Smelting Bill, 1966: Committee Stage.

Section 1 agreed to.
SECTION 2.
Question proposed: "That section 2 stand part of the Bill."

I should like to ask the Minister for my information what is the situation or in what circumstances would a person be liable on conviction on indictment. How is it intended to bring such a person to court on an indictment? The reason I ask this is that I have seen quite a number of Bills recently where those fines are imposed and a person gets tried summarily or on indictment but there does not seem to me to be any difference between the offence that is being committed. It is the one offence, a breach of a particular section in each case and here we have a case where a person on conviction on indictment will be fined so much. The same thing occurs elsewhere in the Bill.

The section provides for conviction only on indictment which means that the procedure envisaged in connection with offences under the Act is to provide by way of indictment and not summary conviction. Therefore, I think, if I understand the Senator correctly, the point he has in mind does not arise on this section.

It probably arises on section 6.

Question put and agreed to.
Section 3 agreed to.
SECTION 4.

I move amendment No. 1:

Before section 4 to insert a new section as follows:

"(1) Every licence made under this Act shall specify—

(a) the metal or metals and

(b) the pyrometallurgical or chemical or leaching or electrolytic or other process in respect of which the licence is granted.

(2) In the case of a licence granted under this Act within two years of the passing of this Act and not subsequently revoked under this Act, no second licence shall be granted in respect of the same or similar process of smelting the same metal or metals as specified in the said licence within ten years of the granting of the said licence.

(3) Notwithstanding anything contained in subsection (2) of this section the Minister may grant to a mining company or to any company associated with a mining company a licence to smelt any quantity of ore or ore concentrates produced by the said mining company."

On Second Stage the Minister indicated the circumstances in which this Bill came to be required. Among other things, he indicated that a certain interest had been in touch with him and that he had given certain undertakings to that particular interest as to the granting of what amounts to a monopoly for the purpose of smelting and so on. The Minister indicated in his Second Reading speech that it was proposed to grant these licences for ten years and on Second Stage Senator Dooge commented on the lack of definition, the lack of clarity in certain features of the Bill. It seems to me right and proper that there should be a definite period for the granting of a licence and that there should be an assurance that the licence would continue for a particular period. It seems to me to be necessary in a case where there will be, I rather think, quite a heavy capital investment that we should spell out in the Bill that the minimum period for the grant of the licence will be a period of ten years and that we should also spell out, as is provided in the section, the particular process and particular metals in respect of which this licence will be granted. It is for that purpose that the amendment has been brought and in order, I think, to give the Minister as well as the interest concerned and the interests that may be concerned in the future a statutory basis on which they can act. I grant that the Bill is so framed that the Minister can in his licence limit what time he likes.

At the same time, I think the House and the country are entitled to know by looking at this piece of legislation in what way, for what purpose and for what period of time those licences are authorised to be granted by law. It is to make that apparent on the face of the Bill that I move this amendment.

I should like to make clear as I tried to make it clear when replying to the debate on Second Stage what is being done under the Bill and the giving of a monopoly is true only in a very limited sense. I say that because I made it clear to the House that it was proposed on the one hand to allow any individual or company owning a mine to erect a smelter for the purpose of smelting ore coming from the mine of that person or company here in Ireland and on the other hand to allow mine owners to export the produce of their mine if they wish to do so.

Neither of those cases is affected by the proposals brought forward under this Bill. Therefore, it is somewhat of a misnomer to describe what is being done here as giving a monopoly. Secondly, I find myself unable to accept this amendment for a number of reasons but basically because the ten year period, which I mentioned and which incidentally, perhaps, might not have been made clear on the last occasion, would run from the date of commencement of the operation of the smelter. This is a particular proposition in relation to the particular proposal put forward to me but it is certainly conceivable that the group concerned, having found that the proposal was not feasible, might for one reason or another not proceed with it in which case I might find myself in the position of making arrangements with some other group.

In those circumstances I do not think it would be in the national interest that in any negotiation with such a group I should be tied down as I would be if this amendment were accepted. It would be in the national interest that I should have sufficient room to manoeuvre to make what appears to be the best possible arrangement with any such group. I think the objective which I can see as conceivable behind this amendment can be achieved in any event without it but if the amendment were accepted the freedom to negotiate, which I feel is essential and which might well be vital in the kind of circumstances I have outlined, would not be available and that it should be available.

The Minister's argument on the question of whether this is a monopoly is not very convincing. It is a limited monopoly certainly and as proposed in our amendment it would not be but as the Bill stands power is given to the Government to give any group a monopoly of smelting ores on behalf of other people. You do not hear people saying that CIE has not a monopoly on road freight because of the fact that people can carry goods in their own lorries or that CIE have not a monopoly in Dublin because people travel in their own cars. It is a monopoly and this is also a monopoly. What is proposed is that we give the Minister the right without any limitation whatever to grant a private group a monopoly for any period of years they wish and that no limit of any kind is imposed on this particular activity. It is contrary to good practice in any democratic country to give a power of such far-reaching character to a Government. We must be suspicious of any private monopolies. There may be special circumstances in which a private monopoly is justified, a monopoly of a limited kind, for a period. Concession, where the Government give a concession for a limited period to carry on a commercial activity, is an established practice, but it is one which is regarded with suspicion by the Houses of Parliament and by the public and there must in such matters be limits on the Government's freedom of action.

We were assured on Second Reading that this concession will be for a ten year period and this seems a proper thing to do, but if that is the intention we should incorporate this amendment in the legislation. The Minister made several objections to our amendment which do not hold water. First of all, his objection is that this group want a licence for ten years from the date of operation. It is provided in the amendment that the licence should run for ten years from the time it is granted and that it can be granted at any time within two years of the enactment of the Bill, thereby giving time for the smelter to be brought into operation.

If the Minister feels this is inadequate, then it can be modified. It may be that two years is too short a time and it can, of course, be extended so as to give a ten year monopoly of smelting for hire or reward from the time the smelter goes into operation. If inadequate time is given here, it can be modified.

The Minister has said he must have freedom to negotiate. This seems an extraordinary statement. The Minister and his predecessors have been negotiating an agreement for some time past to give this group a monopoly, without any legislative authority. How the Minister can say the introduction of this reduces his freedom to negotiate, I cannot understand. The fact is that with this Bill, he can go to any group and say: "I have legislative authority for negotiating this arrangement for a ten year period." If the group made a case that this was not sufficient—and I would hope the Minister would regard any case with suspicion—if that case were made, the Minister would do exactly what he had to do in this case: he would go to the Houses of the Oireachtas.

He could hardly have promised them a monopoly of ten years in the recent negotiations without pointing out that this present legislation has to be passed by the Houses of the Oireachtas. He would not be in any worse position than he is in now, but rather a better position, because he would have the evidence of the Oireachtas that he is willing to consider ten years as reasonable and having this evidence he could hold out as good a prospect as he is enabled to hold out to these people in this Bill of getting the Oireachtas to accept any agreement reached. Therefore, it seems there are no grounds for refusing the amendment.

The amendment is important because I could not conceive myself as agreeing to give the Government power to give monopoly which a Government could not revoke without a breach of an agreement, which would redound to the discredit of the Government of this country and would undermine confidence in the honesty of the Irish Government and their willingness to keep their word. I do not want to get into the position where a monopoly of this kind can be given to a private group and we could not remedy that situation and take that back into our hands, except with detrimental effects to the integrity of the Government.

I would be prepared to consider a proposal from the Minister to modiy the amendment in order to give him greater leeway if he feels greater leeway is required, but in no circumstances can we give him unlimited power of this kind to give this sort of monopoly with no limitation. Therefore, I ask him to reconsider this matter between now and Report Stage and come back with an amendment, if he finds our amendment undesirable.

The amendment here is designed to meet the case as he stated it. There was nothing in his Second Stage speech to indicate that he contemplated any possible arrangement where the period of the concession would be other than the ten years. He says:

. . . . it was my intention, upon the enactment of this legislation, to give this company a licence and to arrange that for a period of 10 years from the commencement of operation of their smelter no other licences for the smelting of lead and zinc would be issued.

This is a clear statement of his intention. This amendment has been drafted having regard to his stated intention. He has now modified this intention and says he is not at all certain that this proposal will go ahead on the basis on which he sought agreement to this legislation. I am disturbed by the fact of the grant of a monopoly in any event, which I think in its own right is objectionable, and I am not prepared, on the grounds that the Minister has changed his intention since Second Stage, to concede the right to give an indefinite and private monopoly of this kind.

I would ask the Minister to reconsider this and to take it away between now and Report Stage and come back with some proposal to give him whatever leeway he requires which would avoid putting this country into a position which would be objectionable with a Government of any complexion, giving this kind of monopoly of unrestricted character. I would ask him to reconsider the matter between now and Report Stage.

Perhaps I ought to say another word on this. First of all, the only reason I mentioned the question of ten years from the commencement of smelting was that I was not sure whether it would be agreed on Second Stage that it would be dated for ten years. Secondly, I think Senator FitzGerald has missed the point I was trying to make, which was not that I was going to contemplate going beyond ten years, although this was conceivable, but that if I wanted to make it shorter this amendment would oblige me to give a ten year period.

Also, I did say to the House that there was a proposal and I explained what it was. I explained that an undertaking had been given and how I proposed to operate this Bill if enacted. I said, in addition, that the idea of giving that undertaking was to enable a feasibility study to be carried out and that an important aspect of that was the obtaining of the necessary and substantial capital that would be involved.

Clearly, when I talked about a feasibility study and the difficulties involved any reasonable man would contemplate the possibility that this arrangement might not go ahead. I think it will. I hope it will. It would be unreasonable to assume that because a person decides to engage in a certain business there would be no necessity for a feasibility study. Therefore, I think Senator FitzGerald is wrong in suggesting there would be any change of ground here at all. There is no change on that ground.

Furthermore, I wish to point out that in the proposed amendment, in subsection (3), there is something put in which strikes at the very root of the undertaking I gave, and reference has not been made to it. This would enable a company not alone to erect a smelter for the smelting of their own ore, produced here, but it would enable them also, by loose phrasing, to associate in some way with companies around the world and to bring in ore from outside to be smelted here. This strikes at the whole root of the arrangement made. For all these reasons I find myself still unable to accept the amendment.

There are one or two points of which I should like explanation. Am I to understand it to be the Minister's intention that he will grant the licence before the feasibility study has been completed?

I have not said that. What I intend to do when the legislation is enacted is to grant a licence subject to conditions. If, in fact, this is before the feasibility study has been completed, the conditions will take account of that fact.

I was under the impression from what was said on Second Stage that it was the Minister's intention to grant the licence at the close of the feasibility study.

It depends on time. If the licence were being granted before the feasibility study had been completed, the terms of the licence would have to take account of it. The Bill itself indicates the kind of conditions that might be imposed.

I certainly had the impression when I drafted the amendment that the position would be that the licence would be given at the point when the smelter was about to be constructed. It is probable it might be better to re-word subsection (2) in regard to the provisions of subsection (3) because the point the Minister has made in regard to drafting is a valid one. As drafted, the amendment certainly would allow the importation, or not prohibit the importation, of ore or ore concentrates for smelting in this country. That could be met by amending the wording to provide for the smelting of ore "produced in this country by the said mining company". That would meet the point. On the question of association, I mentioned that point on Second Stage and there is a difficulty about drafting it here. The intention in putting down the amendment was not to produce a final, polished amendment but to carry out the intention I indicated on Second Stage—to put the guarantee in statutory form. That is the purpose of this amendment and it is the principle which must be decided at this stage. If it is a matter of carrying that purpose into effect, the wording can be made a matter for discussion and agreement on Report Stage. The issue here now is whether a guarantee in regard to something which is monopolistic in character should be given as a private executive act by the Minister or by public Act of the Oireachtas. That is the net issue here and I ask the Minister to consider it carefully.

I have given it a good deal of consideration and I should prefer to do it in the way Senator Dooge suggests but I do not think it is feasible in the circumstances. One must remember again when talking about monopolies—I have already dealt with the point—that we are dealing with something which does not exist in this country and that the primary objective of the Bill is to enable us to get a smelter in this country and I have approached it on the basis of which is the most feasible way of doing that. The objectives Senator Dooge has outlined are being met because the conditions of the undertaking given have been made public and have appeared in the records of both Houses of the Oireachtas—there is public knowledge of it. On the other hand, I wish to maintain freedom to manoeuvre. One possibility is that the feasibility study might be favourable but that the people concerned might decide not to go ahead and I would find it necessary to negotiate with another group. I should want to negotiate on the best possible terms and under this amendment I would not be free to do so.

Up to two years.

I would have to get ten years, not up to ten years. The objective is being met by the way we have handled this. At the same time, I would have freedom to manoeuvre and that is in the national interest. I would not have it under the amendment.

There does not seem to be too much between us—it is a matter of feasibility. With the same objectives, it might be possible in some way to meet this. The Minister has been harping on the question of ten years and of being tied to ten years. Subsection (2) could be redrafted to allow this degree of flexibility. The Minister has been putting the case that if, having dealt with a first company who found they did not want to go ahead, he might have to negotiate with another company. Even in that eventuality, a one page Act could remedy it. What we are talking about is not so unfeasible. If we redraft it, will the Minister consider the entire matter between now and Report Stage or is it the position that he has set his mind adamantly against any such amendment?

I do not think it is possible to devise the kind of amendment the Senator has in mind to meet the conditions which must be given.

This amendment was drafted late one night after two days campaigning in County Clare and, therefore, it might not have been drafted in the best circumstances. I ask the indulgence of the House to withdraw the amendment with a view to having a look at it between now and Report Stage.

Amendment, by leave, withdrawn.
Question proposed: "That section 4 stand part of the Bill".

I note that there can be a substitution of one licensee for another and the manner in which it is proposed to effect the transfer is by the Minister substituting the name of the new licensee for the old licensee. On that kind of transfer of the interest of A to B will there be stamp duty payable or is this method being adopted for the avoidance of stamp duty? I take it the licence will be a valuable commodity.

I must confess I have not given any thought to the question of stamp duty. The reason for the manner proposed is twofold. First, if we grant the licence prior to the completion of the feasibility study we should be granting it to the company carrying out the feasibility study. It is very likely that if that feasibility study is favourable and if another company is formed to take into account the various interests involved, financial and otherwise, it would be necessary in these circumstances to transfer the licence to that company. In the second place, there is the possibility that the smelter operating for some years might be sold to another company. To allow for that situation, it is proposed to make the transfer of the licence as reasonably straightforward as possible. No thought, that I am aware of, has been given to the question of stamp duty.

As well as other matters, it looks as if the financiers will not come into it, too. I take it that the licence will be transferred?

The licence could not carry that.

That is a matter for the Minister for Finance.

Question put and agreed to.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill".

This raises a matter of considerable principle. I do not know if the matter was adverted to when the Bill was going through the Dáil. It seems to me that, here again, we are faced with the position where a Minister of State grants a licence which will turn out to be a valuable asset and, on the strength of it, there may be a considerable expenditure— running, perhaps, into millions of pounds—on the part of the licence holder. What is being provided for here—and it is quite right so to provide—is that the licence may be revoked if the licence holder does not comply with certain conditions.

This is another instance of sections being slipped into a Bill providing that the Minister who grants the licence is again the person who says "I shall withdraw it" with no inquiry, nobody to say whether or not the person is in default. The Minister is again judge and jury in this kind of case. As I understand the position, there may be hundreds of thousands, perhaps millions, of pounds involved in the decision of the Minister to withdraw a licence from somebody because, in his view, they are not complying with the conditions with which he will have required them, in writing, to comply. There may be circumstances which make it difficult to comply with the conditions or there may be circumstances where there could be two views on whether the conditions have substantially been complied with.

I think it is wrong that, merely upon the say-so of the Minister, the licence can be withdrawn. Presumably this will be a private company and its accounts certainly will not be open to public scrutiny in the same way as those of semi-State bodies. A company in that kind of situation and, in order to "keep in", as one might say, with the Minister for the time being—it may well be another Minister for Industry and Commerce and another Minister of a different Party——

What a hope you have.

I understood the Fianna Fáil Party were out to try to ensure that the people would get a change, at some time in the future——

——that the people would get an opportunity——

I can tell one way to get a decision in a very short time and you do not have to change the voting system.

Will Senator O'Quigley please keep to the section?

Senator Ó Donnabháin's interruptions are always unhelpful.

They are revealing.

Yes, they are revealing. I think it is wrong a company which may, perhaps, have millions of pounds involved in a particular venture—the continuance of that venture depending upon the continuance of their licence—should be beholden to a Minister of State. I think that is wrong. There are so many temptations to which the company may be subject and there are so many pressures which may be applied to the company that I think it is absolutely wrong to say that it is the Minister who can decide, in certain circumstances, that he will withdraw the licence and, in other circumstances, that he will not withdraw it. A lot of that gives rise to a great deal of the disquiet one currently hears about in this country.

It is absolutely wrong that a Minister will be entitled to withdraw the licence without any inquiry by any outside body, without even the limited inquiry we have at the present time under the Local Government Planning Act by an inspector of the Minister, with no opportunity necessarily given or which must be given to the holder of the licence to state his case and to have it heard even by somebody appointed by the Minister. With no such opportunity in that kind of situation, I think it is absolutely wrong that the power to revoke the licence should be vested in the Minister. I am not saying that the Minister should not supervise—I think he must—the operations of the company and see that the conditions are properly carried out and should not be in a position to serve notice on them in writing if he is of opinion that the conditions are not being carried out. I am not saying he should not have that power. However, if it is necessary to revoke the licence, it is not the Minister who should have the power to revoke it.

All of this brings us back again to the need in this country—where one has so many powers which are vested in Ministers to grant things—to have some kind of body—I do not say necessarily the courts—some kind of administrative tribunal that will be independent of a Minister of State, that will do justice and, when a decision is taken by that tribunal, everybody will be quite satisfied that justice has been done. If the Minister wanted to revoke the licence and came into Parliament and said: "Such and such has happened; certain things were not done; the position now is that this licence must be revoked; I want to give this licence to somebody else", and maybe a motion is passed by one or both Houses of the Oireachtas, at any rate, it is done openly and it is not the Minister alone who is doing it in the secrecy and privacy of his Department. That situation perhaps would meet the principle I am speaking about. But nothing like that will be done. I cannot see how any Minister can justify his revocation of a licence upon which hinges an investment of hundreds of thousands of pounds.

I think the Minister should indicate that he will be prepared to go even farther than the Minister for Agriculture and Fisheries went on the Marts Bill when he provided for a limited inquiry by a person outside himself when he proposed to revoke a marts licence for breaches of certain conditions specified in the Bill. The Minister should go the further distance of agreeing to make the revocation of this licence the duty of some person who will be independent—not necessarily a judge or a barrister: you can make it a mining engineer or anybody else you like so long as it is somebody who would be outside the Minister and who would not be subject to any pressures either for or against its revocation. I must say that I am at fault, indeed, in not having put down an amendment on this earlier, but it goes to show the kind of mood we get into. Once we realise that the whole business of licensing is necessary we are inclined to accept the rest of the Bill. It is only when one comes to examine it, perhaps after the fresh air of Wicklow, like Senator Dooge, that one gets a clearer picture.

Senator O'Quigley is correct in saying that the amount of money involved in a smelter is substantial; in fact, it would run into millions rather than hundreds of thousands. But he is wrong, in my opinion, in suggesting that this section provides in effect that a smelting licence may be revoked more or less at the whim of the Minister. It sets out the conditions under which a licence may be revoked. They are set out as criteria which may be determined objectively. We may take it as quite certain that when an investment of that nature is involved any unlawful or frivolous revocation of a licence by any Minister in those circumstances would certainly result in an application to the courts to determine whether or not the Minister had acted in accordance with this section in revoking the licence. If he had failed to do so he would, of course, have acted ultra vires and the licence would not be revoked. I think that there is adequate protection here. I do not see that there is any necessity for anything more, having laid down the criteria objectively and not making them subject to the opinion of the Minister but matters to be determined objectively. I think that there is quite sufficient there to protect the interests involved in the event of any misuse of the powers vested in the Minister under this section.

The Minister, I am sure, trusts himself not to act capriciously and not to act in any way which would be unfair. I am sure that many of us would trust this Minister who, I am sure, has very high standards, but there is always a question not alone of principle involved in these matters—and it seems unpopular nowadays to talk about principle—but also a question of what I might call practical politics involved. This Minister might well, having granted this licence, if the conditions were not being complied with, adopt a somewhat different attitude to another Minister. The question does arise whether we are going to vest the power to destroy an investment of several million pounds in a Minister without any inquiry.

The Minister makes what appears on the surface to be a very good case by saying that the revocation of a licence would be determined on the basis of objective standards set out in the section, but of course objective standards have to be interpreted in a subjective manner, and when it comes to determining whether a licence holder has failed to comply with the conditions that is a very difficult thing to decide. He might not have neglected to comply with the conditions, and he might very well have done his best but for lack of technical skill or some breakdown be unable to comply with it, and require more time. These are all highly subjective judgments. There is no use in the Minister saying that there are objective standards laid down in the section. I do not see any of them.

In the last resort what will determine whether a licence is revoked or not is the opinion of the Minister. I am surprised at the Minister saying that if the Minister fails to comply with the provisions of this section the company or licence holder concerned can apply to the courts and get a declaration that he has acted ultra vires and that, therefore, the licence would not be revoked. Consider that for a moment. First of all, by the time the licence is revoked the person is out of business. Even if he could go to the courts his business is closed down. Probably the company would have had to go into liquidation because of pressure from creditors to pay off debts, and so on. So that the idea of going to the court is really closing the door after the horse has escaped.

What about an interim injunction?

I will deal with that too. First of all, the Minister's suggestion is absolutely impracticable. Secondly, the Minister, who is a lawyer, like myself, must be absolutely aware and highly conscious of the fact that in any of these cases where a Minister has discretion and where it is the Minister's opinion that is provided for as the determining factor in any enactment, the courts will run a thousand miles before interfering with the exercise by the Minister of the discretion given to him by legislation.

The point I was trying to make is that this section does not provide for anything in the opinion of the Minister. It says that a licence is to be revoked if certain conditions are not met, and it sets them out. It does not say anything about the Minister's opinion and, therefore, the case that the Senator is making does not apply in this case.

The Minister is talking like a lawyer now. One must always be very careful about how one talks in this House. What else can it be but the opinion of the Minister? He must be satisfied that the conditions have been broken, otherwise he would not revoke the licence. Or he does not have to be as strongly convinced as that, but he must be of the opinion that the conditions have been broken and, therefore, he revokes the licence. The section does not even say that. It says that if the conditions have not been complied with the Minister may revoke the licence. There is no doubt at all about it but that this section will be considered by the courts in the way many other sections giving power to a Minister to exercise a ministerial function have been interpreted. When a Minister has been given power by the Legislature our courts run a thousand miles away from any interference with the Minister in the exercise of his discretion.

They did not always do that.

I should like if the Leader of the House would tell me what he has in mind.

There is a lot of talk in the other House at the moment about certain Ministers and the way that they did not worry about interfering with the opinion of the Oireachtas.

The trouble about people like the Leader of the House speaking in relation to a section of this kind is that they can never understand what it is that the courts do when they give a decision. The courts in considering that section would merely say "Reading that section it means this—", and they give effect to it. Interpreting the Constitution, for instance, they say "This is what the people said in their Constitution", and if the decision falls one way that is it, and if the decision falls the other way that is it too.

The Senator says that the court would run a mile from interfering with the decision of any Minister.

What I am saying is that if the courts say that this section gives the Minister power to revoke a licence and he does not have to hold any inquiry, then if the Minister revokes the licence there is nothing the court can do about it because that is the Minister's power under the section.

It is refreshing to hear Senator O'Quigley on that line now because on every Bill that has ever come before the Seanad he has insisted on clauses going in to take the power out of the hands of the Minister and give it to the courts. Now we find that the courts are no good.

The Chair would like to remind the House that undue repetition is not in order.

Question and answer is very often instructive. I am not asking the questions but I am providing the answers. The truth of the matter is that the Minister under this section has absolute power, unfettered power to revoke a licence dependent upon nothing except his own opinion and assessment of the situation. Consequently, this is a section which I find quite unacceptable and I feel that we will have to make some provision at a later stage for amending it. I hope that the Minister will have an open mind, at least as open as the Minister for Agriculture had on the Marts Bill. He ought to have it even more so on this Bill because the amount of money at stake is immeasurably greater and, therefore, his responsibility is correspondingly higher than was the case under the Marts Bill. If there was a case under the Marts Bill for providing some kind of limited appeal from the Minister's decision to revoke a licence, there certainly is an even greater and stronger case under this section for the provision of some form of appeal outside of the Minister.

Senator O'Quigley would have—I was going to say a much stronger case—let me say a case if this section read: "If in the opinion of the Minister a holder of a smelting licence. . . . " But it does not read that way. What it says is:

If a holder of a smelting licence fails, neglects or refuses to comply with a condition. . . .

Senator O'Quigley knows as well as I do that there is all the difference in the world between that section and the kind of section that it might have been and which appears in other statutes—"If in the opinion of the Minister", and the manner in which the courts approach a section like this and a section which says "If in the opinion of the Minister. . . " is quite different because in the case where it says it is depending on the opinion of the Minister it has to take a very unusual set of circumstances to enable a court to interfere at all but here there is no question of the opinion of the Minister. The criteria are laid down objectively and if the Minister does not act in accordance with these provisions it is open to the courts to set aside the action he takes and to set it aside quickly and it seems to me that any precaution that could reasonably be requested is obtained under this section as it is worded.

Question put and agreed to.
SECTION 6.

I move amendment No.2:

Before section 6 to insert a new section as follows:

"(1) In the case of the granting or transfer of a smelting licence the Minister shall lay before each House of the Oireachtas a statement showing-

(a) the name of the person to whom the licence is granted or transferred,

(b) the metal or metals specified in the licence,

(c) the pyrometallurgical or chemical or leaching or electrolytic or other process in respect of which the licence is granted, and

(d) whether the licence is a general one or is restricted to ore or ore concentrates produced by a specified mining company.

(2) In the case of a revocation under this Act of a smelting licence, the Minister shall lay before each House of the Oireachtas a statement showing particulars of such revocation."

I feel that this particular amendment gives effect to much of what the Minister said on amendment No. 1. What we are trying to do is to make provision here for the laying before each House of the Oireachtas of the name of the person to whom the licence is granted. There does not seem to me to be any reason in principle why this should be objected to. Secondly, we suggest that the metal or metals specified in the licence and, thirdly, that the pyrometallurgical or chemical or leaching or electrolytic or other process in respect of which the licence is granted should be laid before each House. That seems to me to be information which cannot affect anybody but which should be made known publicly because a monopoly of a limited kind is being granted and the fourth thing we want is a statement showing whether the licence is a general one or is restricted to ore or ore concentrates produced by a specified mining company should be laid before each House. It is also being provided in sub-section (2) that in the case of a revocation under this Act of a smelting licence the Minister shall lay before each House of the Oireachtas a statement showing particulars of such revocation.

Whenever we establish a semi-State body—and we have quite a number of them in this country—we are quite prepared to lay down the various conditions under which they will operate. These are either embodied in statutes or in some cases are contained in the Articles of Association of public companies. I feel that it is only right and proper in a case of this kind and there are precedents for this kind of enactment, that we should, when we are dealing with a matter which is of public concern, lay all the facts before the public. If there is nothing to hide there is no reason why they should be hidden. Accordingly, I hope the Minister will see his way to accept this amendment.

I am afraid I cannot see my way to accept the amendment, not because there is anything to hide because there is not but, first of all, because the procedure suggested in this amendment is quite unusual in relation to licences and acceptance of it might have much wider repercussions than would be envisaged in this amendment. Secondly, as drafted, the amendment would require to be a good deal more specific in regard to the form of the licence than I am in a position to be at the moment. Thirdly, and most important, it seems to me that the information which it is sought to have made public under this amendment is information which can be made public quite easily without this amendment at all.

I can conceive of no reason why the Minister for Industry and Commerce at any time would not be prepared to give the kind of information sought here and there are various methods, including Parliamentary Questions in Dáil Éireann, which would elicit this information without difficulty and since the implications of accepting the amendment here could be very much wider than are envisaged and since the objective required which is to make the information available to the public can be and will be I believe achieved without this, I must resist the amendment.

We are in an extraordinary position in that even when the Minister agrees with us he chooses to disagree with us. He says that all this information we are seeking here can be made public and the only reason that he will not accept it is that he says we would want to be a little more specific. I readily concede that. The Minister is in a much better position to be specific on these matters because he has very skilled people to advise him than people like myself and Senator Dooge could possibly be. Therefore, I would have thought that if the Minister were prepared to accept in principle or at any rate not to disagree in principle with the objective of the amendment he would accept it and get his parliamentary draftsman and his own advisers to make it into the kind of amendment that would be closer to his heart. As regards the other objection that the Minister has that this would be unusual in relation to licences, I think it is also correct to say that this particular licence is very unusual in that it is a licence for a limited form of monopoly. Therefore, the public are being debarred from a particular activity and that particular activity which up to now would have been lawful to engage in will now be an offence. I feel that the public are entitled in a democracy which I believe we live in in their legislation to say exactly what the Minister shall reveal and to say that by law. The Minister says this information can be got by Parliamentary Question. I have not a great deal of faith in the Parliamentary Question for eliciting information of this kind because I have seen time and again where questions have been put down in the Dáil and the answer is that this disclosure would interfere in the private affairs of the company.

This is the fine argument which it is difficult to penetrate that the Minister could not, without the consent of the other party to the licence, disclose this information. This is the kind of excuse we have seen from time to time and that is the answer that would be given. Although he would not have bothered his head to have sought the information it would be said that he could not, without the consent of the other party to the licence and whose private property the licence would by then have become, divulge this information and that it would be contrary to established practice to do so. We know that the reply to the Parliamentary Question straight away is "contrary to established practice". For that reason I think it is highly desirable, as I say if there is nothing to hide, that we lay it before Dáil Éireann or Seanad Éireann so that everybody can see it. I see no reason for the Minister refusing to accept this and, accordingly, I press this amendment.

Question put: "That the new section be there inserted".

Will Senators seeking a Division stand in their places?

Senators O'Quigley, Dooge, Garret FitzGerald and Murphy rose.

The names of the Senators will be recorded in the proceedings.

Amendment declared lost.

Senator O'Quigley should be cashiered for wasting the time of the House.

I thought some of the independent people on that side of the House might have voted with me.

Question proposed: "That section 6 stand part of the Bill".

What I want to point out is that I see here that if a holder of a smelting licence fails, neglects or refuses to comply with a condition attached to a licence he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £100 or on conviction on indictment to a fine not exceeding £1,000. In what circumstances will there be a summary conviction, and in what circumstances will the offence warrant trial on indictment? I, frankly, do not understand the position.

The position is that, as I think the Senator pointed out earlier, this kind of provision occurs in many Bills, the objective being to ensure that, where an offence does not appear to be of too serious a nature, the whole paraphernalia of an indictment need not necessarily be invoked, and this is not only in the interest of the State but also in the interest of the person accused. In effect, the procedure by way of summary conviction or indictment depends on the nature and gravity of the offence.

I find it extremely difficult to understand how the Attorney General will decide whether the particular offence is one which warrants summary trial in the district court or return for trial either to the circuit court or to the criminal court. However, that is a problem for the future Attorney General. I do not see any logic in the situation. I will leave that aside. I do not understand it even after what the Minister has said. I divine that is what is in mind but how that will be operated I do not understand.

I want to refer to the new situation we are creating in this Bill. It is to be observed that apparently a minor infraction of a smelting licence, according to the Minister, will warrant a criminal prosecution in the courts. The Minister says that for a minor infraction we will have a summary trial and these minor infractions—is if he fails, refuses or neglects to comply with the condition attached to a licence—are related to the fact which I stated a few minutes ago. Observe what the Legislature is doing. They are enacting legislation which will be a precedent for future legislators. The House rejected an amendment on which a division was challenged a few minutes ago. Observe what the Minister and the House are doing. Under section 5 we use the exact same phraseology—fails, neglects or refuses to comply with the condition attached to the licence. The Minister may revoke the licence. It may be only a minor infraction and yet this House is saying the Minister may then withdraw the licence because of a minor infraction and upset the whole investment involving millions of pounds.

If the Fianna Fáil Party think that is good law and good policy, there is nothing I can do to dissuade them but I want to say that to invest those powers in a Minister and do it in written form in legislation is bad public policy and bad for democracy. I can never understand how 11 members nominated by the Taoiseach to serve in this House so frequently swallow the Fianna Fáil line.

Perhaps the Senator will concern himself with the section before the House.

Now and again a section of this kind——

The conduct of other Senators is not in question on this section.

Can he accuse the Fianna Fáil Government of being guilty of what the Senator's Government was guilty of when they closed down on the constellations and closed down the chassis factory?

We wiped out TB.

The Senator will continue on the section.

I regard it as less of an offence to substitute TB beds for constellations than an infraction of a smelting licence.

You did not even do that.

I deplore the failure of the House to appreciate what is being done in this section and what has been done in the previous section and in the Bill as a whole. I cannot understand why people will accept day in day out this gradual and studied encroachment on the liberty of the people of this country.

In time there will have grown up a sufficient body of precedents for any Minister at any time for more repressive measures than are on the Statute Book at the present time. This is one at this time. We are making a minor infraction of a smelting licence an offence on summary conviction or on conviction on indictment. If I were to judge even on a minor infraction, I would choose trial on indictment because I would think I would have a better chance of getting a fairer view of my operations from 12 men from the street, 12 of the decent citizens of this country, than I would have from one person on a summary trial.

You are going back to the courts now.

What the Minister has had to say about the section highlights what I had to say about another part of the Bill and I suppose I will not be allowed to reply to it again because it would be repetitious.

Question put and agreed to.
Section 7 agreed to.
SECTION 8.
Question proposed: "That section 8 stand part of the Bill."

In section 8 there is a further penal provision contained in this Bill. There are so many penal sections contained in this Bill and the punishments are so great, including the punishment under section 2 of a fine of £500 a day for every day an offence is committed, that they are almost calculated to frighten off anybody coming in and looking for what we call this monopoly. What is extraordinary about section 8 is that not alone will the company be fined, or an incorporated body be fined, presumably on indictment or after conviction on indictment on an offence but we will fine officers or servants of the company as well. It is here that we find "Where an offence under this Act is committed by a body corporate or by a person purporting to act on behalf of a body corporate or an unincorporated body of persons, and is proved to have been so committed with the consent or approval of, or to have been facilitated by any default on the part of any person. . . " It is the wording "to have been facilitated by any default on the part of any person" which I think is going a step too far. The Minister will be well aware that in many statutes mere default is not sufficient to create an offence even in the case of the administration of an asset which is purely a matter on the civil side. An administrator or an executor will not be penalised to get in the assets unless it is due to his wilful default. In this section we ought to say that the director or secretary of a company should not be liable to conviction for mere neglect alone—that mere neglect is not sufficient to constitute an offence, that there should be actual lawful and palpable neglect, such neglect to amount to a criminal offence. To say that an offence has been "facilitated by any default by any person. . . " is going much too far.

I accept that directors and secretaries of companies are very often the villains of the piece rather than the body corporate but the mere facilitating, by default, of the commission of an offence on the part of a servant, which a director is vis-á-vis the company, is going too far. The Minister might indicate that he will accept an amendment on Report Stage to make it a punishable offence only if it has been proved that the default is wilful on the part of the person concerned.

Senator O'Quigley has referred to the relatively heavy penalties provided in this Bill. I said "relatively" because one must relate what we are dealing with, which is a smelting operation, which could entail many millions of £ as a capital investment, to what the Senator said earlier could lead to fairly substantial profits. That being so, and in the circumstances in which we are proposing to give a licence in the national interest, with certain conditions attached, it is not unreasonable that we should insist that those conditions will be fully complied with in return for the benefit which is being conferred on the licensee.

The Senator accepts the principle that the officers, the directors of the company, could very well be liable, and I am sure he accepts that where the penalty can be applied only to the company and not to the officers it might be ineffective. It seems, therefore, that it is not unreasonable we should provide for relatively heavy penalties—not so heavy in relation to the size of the undertaking, of the amount of money involved, and that the penalties should be applied to the officers, the directors, where they are guilty, as it says here, "with their consent or approval or was facilitated by default on the part of that person". The conditions involved are important from the point of view of the national interest. It is possible that quite a valuable concession is being given and it is not unreasonable, therefore, that any failure to comply with the conditions or any attempt to avoid the obligations imposed in the conditions should be dealt with fairly clearly. That, in effect, is what this section provides.

The arguments which the Senator made earlier in regard to a monopoly or kind of monopoly being given under this Bill are the strongest arguments in favour of the approach we are adopting here in regard to the penalty sections, particularly section 8.

Will the Minister give some indication of the kind of conditions which will be attached to the licence? We have no idea what the conditions are likely to be. Would the Minister like to do that?

I have given a general idea of the kind of conditions that will apply. I do not think I can give any further idea until there is a specific case before us. I have given a general idea of the kind of conditions that will apply.

I am not saying that where we are granting a monopoly we ought not to insist that the conditions should be fulfilled—I made that clear earlier—nor do I take exception to the conditions in this section which provide that, where an offence is committed with the consent or approval of the directors, the person concerned should not be found liable. What I take exception to is the other set of circumstances in which it is proved to have been merely facilitated by default of a director or servant. I insist that it should be made clear it is not mere oversight or neglect involving the director.

For instance, I had experience recently of a servant of a public body taking a running dive at a particular matter. With the best will and in the most honourable way, he made a ghastly error of judgment which might not have happened. I should hate to think that a decent person like him who, because his default was not wilful—it was culpable but not wilful— in a company, by an error of judgment, and who is guilty of facilitating an offence or breach of conditions simply by this error of judgment, should have extended to him the rigours of criminal law. That is going a bit too far.

The circumstances in which the default occurs would be investigated in any prosecution and if the circumstances warrant it I have no doubt the court would take account.

And find him guilty.

Question put and agreed to.
Sections 9 and 10 agreed to.
Title agreed to.
Bill reported without amendment.

We should like the remaining Stages now. I explained the circumstances to the Members of the Opposition.

In view of the provisions of section 5, which it is necessary to state on Report Stage——

I understood we would be facilitated in regard to this matter because of the impending departure of the Minister. I took it we would get all Stages this evening.

Shall we take the Final Stages?

No. The Leader of the House must have misunderstood the position.

I did not misunderstand.

What is the wish of the House?

If the Senator insists on refusing to facilitate us, we will take the Report Stage in the morning.

I will not be steam-rolled or browbeaten in this fashion. We are dealing with a Bill which, according to its Title, was introduced on 13th December, 1967 but which was ordered by Dáil Éireann in December, 1966. We are now in 1968 and we will not be browbeaten or bullied in this fashion. If the Government want to have a vote on this, and do not want to give the Opposition an opportunity to put down considered amendments on this, they can do so and illustrate to the public their mentality, where they have the power and the numbers, and how they will deal with people who want to do their job. I shall be delighted.

We had the power and the numbers on the Marts Bill. We gave them ample time to talk. We let them talk until they were worn out talking. I made it clear to the Senator and to Senator FitzGerald that the Minister had an arrangement which made it necessary for him to leave on Friday, that he would not be here for some time and was anxious that this Bill should be put into operation as soon as possible. I ask that the Minister be facilitated in this matter. I understood from both Senators that that would be agreed to.

The Committee Stage.

In the event, we can either take a vote and take the remaining Stages now, or, in order to facilitate Senators, give them until tomorrow morning for the amendments.

The last thing I want is to appear to walk out of any undertaking I have given. I understood the Minister wanted to be in the Dáil at 4 o'clock this afternoon to deal with an Estimate. I certainly agreed that we would facilitate him in that way and was agreeable to an adjournment of a discussion on this matter until the Minister——

You did not even facilitate him in that respect. You kept the debate going.

There was nothing to prevent the Minister from doing so. He could have taken this at 9 p.m.

If the Leader of the House wants this tomorrow, he will have to have a vote on it. I do not want it earlier than next Wednesday.

If Senator O'Quigley does not wish to put down any amendment for tomorrow morning, we might as well take it now. I am doing it to facilitate Senator O'Quigley to put down an amendment or amendments.

We have a very long Order Paper to deal with today. I have no civil servants to deal with this matter for me. I shall not have the time, between now and tomorrow morning, for this purpose. We meet sufficiently infrequently to be given the opportunity of considering Bills properly.

When will the next Stage be taken?

I propose that the next Stage be taken next Wednesday, 13th March, 1968.

No. Does Senator O'Quigley intend to put down an amendment if we schedule it for tomorrow morning?

I shall not have time to draft the amendment.

What is the decision of the House?

Next Wednesday.

We shall take it tomorrow morning in the hope that he will have time.

I shall not agree to that, either.

In that case I suggest we waste no more time. The Senator understands why we were anxious to get this thing done. I suggest we take it now.

Is that a motion?

I am opposed to that.

Question put: "That the remaining Stages be taken today".
The Seanad divided: Tá, 25; Níl, 6.

  • Ahern, Liam.
  • Boland, Gerald.
  • Brennan, John L.
  • Browne, Seán.
  • Cole, John C.
  • Connolly O'Brien, Nora.
  • Dolan, Séamus.
  • Eachthéirn, Cáit Uí.
  • Egan, Kieran P.
  • Farrell, Joseph.
  • Fitzsimons, Patrick.
  • Flanagan, Thomas P.
  • Honan, Dermot P.
  • Killilea, Mark.
  • McGlinchey, Bernard.
  • McGowan, Patrick.
  • Martin, James J.
  • Nash, John Joseph.
  • Ó Donnabháin, Seán.
  • O'Kennedy, Michael.
  • Ó Maoláin, Tomás.
  • Ryan, James.
  • Ryan, Patrick W.
  • Ryan, William.
  • Teehan, Patrick J.

Níl

  • Davidson, Mary F.
  • Dooge, James C.I.
  • FitzGerald, Garret M.D.
  • McAuliffe, Timothy.
  • Murphy, Dominick F.
  • O'Quigley, John B.
Tellers.—Tá: Senators Farrell and Ó Donnabháin; Níl: Senators Murphy and Garret FitzGerald.
Question declared carried.
Question proposed: "That the Bill be received for final consideration".

On Report Stage, I want to ascertain under the Standing Orders what are we to do when we have not had an opportunity of putting down amendments on Report Stage. Are we to be asked to go through the solemn farce in the Parliament of Ireland of having a Report Stage when we have not been given an opportunity through the weight of numbers of the Fianna Fáil Party and the 11 independent persons nominated by the Taoiseach——

——of putting down amendments?

The Senator knows very well that he was given an opportunity of putting down amendments.

We have here the attitude and the mentality of the Fianna Fáil Party, that if they have the power of numbers it does not matter a damn about anybody else.

We had it on the Marts Bill when you kept us here for a fortnight.

Is there any possibility of holding the Bill over briefly to give us an opportunity of drafting amendments, because it had been our intention to draft amendments?

It is a pity that you were not here. You would have seen the behaviour of Senator O'Quigley.

I must say that I am taken aback, because it was my understanding that there would be ample opportunity of drafting amendments and I had no idea that there would be an attempt to rush the Bill through like this.

An Leas-Chathaoirleach

It is the decision of the House to take the Report Stage now.

Are we not at liberty to change the Order of Business by agreement?

An Leas-Chathaoirleach

This is the order of the House in regard to its own business.

Is the House not at liberty to change the Order of Business?

It can change it, but I do not intend to.

I was assuming a certain amount of goodwill on the other side, and I was going to suggest that this could be left over for a brief period, and that we would move on to other business to allow us to draft amendments.

Perhaps the Senator is not aware of the offer that was made to meet tomorrow morning to have the amendments on Report Stage and that this offer was contemptuously rejected by Senator O'Quigley. I have no intention now of changing the Order of Business.

I will be engaged in the business of the House from now until the House rises at 10 o'clock to-night——

So will we all.

——so I will not have time to draft amendments for tomorrow morning.

It had not been proposed that we should meet tomorrow morning. The clear understanding was that we were not and, accordingly, a number of us have made arrangements and have other commitments, not all of them of a by-election character, and to suggest that we should meet tomorrow without notice in this way and that this is the only way we could put down amendments is an unreasonable proposal.

Dear Senator FitzGerald, this dalladh phúichín you are trying to put across now will not work. At the very start of business we were asked about the Dumping Bill and we volunteered to meet tomorrow morning if necessary in answer to Senator O'Quigley.

That is to dispose of the Second Stage.

The suggestion that there was no notice given that we were to meet tomorrow morning is nonsense.

We did not understand we were to meet tomorrow and we made arrangements accordingly and I do not think the Report Stage can be taken just like that. We suggest we should be given an opportunity to draft amendments so as not to make complete nonsense of the whole affair.

We decided to take the remaining Stages now.

The dictators have decided, so that is that.

An Leas-Chathaoirleach

The question is "That the Bill be received for Final Consideration".

Is my proposal on this matter then rejected?

An Leas-Chathaoirleach

I have not heard a proposal. I do not think that I can, immediately after the House has decided to do something, entertain a motion to some other effect.

I understood we decided to take the Report Stage today but any business can be adjourned by agreement of the House and I would point out that I myself approached the Minister a short time ago to ask him if we could help him in any way in regard to the dumping Bill and I would expect that we would be given the courtesy of an opportunity to draft amendments.

An Leas-Chathaoirleach

The House has decided that the Report and Fifth Stages be taken now. The Chair is endeavouring to have the Report Stage taken now by putting the question "That the Bill be received for Final Consideration".

I think it is in order for the House to change its business at any time by agreement. May I suggest a compromise here if I may stick my neck out? We have decided anyway that it will be taken now but would it meet the wishes of the Leader of the House if we took it after tea so that Fine Gael Senators can put down amendments.

I am concerned with two things: one is to get the Smelting Bill passed and the other is to get the dumping Bill passed.

All Stages of the dumping Bill?

I explained to Senators that the Minister would not be available and that we were anxious to be facilitated in these two matters. If it is an understanding that we can do business on that basis, then I am prepared to change the Order of Business or change the arrangement which was made here now but otherwise I do not think there is any point in it.

Could we be clear on this? It is not presumed to take all Stages of the dumping Bill. What we contemplated was the Second Stage. I was trying to help the Minister. If this could be deferred until after tea and if we could at the Minister's convenience arrange to take the Dumping Bill now or at some other time, we would be willing to do so.

We have ordered these other Bills and made arrangements with Ministers concerning them and if we are going to upset that arrangement now, the whole time table will be in a state of flux and chaos.

I am sorry. I was endeavouring to facilitate this Minister and that is why I suggested to him that we might take the dumping Bill out of order. If that is convenient, we will do it but if it does not help him there is no point in doing it.

How long does the Senator visualise it will take to deal with this amendment or amendments he proposes? Knowing the capacity of Senator O'Quigley to waste time, I dread the idea of making any arrangements about the Report Stage.

Senator O'Quigley's or any other Senator's ability to waste time is restricted on Report Stage by being able to speak only once.

When he starts he can keep going for a long time. If by giving time for amendments and taking the Report Stage, say, for half an hour tonight it would facilitate the completion of the debate on the dumping Bill, I would be quite prepared to do so.

Another package deal.

An Leas-Chathaoirleach

Is the proposition then that the House proceed to the Second Stage of the dumping Bill, that to be followed by the Report and Final Stages of the Smelting Bill?

Senators

No.

No, because we have other items ordered here which I want to get done.

I think a solution would be to take the Report Stage of this Bill at 9.30 or 10 o'clock and sit to 10.30. That will meet Senator Garret FitzGerald but I cannot see myself being in a position to propose any amendments at that stage. That is the obvious course to adopt.

Or earlier if the dumping Bill were completed.

What does that mean?

I am being more than reasonable and unusually helpful.

Perhaps in that case if we change the order to put the Report and Final Stages to follow the dumping Bill on the understanding that they will be completed tonight, how will that go?

And not to be taken later than 9.45.

Yes, that is my suggestion.

An Leas-Chathaoirleach

The proposal is that the Report and Final Stages of the Smelting Bill be postponed until after the dumping Bill but otherwise the Order of Business stands.

We agree to that but it is to be understood that it is under protest.

An Leas-Chathaoirleach

The order which the House has made in regard to the taking of the Report Stage now will have to be discharged and the new Order substituted.

Yes. I so move.

An Leas-Chathaoirleach

The motion is agreed.