfered with in the operation of this Bill when it becomes law. If the Minister considers the matter in the light of that particular principle I think he would be bound to satisfy Senator Cox.
I am glad Senator Hayes recognises that what I have been talking about all along is the fact that the lawyer has no privilege but rather the privilege of his client.
I am too experienced to let Senator Cox get me like that. I do not agree that what I said on this amendment applies to what Senator Cox said on the other amendment.
Amendment, by leave, withdrawn.
Section put and agreed to.
Sections 43 to 49, inclusive, put and agreed to.
SECTION 50.
Government amendment No. 52:—
To delete sub-section (1) and substitute the following:—
(1) The Minister for Posts and Telegraphs may detain any postal packet posted in the State and suspected of containing any document relating to an unlawful lottery and shall forward every postal packet so detained to a member of the Garda Síochána not below the rank of superintendent.
(2) The member may open and examine the packet, but, in the case of an address within the State, only in the presence of the person to whom it is addressed unless, after notice in writing requiring his attendance left at or forwarded by post to the address on the pocket, he fails to attend.
(3) If the member finds any such document he may detain the packet and its contents for the purpose of prosecution, and if he finds no such document he shall either deliver the packet to the person to whom it is addressed or, if he is absent, forward the packet to him by post.
Having regard to the views expressed in various quarters on the Second Reading, I have had Section 50 redrafted so as to provide that a postal packet detained thereunder shall be opened only in the presence of the person to whom the packet is addressed, provided, of course, that his attendance for the purpose can be secured. This, I think, should meet the objections to the section as originally drafted while preserving the power to prevent abuses of postal facilities which, if left unchecked, would make it difficult, if not impossible, to enforce the prohibition on the promotion of unlawful lotteries.
There has, I think, been some misunderstanding about this section inasmuch as it has been suggested that what we are doing here is something novel which constitutes an unprecedented violation of the secrecy of the post. Nothing, I assure you, is further from the case. Under the law as it stands the Minister for Posts and Telegraphs is authorised (by Section 18 of the Post Office Act, 1908) to detain any postal packet suspected of containing contraband goods and forward the packet to the Revenue Commissioners to be opened by them. There is a somewhat similar provision which applies to packets suspected of containing obscene or indecent matter.
The existing law relating to the detention and opening of postal packets containing documents relating to bets which, in certain circumstances, cover pools is contained in Section 34 of the Betting Act, 1931.
It will be seen, therefore, that what we propose is no more than an extension of a principle that has already been accepted by the Legislature to prevent abuses in analogous cases to cover the case of the abuse of postal facilities for the promotion of unlawful lotteries which it is one of the primary purposes of this Bill to prevent.
As regards Senator Cox's proposal that an order of the District Court would be necessary to enable the police to examine and open a postal packet and that the order shall not be given unless the District Justice is satisfied that there are grounds for suspecting that the packet contains a document relating to an unlawful lottery all I can say is that I regard this as an amendment designed to wreck the section. It would not be practicable to operate the section at all if the police had to go first to the District Justice for an order. In the case of some of the unlawful pools and lotteries there may be quite a number of postal packets addressed to various people.
As regards Senator Cox's further proposal that Section 50 should not apply to postal packets addressed to a solicitor, I cannot accept that suggestion. The existing law makes no distinction as between different classes of the community and I see no good reason to change it.
As I understand it, the Minister's proposal is that the Minister for Posts and Telegraphs can detain any postal packet if he says or alleges that he thinks it relates to a lottery. I think that is exactly what the Czars used to do in Russia in previous days.
In this section, we have the rather extraordinary position that it is only necessary for the Minister for Posts and Telegraphs to say: "I think that So-and-so is in some way concerned with a lottery", for him to go and interfere with the whole correspondence of that person. In dealing with some of the sections under this Bill, I am beginning to feel rather like John Hampton. I feel this is a section which requires the most earnest consideration. It seems to me to be wholly revolutionary. We are dealing here with what is, I think, maybe an important step. It may deal with a relatively trivial thing here—lotteries, and so forth—but, under this, you are giving the Minister power to interfere with the post of any person whom he may have some reason to suspect. People talk of the spirit of democracy, but if Ministers are to have these kinds of powers, I think the liberty of the ordinary individual is getting rather weak. I should like to reserve the right to raise this again on the next stage of the Bill.
The Minister's present amendment only comes to us now. Again, I think a real question of principle is involved. It seems to me that, in endeavouring to suppress what is perhaps an evil— perhaps one of the smallest of many evils in the country—the Minister is taking precedents of the most extraordinary nature to interfere with the ordinary rights of the ordinary worker.
Does Senator Cox say that this is entirely unprecedented? Does he need to go as far back as the Czars of Russia in this connection? Have the British Government not got power to do this and has there not been power there, under the Post Office Act of 1908—which we took over from the British—to do this in other cases? Has it not been in operation for 47 years? In any event, surely it is not so unprecedented—that is, entirely apart from its merits. It may have demerits. The suggestion that the Minister is taking unprecedented powers and extravagant action against the ordinary citizens which was never possible before this unfortunate Minister got into the Government is surely extravagant language. Surely it is not so. Surely this power exists in Britain and, if I am not very much mistaken, in the great democracy of the west, the United States of America.
Like Senator Cox, I regard this Section 50 as a very drastic one indeed, and it is because of its drastic nature that I decided to oppose it, so as to get from the Minister some information as to what circumstances have arisen in the past in connection with lotteries, or what circumstances would be likely to arise in the future, to justify the insertion of such a drastic section.
Senator Hayes has stated that this power of intercepting postal packets already exists. I am in agreement with that, but it is for another purpose. The Revenue Commissioners have that power already, but they exercise it in a very restricted way. We know also that, in time of grave emergency, such as a war, Governments have to take these drastic powers in order to safeguard the State against possible subversive activities on the part of individuals; but no such grave emergency exists now. We are supposed to be living in a state of peace, and here we have the Minister taking these powers and transferring them to an officer of the Garda Síochána to enable him, if he thinks fit, to intercept a postal packet.
I admit that the amendment is an improvement, in that it provides that the postal packet will be opened in the presence of the recipient, but still that does not take away from the seriousness of the encroachment on the private rights of citizens. I should like to hear from the Minister, as I have said, what circumstances have arisen in the past in connection with lotteries which would be calculated to be inimical to the moral and economic welfare of the people, or what circumstances would be likely to arise in the future, to justify a drastic section of this nature being embodied in a Bill of this kind.
This section, as originally drafted, appeared to me to be very objectionable and, in some ways, the amended section is still open to objection. There is one aspect of this that has not been touched by the other speakers. In the Minister's amendment, it is provided that the postal packet can be opened in the presence of the recipient, provided the recipient attends at the place where it is being opened, after being notified. That might create considerable difficulty for the person to whom the packet was addressed, because he might reside many miles from the superintendent's office, if it were to be in that place that the letter would be opened.
It would be rather unfair to expect an ordinary citizen to whom a suspected letter is addressed to travel perhaps 20 or 30 miles to the superintendent's office for the purpose of being present when the letter is opened, and I should be inclined to think that it would not be an undue hardship on the officer of the Garda to travel to the residence of the citizen to whom the letter is addressed and open it in his presence. In a matter of this kind, we must have respect for the rights of law-abiding citizens and every citizen must be assumed to be law-abiding, until he is proved otherwise.
The point that there are, in other legislation, drastic powers to deal with letters has been mentioned, but I think there was a certain restriction on these powers, inasmuch as they related to certain types of offences which could not be presumed to be so widespread. A plausible case could be made by a superintendent or the postal authorities for opening a large number of letters under this section, even as amended, which could not be made in respect of the offences mentioned by the Minister, and I feel that the Minister is widening very drastically and substantially the powers to interfere with private letters going through the post. I think he should consider this matter, and should consider it perhaps in the light of the amendment suggested by Senator Cox.
If we are serious about stopping illegal lotteries, unlawful lotteries, we will require to use the power which is already in existence to prevent these illegal and unlawful lotteries using the postal services. I think Senators will agree with that. It is necessary to have these powers, which are merely a repetition of existing powers. This is a very comprehensive measure which is intended to embody the law relating to lotteries, and there is no other way of preventing illegal lotteries which involve large sums of money passing out of this country to a foreign country than the use of the powers I am seeking, and I seek them for no other purpose.
Would the Minister inform the House if that has been happening in the past?
Yes.
There have been past instances of that nature which would justify this section?
Yes.
Is there not a peculiar point in sub-section (1) of the Minister's amendment, inasmuch as it is confined to postal packets posted in the State? One would imagine that it would be necessary to deal also with postal packets posted outside the State, as there could be a contravention of the Act in that respect.
A person outside the State could not attend—he would be too far away—when the packet would be opened. If he were across the water, he could not be present, but I appreciate what the Senator has in mind.
This is the case of a person who posts the letter, not the person to whom it is addressed. It is the person to whom it is addressed who is called on to attend.
I do not press the amendment at this stage, but I reserve my right to raise the matter again.
Amendment No. 52 agreed to.
Amendment No. 53 not moved.
Section 50, as amended, agreed to.
Section 51 agreed to.
SECTION 52.
I move amendment No. 54:—
In line 19, after "1933 to 1940" to add "or to a sweepstake or lottery promoted by or with the authority of the trustees of the Mater Hospital, Belfast, for the charitable or philanthropic purposes of the said hospital".
The object of this amendment is to ascertain whether the Minister would consider that the same privileges should apply to what is done on behalf of the Mater Hospital in Belfast as to what is done on behalf of the hospitals inside the Twenty-Six Counties.
I cannot accept the amendment. I have already explained why.
Does this amendment not more or less fall with the other amendment of the same nature? I do not want to argue the matter, but there is not an analogy between the Public Hospitals Acts and this hospital. However, as Senator Cox is raising the whole matter on the next stage, perhaps this will also be raised then.
I will let it stand at that. I withdraw the amendment, reserving my right to bring it up again.
Amendment, by leave, withdrawn.
Section 52 agreed to.
Schedules and Title agreed to.
Bill reported with amendments.
Report Stage ordered for February 1st, 1956.
Will the Minister in the meantime inform Senators who put forward amendments what his views are in relation to them?
I promised the Seanad I would do that.
In all cases?
Yes.