Seanad Éireann debate -
Wednesday, 26 Jun 1968

Vol. 65 No. 7

Private Business. - Fishery Harbour Centres Bill, 1967: Report and Final Stages.

Mr. O'Quigley

I move amendment No. 1:

In page 5, lines 40 and 41, to delete "Acquision of Land (Assessment of Compensation) Act, 1919" and substitute "Land Clauses Consolidation Act, 1845 (as adapted or amended by or under any subsequent Act)".

There are some people who never give up, and when it comes to amendments of this kind, I fall into this category. I do not believe that one ought to give up when one believes in a particular principle. I have no doubt in the world that the Minister will not recommend that the House accept this amendment and I can anticipate the speech the Minister will make as to why the amendment should not be accepted. I think, however, that it is right to say that where the legislature ordains that a particular authority or body should have a right to compulsorily acquire another person's land or part of it we ought to give to the owner of that property adequate compensation.I have said before on the Mines and Minerals Development Act of 1950 or whenever it was and on various other Bills dealing with land acquisition that the Acquisition of Land (Assessment of Compensation) Act, 1919 is an unjust measure, and that it does not give compensation to the owner of the property for the value of the property to him. It is of course feasible, but I would not waste public money in having printed the amendments that could be made to the Acquisition of Land (Assessment of Compensation) Act, 1919 to amend that Act in this Bill. It is feasible to do it; it has been done in the Local Government (Planning and Development) Act, 1963 and in other Acts, but it would be of no effect because the Minister will be adamant in refusing to amend legislation or any Bill submitted by him to the House no matter how meritorious the amendments might be.

I want to go on record as saying— and let every member of the House know—that the Acquisition of Land (Assessment of Compensation) Act, 1919, is an inadequate instrument to do justice to people whose property is being compulsorily acquired; and because people might think that my view of the law is not correct, I have brought with me today, a leading textbook, Cripps on Compensation, which deals with the various statutes which govern the fixing of compensation for lands acquired by various local authorities and statutory undertakings. I now propose to read two short excerpts from the eighth edition of Cripps on Compensation, page 172, where he differentiates between the Acquisition of Land (Assessment of Compensation) Act, 1919, and the Land Clauses Act, 1845, to 1895.

He says: "Cases in which the Acquisition of Land Act 1919 apply are far more numerous today than those in which the procedure and principles under the Lands Clauses Acts only apply, but when applying the Acquisition of Land Act 1919 some assistance will be afforded to practitioners by a consideration of the cases decided on the various compensation sections of the Lands Clauses Act 1845.

This is the particular passage to which I would like to draw the attention of the House: "It should however be understood that there is a different principle to be applied to the two clauses of cases. When land is acquired by a statutory undertaking the basis of compensation is the value of the land to the owner at the date of the notice to treat." I underline "the value of the land to the owner". It goes on to say: "When land is taken by a Government Department or a local or public authority, the compensation is based on the amount the land might be expected to realise if sold in the open market by a willing seller." That ends the quotation.

There is a difference in principle. Where land is being acquired there are two different sets of statutes and you can apply whichever you like to any particular case. In one case you give the market value; in the other case you give the value of the land to the owner, and, as I put on the Second Reading, the hypothetical case of a person who has a shop and a small bit of land or a shed near it and who wants to extend it for the purpose of enlarging his business, the two prices can be quite different. The value of the land to the owner where he wants to extend his business and build his shop is quite different from the market value. I want to place that on record, and I move this amendment which Senator Garret FitzGerald will second in due course, formally, because I believe, as I have said before, that the Acquisition of Land (Assessment of Compensation) Act, 1919 does far less than justice to the property owner and those of us who had to operate that Act as legal practitioners or auctioneers know that people under that Act have been shamefully treated in the compensation they got. People will come along and complain to Deputies and Senators but they will then say to the aggrieved owner: "it is too bad"; and the Minister will say "it is provided by the Acquisition of Land (Assessment of Compensation) Act, 1919, which prevents me from doing what you want to do. That is the law." Now is the time to change the law. I have no doubt that the Minister will recommend to the House not to change it. With no confidence whatever do I recommend the amendment to the House though there is every justification for it.

Mr. Garret FitzGerald

I formally second the amendment.

Minister for Agriculture and Fisheries (Mr. Blaney)

I agree with the summing up of Senator O'Quigley.

Mr. Garret FitzGerald

I could not hear what the Minister said.

Mr. Blaney

I said I agreed with Senator O'Quigley's summing up, the lack of confidence in his own motion knowing it is not going to be accepted.

Mr. O'Quigley

I would like to reply to the Minister on that. The Minister was not entirely audible on this side of the House. Perhaps he was shy in confessing that I had clearly anticipated and analysed his state of mind and reaction to this most moderate and reasonable amendment. When I said I recommend the amendment to the House with no confidence I meant, as the Minister quite clearly knows, that I had no hope whatsoever that the Minister would recommend his Party in this House to accept this amendment. I had no confidence whatsoever in that happening and I had no confidence whatsoever in the Minister's ability to assess the difference between the Land Clauses Consolidation Act, 1845 or the Acquisition of Land (Assessment of Compensation) Act, 1919 and it was for that reason I anticipated that the amendment would not be accepted and that the Minister would not recommend it to his Party in the House.

Tomás Ó Maoláin

Were you not very foolish to put it down?

Mr. O'Quigley

I did so, so that there would be no doubt in the minds of any of the Senators that the Acquisition of Land Act, 1919 is an unjust Act. I did not want the House to accept merely my word for it. I went to the trouble of bringing in this tome—Cripps on Compensation—so that members of the House would know what they are enacting in this Bill. I hope at some future stage that members of the Minister's Party will in the conclaves they have from time to time, the meetings which different groups have with different Ministers, will try to urge on their Ministers to accept the more just Act, the Land Clauses Consolidation Act, 1845, rather than the Acquisition of Land Act, 1919. In doing that they will not be robbing anybody. They will be ensuring that they will not leave any former holder of land with a grievance that will aggravate him.

An Cathaoirleach

Is the amendment being pressed?

Mr. O'Quigley

Yes.

Amendment put and declared lost.

Mr. O'Quigley

I move amendment No. 2:

In page 5, line 51, before "after" to insert "or such longer period as the Minister may allow where the claimant for compensation has been ill or out of the country".

This is an amendment to section 3 of the Bill. It is an amendment which I would hope on this occasion the Minister might accept. The Minister and myself got very unusually close to one another in our views on the frailties of human nature on the Second Stage of the Bill. It is quite clear, no matter what period you lay down for the bringing of actions or any claims that there will always be somebody late. It does not matter what the time is; if it is six years people will make a claim in the seventh year or if it is two years people will make a claim in the third year. There are, however, cases where claims will be made out of time because people are under some kind of disability.

Mind you in the Statute of Limitations Act, 1957 and its predecessors, the various Statutes of Limitation before that, allowance was always made for people who make claims to establish the legal rights outside the period of limitation provided by the statutes if they were ill or mentally incapacitated or they were out of the jurisdiction or were, in the pharse used in those days, "beyond the seas." We do not have colonies or anything like that which require the use of that phrase in modern times but we do have emigration and I suggest in this case that where a person fails to bring a claim in time if the Minister is satisfied that the person concerned was mentally ill or merely physically ill and allowed the time to expire or if the person was out of the country, as could happen with people who have gone to England or emigrated elsewhere—maybe this does not happen often but it could happen—the Minister should be able to do something about it.

We should give power to the Minister to say: "Yes, so-and-so was sick or out of the country and did not know this order had been made for the acquisition of this land and in the circumstances I will exercise my discretion and extend the time." That is a reasonable power to invest in any Minister and I am sure any Minister would act reasonably in the exercise of that power. We ought to give the Minister this power to meet those genuine hard luck cases. Those are not congenital late comers we are dealing with. Those are people who have genuinely been unable to make the claim in time. They have very genuine reasons for being unable to do so.

Mr. Blaney

I should dearly love to have something some time or other from Senator Quigley so I could say that this is going to be the time but this is not so with regard to this amendment. The amendment, first of all, does not appeal to me at all in the sense that I do not see where it improves the situation to a degree that would be regarded as necessarily reasonable and, secondly, even if we were to allow it or agree to it, it just would not make any sense. The wording would be meaningless if it was inserted, as is proposed here. If that were not so and any meaning could be taken of it the question of defining illness or proving it would be very difficult. With regard to "out of the country" what does that mean? How long would one have to be out of the country? How would you show the person had been out of the country or was coming back to qualify this matter which might arise for this extension?

All in all, the amendment is meaningless.If there was any meaning in it, no matter how you approached it it could not be accepted or I could not recommend to the House that they should accept it. First, last and all the time, as I said on Committee Stage, the position in the Bill seems on all heads to be reasonable and adequate and, indeed, if anything a rather more lengthy period than is, in fact, dictated by the circumstances which really can arise in the operation of this particular part of the Bill. Therefore, I cannot in any way see how this amendment could be accepted and I could not recommend its acceptance to the House.

Mr. O'Quigley

There is a common fallacy that the office of Parliamentary draftsman is one to which Members of Parliament have access and that the draftsman is someone who is available to assist Members of Parliament in drafting amendments. Unfortunately, the Parliamentary draftsman is a civil servant whose services are available only to Ministers of State. If the Minister was well disposed to the principle of my amendment, and I rather think the House would agree with the principle of the amendment, he might do what I could not do: he could have said to the Parliamentary draftsman: "Would you put that into parliamentary language". The Minister complains, and I was almost beginning to pity him in his complaint, that he could not accept it on the grounds of drafting, but that complaint is completely false and insincere.

With regard to his other difficulties, I have no quarrel with the Minister on this, but I would refer to his difficulty about the definition of illness. If the Minister will look at Chapter II of Part III of the Statute of Limitations of 1957 he will find that in that case the Act refers to persons of unsound mind. In that Act there is no way of determining when a person is of unsound mind but the discretion of the court and the common sense of the law itself has enabled everybody to determine whether a person is of unsound mind or not.

Then there is the difficulty about a person being out of the country. If the Minister was in earnest about this difficulty he could well have put in a provision which would make the matter quite clear but no doubt he was not prepared to accept the amendment at all. If he does not accept it there will be people who will come to Deputies and Senators, people who have been away in England for over a year, and they will say that as matters stand they are not entitled to compensation and ask what can be done about it. At that stage, under the Bill, a letter to the Minister will be of no avail. All I want to do is to give to the Minister discretionary power to extend the time; that is an eminently reasonable suggestion. I had hoped that the Minister would accept the amendment but I have been disappointed in this case.

Amendment put and declared lost.

Mr. O'Quigley

I move amendment No. 3:

In page 10, line 2, before "the" to insert "the Minister after consultation with".

This particular amendment is a case in which we are providing for the Minister for Agriculture and Fisheries more power than he has sought under the Bill, section 8 of which provides that the Minister for Agriculture and Fisheries shall keep the accounts of the five fishery harbours in such form as may be approved of by the Minister for Finance. It is true that on the Committee Stage of the Bill the Minister did indicate that he would be prepared to keep the accounts in the normal form in which the accounts of trading and commercial companies are kept. I do not know if the Minister is aware of the amount of difficulty that is encountered by any Department when dealing with the Department of Finance. There are volumes of correspondence and, in the end, it is the officials of the Department of Finance who always prevail.

So that they may not prevail in this instance I have suggested that it is the Minister for Agriculture and Fisheries who should determine, in the first instance, the form that the accounts will take and that he will then consult with the Minister for Finance to see if that form of accounts is all right. I have suggested in the amendment that the accounts be kept in such form as the Minister for Agriculture and Fisheries, after consultation with the Minister for Finance, will decide. The Minister will be the determining authority; he will consult with the Minister for Finance but it is the Minister for Agriculture and Fisheries who will have the last word. It is to ensure that no difficulties will be raised by the Department of Finance that I have put down this amendment.

Mr. Blaney

I think that what has probably been overlooked by the proposer of this amendment is that in this case the Minister for Agriculture and Fisheries will keep the accounts of the five major harbour centres. I think it would be far from rational if we should also stipulate that the person who keeps the accounts should also be the person designated to approve of the method of their keeping. What I have already said is true, that the keeping of the accounts in any manner that will be of value to the Minister will be at his discretion regardless of the format that will be sought or approved of by the Minister for Finance. If the Minister for Finance sought a format other than that desired by the Minister for Agriculture, the Minister for Agriculture is quite free to keep the accounts in more detail and to his own satisfaction. To give this power to the Minister for Finance is the proper thing to do in this instance and it does not in any way take from the detail or commercial form which the Minister for Agriculture and Fisheries may desire and have carried out in regard to these accounts which, in fact, are to all intents and purposes kept by him in respect of any or all of these major fishery centres.

The Senator will appreciate that since the Minister for Agriculture and Fisheries will be the keeper of the accounts it is far from being a rational situation that he should be designated as the person approving of the manner in which they are kept, in other words, if given power to approve that which he himself had already done. I do not think that that would be a good precedent to establish either in relation to this particular operation or indeed to any other.

Mr. O'Quigley

It is very commendable on the part of the Minister not to require this particular authority. I do not wish to delay the House beyond saying that I do not agree with the interpretation of the Minister of subsection (1) of section 8. I would have hoped that the amendment would have obviated the kind of difficulty which the Minister possibly foresees, that is, where he would keep one set of accounts to suit his requirements and the Minister for Finance would require another set to suit his requirements.

I would have thought that it would be better that the Minister, knowing the record within the harbour centres, would prescribe the form these accounts would take. At the end of the day no matter who approves or does not approve, they will have to be audited by the Comptroller and Auditor General. That the Minister or manager of the centre will be the keeper of the accounts does not seem to carry a great deal of weight for the reason that in every Department and sub-office there is a particular officer who is the accounting officer, but that does not mean that he can decide the form the accounts take. These are decided by the Minister for Finance or the Comptroller and Auditor General, or both. I think the amendment is a better form of drafting for this particular amendment so that there will be no doubt when the format of the accounts comes to be decided, but the Minister will decide the format and then he will consult with the Minister for Finance to get his views on them.

Amendment put and declared lost.

Mr. O'Quigley

I move amendment No. 4:

In page 10, line 43, before "made" to insert "and bye-law" and to delete "section 2 of".

This is an amendment which I think the House should have no difficulty in accepting. What I am trying to achieve is to bring in the standard form of procedure where regulations or orders made by the Minister shall be laid before each House of the Oireachtas. The section, as drafted, merely contemplates that the order made by the Minister under section 2 will be laid before the Houses of the Oireachtas. There are other orders which the Minister will make under the Bill and there are various bye-laws which he will make under section 4 fixing rates, tolls and other charges for the use of facilities.

I think it is very desirable, if not necessary, that bye-laws or regulations or orders imposing tolls and charges, and so on, should be laid before each House of the Oireachtas. If they are not, there is no way in which parties aggrieved after an order has been made can have it rectified except by the long and tortuous procedure of putting down a Parliamentary question or motion. A Parliamentary question as far as this House is concerned does not exist. What I am seeking is to make it obligatory to have all bye-laws and orders laid before each House of the Oireachtas.

In that connection, I should like to draw the attention of the House to the fact that under the Road Traffic Act, 1961, bye-laws made by the Commissioner of the Garda Síochána in many cases were not laid before each House of the Oireachtas. That is now being changed under the Road Traffic Bill, 1967, so as to provide that certain bye-laws made by the Commissioner will be made in the form of regulations by the Minister for Local Government, and all of those will in future be laid before each House of the Oireachtas. In this particular case I am merely conforming to what the norm is in relation to all regulations.

Mr. Blaney

I would suggest that Senator O'Quigley is not correct in regard to the precedent which he says exists, that this sort of order and its publication are normal requirements, far from it. This type of order and these bye-laws will contain a mass of detail which would not be, and is not, normally required to be placed before the Houses of the Oireachtas. Another very significant thing about this particular matter in the Bill is that the order under section 4 will be made by the Minister or his agents acting as a harbour authority in the future which will be subsequent to his making the orders specified under section 2 which must be laid before the Houses of the Oireachtas.

What this will bring about now and in future is that where these orders and bye-laws are in question they will be made not by the Minister as a Minister but rather as a Minister acting as a harbour authority, harbour authorities that now exist not only in these five particular major centres designated under this Bill but in all other harbours.Why have these powers? Harbour authorities now have powers to make orders and bye-laws and they are not and never have been required to have them placed before the Houses of the Oireachtas. Why should the Minister merely because he is a Minister who is taking over from harbour authorities who had powers to make bye-laws and orders in the past in respect of these particular ports be required to put them before the Houses of the Oireachtas when nobody else either now, in the past or in the future, have been or will be required to do so? I would say straight away that this has not been an omission over the years but has been in keeping with the type of matter and details that had to be dealt with from time to time by harbour authorities big and small throughout the country. It was only in keeping with the normal approach to this matter of not presenting them, and, indeed, one might even say cluttering up the Houses of the Oireachtas with orders and bye-laws and minute details of day-to-day administration and, indeed, frequent changes of these orders and bye-laws, that this procedure has been in existence and continuously in existence in regard to the operation of various ports by whatever sort of harbour authority may be in existence at the time.

This is a point that has not been properly appreciated, and I feel further that it is not recognised that, in taking over from the existing harbour authorities in respect of some of these five centres, it is laid down in the Bill that any orders or bye-laws in existence at the time of the takeover will continue to be enforced as if they had been made under section 4.

Presumably, arising from that, it may be that it will be a facility to amend those orders. Therefore, we would have the rare situation of bye-laws and orders being enforced which were made by harbour authorities in the past but construed as being in operation from the takeover by the Minister for Agriculture and Fisheries, which Minister thereafter, acting as the harbour authority, may amend these orders, and the requirements of this amendment presumably would be to bring these orders and bye-laws before the Oireachtas. In other words, if they were to be changed by the Minister they would have to be brought here though the original orders never were required to be brought here.

These are not the type of things that require to be brought before the Houses of the Oireachtas and have not been in practice brought before them. Precedence is not there and the reason for this is well grounded in that such orders contain masses, in some cases, of day-to-day detail. There is a distinction between orders to be made under section 2 and under section 4. In section 2 it is the Minister acting as the Minister who appropriately brings them before the House in respect of what he proposes to take over and what he proposes to do. Once a centre has been taken over then what we are dealing with in section 4 is rather the operation of the port thereafter and the substitution of the Minister for Agriculture and Fisheries as the new harbour authority.

Mr. O'Quigley

I sympathise with the Minister in not wishing to be subjected to those constraints to which existing harbour authorities are not subjected—being obliged to lay bye-laws and orders in relation to harbour centres before each House of the Oireachtas. However, there is a distinction.In relation to existing harbour authorities, one will find that whereas these various authorities were perhaps constituted under private Acts of Parliament or under charter, they were at all times, and still are, privately owned bodies. Therefore, there is a distinction between that kind of harbour authorities and the ones we are establishing here in which public moneys are invested. Even if there was not such a distinction there is, in my view, every reason to provide that bye-laws made by any harbour authority should be subject to the overriding authority of Parliament. I can recall, in my experience as a lawyer, seeing some of the bye-laws made by the Dublin Harbour Authority, the Port and Docks Board, and people have been subjected to new landing charges, warehousing charges and so on, on the say so of the board, with no redress whatsoever for those who use the port. It was no use anybody talking to Deputies or Senators because there was nothing anybody could do about it. I know of one instance in which the change in landing charges by a particular harbour authority was so steep as to give rise to considerable opposition among shippers and shipping agents and warehousing people, but there was nothing effective anybody could do about it.

That is always the position when you have got a monopoly. The existing harbour authorities are like the Irish Turf Club who make regulations about the training of racehorses, the licensing of trainers and jockeys and the admission to enclosures. They are a private concern.We can contrast that with the position of Bord na gCon under the Greyhound Industry Act. What used to be the preserve of the Irish Coursing Club ceased to be the preserve of that club and became vested in the new body, Bord na gCon, and the regulations made by them or by the Minister in relation to them fall into a different category. Their regulations have to be laid before the Houses of the Oireachtas; those of the Turf Club do not.

All this is the consequence of bringing certain portions of private enterprise within the ambit of the public sphere. What is more important is that in this case we are using public moneys. It gets us back to the whole principle of the accountability of Ministers to Parliament in respect of public moneys. As well as that, it seems to me that where one has a bye-law whose contravention as in this Bill under subsection (6) of section 4 is an offence involving, on summary conviction, a fine not exceeding £100 or at the discretion of the court a term of imprisonment not exceeding six months or both fine and imprisonment—something analogous to the penalties to be imposed for drunken driving—when you have that kind of bye-law it ceases to be a matter of private concern for the Minister and his agent, the harbour authority. It is something that should be subject to the scrutiny of Parliament. Therefore, I am not at all convinced by anything the Minister has said. All of these bye-laws, especially that which gives rise to a fine of £100 or/and imprisonment of six months, are of such a character as to warrant their being laid before both or either House of the Oireachtas to be amended or rejected by the Oireachtas. Accordingly, the amendment should be accepted.

Amendment put and declared lost.

Bill reported without amendment, received for final consideration and passed.