The following Message from the Dáil has been received:—
Dáil Éireann has agreed to amendments Nos. 1 and 2 by Seanad Éireann to the Prices Bill, 1957. It has disagreed with amendment No. 3 and desires Seanad Éireann not to insist thereon.
Vol. 49 No. 1
The following Message from the Dáil has been received:—
Dáil Éireann has agreed to amendments Nos. 1 and 2 by Seanad Éireann to the Prices Bill, 1957. It has disagreed with amendment No. 3 and desires Seanad Éireann not to insist thereon.
I move that the Seanad do not insist on amendment No. 3. Members are familiar with the developments which gave rise to the position and it is therefore unnecessary to dwell at length on them. The Seanad, as it was perfectly entitled to do, passed three amendments to the Bill. The Dáil has agreed to amendments Nos. 1 and 2, but has declined to agree to amendment No. 3. The decision of the Dáil was arrived at by a very emphatic majority of 43. In order to keep in line with what happened under similar circumstances on a previous occasion in this House, I looked through the Seanad Debates, and I found in Volume 37, column 1845, that the then Leader of the House, Senator Hayes, in moving that the Seanad do not insist on two amendments to the Transport Bill of 1949 which the Dáil had declined to accept, advised the Seanad in the following words:
"We have carried out our function. It is not for us to deal with the way in which the Dáil has discussed these amendments but with the decision which the Dáil has made, and in the light of that decision I move that we do not insist on our amendments".
I commend this advice to the Seanad on this occasion and I move accordingly.
I do not know whether I should be flattered at being quoted by Senator Ó Maoláin on this occasion and finding him so emphatically in agreement with me, or whether I should say that the Devil can quote Scripture for his purpose. I suppose I should say both. Strangely enough, perhaps it will surprise Senator Ó Maoláin to know that I agree that we should not insist upon this amendment. On the last occasion on which this matter arose, when I was Leader of the House, I think the Bill had still about a month to go. In this case, the delaying period is already over, and the only effect of our not adopting this motion, and of insisting upon the amendment, if we were to insist upon it, would be to compel the Dáil to pass a resolution to put the Bill into operation. Indeed, they could have done that already and given us no opportunity of having this discussion.
But while I agree with the motion that has been moved, that we should not insist on this amendment, I should like to say that while, as Senator O'Donovan has said, the Parliamentary Secretary is very welcome, he is the more welcome because he has had no part in these proceedings on this amendment. We were expecting to see the Minister here this evening, because there are a few things we would like to tell him. First and foremost, I agree entirely that the Seanad has fulfilled its function. It has indicated a particular defect in the Prices Bill, a defect which is not only in the Bill but is common to a great many Bills and which, in the judgement of this House and, in my judgment, is an extremely bad method of drafting Bills. We have fulfilled our function and spotlighted that particular defect, but we could carry out no good purpose by continuing. It would be no harm to say that the predecessor of the present Parliamentary Secretary behaved in a very reasonable manner, but the Minister thought fit, when he came to see us in connection with this Bill, to tell us that we were ignorant and various other things.
The thing we objected to was the provision in the Bill which gave an officer of a Minister for Industry and Commerce power to ask any kind of question he liked, and that power was added to a great many other powers already provided for. It is interesting to remember that the Bill passed almost at the same time as the Office Premises Bill, 1957, in Section 28 of which there is a provision in subsection (2) that: "No one shall be required by virtue of paragraph (f) of sub-section (1) to answer any question or to give any evidence tending to criminate himself." That is what we wanted in the Prices Bill. That is not being inserted and it is certainly open to the courts to say: "The Oireachtas put it into one Bill but did not put it into the other. Therefore, it is reasonable to conclude that they meant the power to exist in the Prices Bill." That may not be so decided, but that is certainly a reasonable legal interpretation. It is probable that the powers will be exercised reasonably. That, I know, is the defence of the present Minister for Industry and Commerce and of every other Minister for this kind of provision. The real danger is that in our legislation we have given explicitly enormous powers to an officer of the Minister.
I still think that no matter how these powers are exercised by the present Minister or by his successors, he should certainly make provision to say that, when a citizen is subject to questioning, he should be questioned only within a reasonable area and should not be liable, through any Act passed by the Oireachtas, to be asked questions which might cause him to incriminate himself or to reveal anything between himself and, say, his legal advisers. Having said that and having succeeded in having the Dáil discuss the matter, I agree that in the circumstances which have since arisen and in the light of our Constitutional powers, it would be no use for us to insist. I agree with the motion made by the Leader of the House.
I have no intention of disagreeing with the Leader of the House. I quite agree that this Bill will now have to be passed, but we are entitled, as one of the Chambers of the Legislature, to assert very strongly what we feel about this matter. We have no power to stop the Bill coming into operation, but I feel that we are entitled to make some comments upon the way in which our amendments were discussed in the other House. I regret that the Minister is not here, but at the same time I feel a duty to this House, and to some members in particular, to comment on the tone of the debate in the Dáil and on the way in which our perfectly reasonable amendments were handled by the Minister.
I refer to column 142 of the Dáil Debates of 12th February, 1958, in which the Minister stated:—
"This is a particularly stupid amendment which I cannot under any circumstances accept. Apart from the fact that it is badly drafted, put in the wrong place, and entirely unnecessary, if it was of any effect at all, it would be completely detrimental to the enforcement of Price Orders under this Bill."
That passage struck a vague association of ideas in my head—a similar condemnation of something else. I know now what it was. It was the comment of Dr. Johnson on the joint of roast beef. He said it was badly killed, badly hung, badly cooked, badly carved, and badly served. The tone of these two condemnations seem to me to be somewhat similar.
In the first place, the Minister said that it was a stupid amendment. On the general principle that he who drives fat cattle must himself be fat, people who propose stupid amendments must themselves be stupid. We are entitled to defend ourselves against this accusation of being stupid. If the House looks at column 132 of the Dáil debates of the same date, it will see that this amendment which is being rejected is described by the Minister as an "even more foolish" amendment than the other amendment which was accepted. If this amendment is even more foolish than the one which was accepted, I should like to point out that the Minister for Industry and Commerce inserted a foolish amendment in the Bill on his own showing. He has refused to insert this one because it is even more foolish than the one he inserted.
I should also refer the House to column 142 where it is stated that the amendment is put in the wrong place. If there is a wrong place, presumably there must be a right place. I would ask the Parliamentary Secretary to indicate to the House what in his opinion would be the right place in the Bill where this amendment should be inserted.
The next comment of the Minister was that the amendment was badly drafted. The fact is that this amendment was drafted by members of the legal profession. I need not specify who they were. They were, in fact, members of the legal profession who drafted this amendment and moved it in the House. It was supported by a number of members of the legal profession in this House and in the other House. In view of that, I was greatly surprised to read in columns 131 and 144 of the Dáil Debates that the amendment was stated by the Minister to have been drafted by "sea lawyers". I quote from column 131:—
"I am sure there are a number of Deputies opposite who will have learned from experience that one of the biggest nuisances a Minister can encounter when he is trying to get a Bill through the Oireachtas is the ‘sea lawyer', who believes he can improve on the work of the parliamentary draftsman."
Again, in column 144 he said: "I think it was something thought up by a sea lawyer..." I thought I had a very good command of the English language, but this, I admit, was a new term to me. I looked it up in several dictionaries.The Century Dictionary gives the following definition of a “sea lawyer”. It means three things, all of which are described as “nautical slang”. The first meaning is:—“A querulous or captious sailor disposed to criticise orders rather than obey them, one who is always arguing about his work and making trouble.” The second definition is:—“The gray mangrove snapper” and the third definition is “a shark”.
I should like the Parliamentary Secretary to indicate to us whether we are querulous sailors, mangrove snappers or sharks. If we are mangrove snappers, would be indicate precisely what a mangrove snapper is? I have great respect for the parliamentary draftsmen. Many of them are personal friends of mine. But I think the suggestion the Minister makes that the parliamentary draftsmen are always infallible is one which they themselves would not be inclined to accept. We have had the experience in the past couple of months of a clause in a Bill which had to be dropped when it was questioned. We, the same "sea lawyers" who were let loose on the Prices Bill, were prepared to try to argue against Section 21 of the Agricultural Institute Bill, but to our relief when the time came, it was withdrawn by the Taoiseach, on the ground that it could not be supported constitutionally and had been wrongly inserted in the Bill.
It seems to me that, if every time people question the parliamentary draftsman's draft, they are told they are stupid and foolish sea lawyers, querulous sailors, mangrove snappers, or sharks, there is no point in maintaining the Seanad at all, or, for that matter, the Dáil. If everything the parliamentary draftsman says must always go through, if he can never be questioned, it seems to me that, in the economy drive about which we hear so much in relation to the Estimates, both Houses of the Oireachtas could be abolished with great advantage. The Ministers and parliamentary draftsmen could then legislate to their hearts' content, without being opposed by these "sea lawyers" and other people who are out apparently to make mischief and make the governing of the country more difficult.
Though the Bill is going through, I want to register my protest against the bad principle involved in the rejection of this amendment. I think that the amendment falls into two parts—the incriminating part and the privileged part. I would be prepared to let the privileged part go. I think it is not the fundamental part, but that the part of the amendment which refers to people incriminating themselves embodies a very important principle, which, as Senator Hayes has said, appears in other Bills. If it has been embodied in several other Bills, it does not seem correct for the Minister to say it is unnecessary to embody it in this Bill. If it is necessary in other Bills, it is necessary in this; and if it is not necessary in this, why should it be embodied by the parliamentary draftsman in other Bills?
The fact of the matter is that the right of the citizen in this country not to incriminate himself under cross-examination by officials is a fundamental constitutional right. One of the great principles of the Common Law under which we all live is that nobody is to be convicted except by a proper trial. It is a fundamental right of the individual, which is not to be watered down or weakened, that everybody is presumed innocent until proved guilty and that, if people are suspected by the agents of the Government of not obeying the law, they should be prosecuted, the offence brought home to them and, if convicted, should be punished. I attach great importance to this right. It is one of the things to which this Seanad should give countenance, that in an age like this of growing power of the State in every country, with the intrusion of the Government into every section of life, the ordinary man has the same right against people in uniform as against people not in uniform. It is a fundamental principle of the Common Law and of our Constitution that simply because a man is put into a uniform, whether he is called a soldier, a policeman or an inspector, he has no more rights against the ordinary citizen than if in plain clothes.
I suggest that it is the duty of the Seanad to assert that they believe in their principles, even if we are not able to hold up this Bill to-day. If this Bill should lead to snooping by officials of the Department of Industry and Commerce, to undesirable intrusions into traders' private affairs, to every form of badgering by agents of the Government, at least the responsibility for the attack on the liberty of the citizen will rest on the shoulders where it should lie and the Seanad will at least have struck a blow for the liberty of the individual. In doing so, it is very unfair that it should be attacked as being stupid and composed of ignorant "sea lawyers", trying to hold up desirable legislation. Although I quite accept that the Bill must go through, we have at least attempted to assert a very important fundamental principle of our Constitution. Having said that, I shall say no more.
I should like to support what was said by Senators Hayes and O'Brien. I think our proper attitude towards the motion would be to accept it. It would be fruitless, I think, to delay further the implementation of this Bill. I agree with Senator O'Brien that we have made our stand and made our position clear, and that there is consequently no point in delaying it for another two or three months.
I was not myself entirely satisfied, as I said in Committee, about this particular amendment. I felt it was not wholly good. I felt that if the reference to the particular instance of "incriminating evidence" were removed, and if there were the mere statement that the ordinary protection of any witness before the High Court would be granted to these people, it would have been sufficient. I felt, nevertheless, that the amendment as it stood merited support.
I agree with both the Senators who have spoken that the Seanad, in supporting that amendment, was doing no more than its duty. I would also support Senator O'Brien very strongly about our need to be concerned for the procedure of this House. I share his resentment at the tone of some of the debate on these amendments when they went back to the Dáil. The tone was set—I do not think there can be any question about it—by the Minister, who seemed to be very annoyed, because the Seanad had ventured to pass amendments against his advice. At column 132 of Volume 165 of the Official Report of the Dáil, the Minister for Industry and Commerce is reported as saying:—
"When the amendment——
Here, he is referring to the amendment I proposed myself, and which he subsequently accepted, the insertion of the word "reasonable"——
"——was put in the Seanad I must admit I conveyed to the Opposition that I thought the amendment of so little importance that I was prepared to accept it if they completed the Bill so that I could get it back to the Dáil to be dealt with before the recess. But when they came along with a more foolish amendment, that did not prove possible."
I do not want to comment on the point already made by Senator O'Brien. I want to comment here on the inaccuracy of the reference. The Seanad will remember that before the recess the Minister was not here at all to pilot this Bill. His Parliamentary Secretary was here. It was, in fact, on the last day that the Dáil was sitting—the afternoon of the last day on which it was sitting—that the Leader of the Opposition in this House offered the Parliamentary Secretary all stages of the Bill, if he would accept my amendment and the amendment following it.
There was some doubt later about the correctness of the report. The report was absolutely correct. I personally remember noticing, with a certain internal amusement, that Senator Hayes was asking for the acceptance of my amendment and throwing in the next amendment also to get them both accepted together, with the condition that we would then give the Parliamentary Secretary all stages that day. The Parliamentary Secretary accepted my amendment, but did not accept the other one. We took a vote on it, nevertheless, and it was passed. He could still have had all stages that night. When you, Sir, in the Chair, asked him what he wanted to do about it, as we were entirely in his hands, and it was early in the evening, and as Senator Hayes had made it quite clear that he could get back to the Dáil before the Dáil rose, the Parliamentary Secretary himself stated that he did not see the point of all the rush, and that even if there was a gap between the old and the new legislation, it did not really matter.
The Report and Final Stages were not taken that evening, although they might easily have been. It was not until quite considerably later, long after the Dáil had gone into recess, that the Minister came before us and made his plea for the reintroduction of the original text into the Bill. Therefore, it is quite inaccurate for the Minister to say he came before us and asked us to do something before the Dáil rose which we refused to do. He was not here at all on this Bill, in fact, before the Dáil rose, and, in saying that, he seriously misled the Dáil.
I would support Senator Hayes in saying that there is no point in our holding up this matter further. We have made our stand. However, as Senator O'Brien said, I feel we should be prepared to see that any suspect is given the full protection of ordinary civil liberties. I am prepared to stand here and say that a suspected price-racketeer has the same right to protection as any other citizen. The fact that he is suspected of something which we deplore, removes no civil liberty from him.
Finally, I am the more led to agree with this motion in that I do not believe any court would uphold the powers that are, in theory, given to the Minister's agents, to interrogate witnesses and take from them even evidence which would implicate them. In other words, I believe the provisions of the Act as they now stand unamended, will not be capable of application by the Minister's agents, and, if they try, they will not be allowed to go against the ordinary Common Law.
I understand, by a tone of irritation and public statements, that the Minister is extremely anxious to get this Bill. He is being given it. He said he urgently desires these powers, and so forth. I hope he will use these powers which he is so anxious to get. The Prices Advisory Body has gone since the end of last year. How soon will the Minister set up one or more of the new Prices Advisory Committees under the powers of this Bill, which he is so anxious to get, and which we are now giving him?
I do not dissent from this motion for the reason advanced by the other speakers. There are only one or two matters to which I would refer. As I understand the basis on which the Constitution rests, there is a certain separation of powers and the duty of this Assembly is to legislate. If we want to legislate, we are entitled to examine Bills and, when we think proper, to make amendments to them. I regret, for my own part, that the honest endeavours of legislators here in this Assembly to make better Bills, to improve the Bills that come in to us, should be the subject of the very slighting and indeed insolent remarks which were made by the Minister, both here and in the Dáil. Not alone was the word "stupid" used in relation to the amendment, but there was the phrase that it was "a particularly stupid amendment" and "a most stupid amendment". I framed the amendment and I do not think I am all that stupid. That is all I have to say on that.
Since the amendment was the subject of comment by the Minister in this House, I have been considering for what reason he might have considered it was stupid. I felt that the Minister had some particular reason for thinking it was in that category. Possibly he had the view that the whole tenor of the operation of the Act was being changed by the amendment, by reference to the privilege which a person would have in the High Court. He refers in column 1125 of volume 48 to the High Court and he says:—
"If a person interrogated by an authorised officer merely stated he was claiming privilege or refused to reply because by replying he might incriminate himself there is nothing the authorised officer could do except to bring legal proceedings in the High Court."
Of course, that is not what is intended and that is not the way the amendment was drafted. If the Minister had gone to the Schedule to the Bill, which deals with the Advisory Committee to be established under the Bill, he would also find there that the Advisory Committee in bringing people before it would have all the powers invested in the High Court to compel people to come there and answer questions, and so on. The reason for that is that the High Court under the Constitution is the Court of First Instance and it decides what the law is, subject to appeal to the Supreme Court.
Therefore, when I included, as I did in this amendment, a reference to the privilege which would attach to communication, in respect of which a person would be entitled to claim privilege in the High Court, I was referring to what the law is; and the law is always what is decided by the High Court, subject to appeal to the Supreme Court. It is not the fact, as the Minister thought, that in the event of persons claiming privilege or stating that they refused to answer questions on the ground that they would incriminate themselves, the authorised officer or inspector under the Bill would have to take proceedings in the High Court. That, I say with great respect to the Minister, is nonsense. The procedure will still be in the District Court, but in the District Court we would be entitled to claim the immunity we would be entitled to claim in the High Court.
There is another matter to which I wish to refer. The then Parliamentary Secretary to the Minister for Industry and Commerce, Deputy Bartley, in the course of the debate in the Dáil, said that the amendment here was not put upon the same basis as that on which it was argued in the Dáil. He said, as reported at column 158, Volume 165:—
"The reason I mention it in relation to this amendment is that the case that is now being made that there is a very wide principle involved in this amendment was not put forward in the Seanad on behalf of Fine Gael in so far as I could find out."
At column 1039 of Volume 48, in moving the amendment I said:—
"I think this amendment is one of some substance and importance."
Senator O'Brien, as reported at column 1136 of Volume 48, said:—
"It seems to me this amendment raises a point of the highest constitutional importance."
In the course of our arguments in favour of the amendment, we were dealing with the liberties and rights of the citizens. I would have imagined that once we mentioned the rights and liberties of citizens, we were dealing with matters involving high principle and of constitutional importance. It would seem to me that it is not necessary to brand and tag them as being matters of constitutional importance and high principle. Once we are dealing with the liberty of the subject and the invasion of their rights of property, we are dealing with matters of constitutional importance and matters of principle. It is not the way in which the Minister thinks the Bill will work that will matter when one comes to implement it in the course of legal proceedings; it is what the Act will then state.
As I have already stated, I believe that if a person refuses to answer questions because he feels answering the questions will incriminate him, that will leave him open to a charge under the Prices Act, as it then will be, for failing or refusing to answer a question asked by an inspector. For that, he can be fined or sentenced to a term of imprisonment. It is not what the Minister thinks; it is what the Act states that will determine the law in the District Court. I have no doubt in my own mind that that will be the position.
For another reason, I regret that this amendment was not accepted by the Dáil. We have proposals in being at the moment for the repeal of certain provisions of the Control of Manufactures Act. There has been a campaign in progress in the United States and in this country to attract foreign capital into this country, all with a view to establishing industries here and providing employment for our people. No American industrialist—or British industrialist, for that matter— will come into this country and invest his money here until he knows the conditions upon which he will invest his money. I have no doubt that shrewd businessmen will find out what our laws are relating to taxation. They will probably find out that, in relation to income-tax and the like, there are certain ameliorations of the income-tax code in regard to taxation on industry engaged in producing goods for export.
Then they will come on and try to find the law relating to factories, if they are establishing a factory. There is a whole code of factory legislation there and they will probably acquaint themselves with it. Attached to every factory and every wholesale house, and so on, there will be offices; and these business men will probably investigate the conditions there. They will find that, in 1958, there was an Office Premises Act enacted by the Legislature. They will find there are provisions in it for the inspection of those offices to see that they comply with a particular standard. They will also find that, in relation to these inspections, there are certain saving provisions which do not compel the owner or occupier of offices to answer questions which would tend to incriminate them.
The manufacturers will be interested in prices, of course, and will probably have a look at the prices legislation and then they will be interested, I should imagine, to note that, on visits by inspectors of the Department of Industry and Commerce, they will be compelled to answer all classes of questions, including questions that would tend to incriminate them.
It seems to me to be negativing the efforts being made to attract capital here to have provisions of this kind relating to prices and profits, provisions which will compel these prospective investors to give all classes of information about their private affairs, including information which would tend to incriminate themselves. I think that the prices legislation would not have been rendered any less effective by the inclusion of this amendment. There is a juxtaposition with the Office Premises Bill, which was passed within a short period of the Prices Bill, and the possibility that it will have the effect of putting off people who might be inclined to invest in this country.
For that reason, amongst others, I regret that the Minister did not see his way to recommend the acceptance of this amendment in the Dáil. Certainly, for my part, for the future nothing the Minister has said will persuade me from putting down amendments, if I think they should be put down.
Senator O'Brien made a number of references to statements made by the Minister in the other House and it is a pity that the Senator did not refer to one statement which I will quote from Volume 165, column 143 of the Official Report. The statement is:—
"This Bill makes it possible to introduce price control in times of scarcity, when there is a danger of profiteering and, if these provisions are to be enforced, an inspector must have the right to go in and ask a trader what price he is charging. The purpose of this amendment would be to deprive him of that power, at least to give the trader an opportunity of pleading a sort of fifth amendment and to say: "I will not answer the question because it would incriminate me."
Senator Hayes has referred to a defect in the section and in view of the fact that the other House has already passed the Bill and deleted that amendment, it can scarcely be correct for the Senator to refer now to a defect in that legislation.
I regard the section as a defect. It is in the Bill and surely I am entitled to say so.
But the Dáil did not regard it as a defect, because they have not accepted the amendment.
Am I not to say that it is defective? Surely any Senator is entitled to say so?
The Senator may say so, but the other House has agreed to that section. Furthermore, Senator Hayes stated that the Minister's agent would be entitled to ask any question he might wish. The section qualifies the type of question that can be asked, because it has to be a reasonable question. If a trader refuses to answer and is prosecuted, the court will have to decide whether or not the question was reasonable. In many Acts that have been passed, the same type of provision is included and it is rather late in the day for some Senators to be objecting.
Under the Night Work (Bakeries) Act, 1936, Section 9, a member of the Garda Siochána may ask "of any person found in such premises such questions in relation to the said premises and the work done and the business carried on therein as such member shall think proper, and may demand of any such person his name and address." If the person refuses to supply the information or fails or refuses to answer the questions to the best of his ability, the penalty is £10.
Under the Noxious Weeds Act, 1936, Section 2, and again under Section 177, sub-section (b) of the Road Traffic Act, 1933, a member of the Garda Siochána may obtain similar information and also under the Turf (Use and Development) Act, 1936, a person must give the information required and the same applies under the Shop (Hours of Trading) Act, 1938, Section 9.
I consider that it would be impossible to enforce the Bill and that the Bill would not be effective, unless that section was included, and in view of the fact that it has been included in so many other Acts, I fail to see why there should be any objection to including it now. So far as the question of privilege is concerned, the fact that the word "reasonable" is included——
We cannot argue the amendments all over again. It would be very unhappy for the Seanad to have to do so.
Senator O'Quigley has already referred to privilege, but as that point has not been pressed, I do not propose to say anything else.
I do not wish to say anything about the merits of the amendments because I think we amply discussed those on one occasion in this House. I think it a pity that we had not the benefit of Senator Walsh's opinion at that stage, because as far as I remember he is the only Senator from the opposite side of the House who has contributed a viewpoint on this matter. It would have been of value at that time. However, we are not now engaged in a discussion of the merits or demerits of the amendment. Like other Senators who have spoken, I do not think that it would be proper for us or that it would benefit anybody to insist on the amendment standing.
The Constitution provides that when there is a dispute between the two Houses, the view of the Dáil shall prevail and I think that is right and proper. I agree that they should have the last word. They have voted by a substantial majority in favour of the deletion of this amendment. The only purpose we could serve now would be to hold up the Bill for a certain length of time. I do not think we should do so and for those reasons I would not disagree with the motion that we should agree with the Dáil that this amendment should be deleted.
I disagree fundamentally with what Senator Walsh has said. The burden of his remarks, as far as I can see, is that we lost in little things some of the rights and privileges which we had. I think it was Lord Acton who said: "We lose our freedom by little things." Senator Walsh says that because of certain actions in the past on amendments similar to this, we should agree in this case. I think we should be most vigilant and demand our rights. It is a sorry commentary that we must pass this because some members of the Dáil or Seanad, in the past, were not there to see that safeguards were inserted to protect the ordinary people in their everyday dealings with officials and others.