The Minister defines "premises" as including lands. Can he say if "lands" includes premises?
Horse Industry Bill, 1970: Committee Stage.
Can the Minister give an indication as to when it is proposed—which day he has in mind—to bring the Bill into operation as an Act? I am not making this statement ironically but I assume by reason of the fact that the Minister wants to get the Bill through now and has pointed out the desirability of the legislation, he has in mind a time for the bringing into operation of the Bill—an early date.
I cannot give the date but, as I pointed out to the House, the desirability of having the Act in operation is plain to everybody. There will have to be consultations with the various interests, as Senators have said. I propose to consult with all interests, then nominate the chairman and set up the board as quickly as possible.
I should like to point out to the Minister that in the report of the body set up to inquire into the horse breeding industry, Recommendation No. 38 suggested the establishment of a consultative council. I find a similar recommendation in the famous Brown Book published by the Department two years previously. Therefore, there are two sources which recommended the appointment of a consultative council. Perhaps the Minister might like to elaborate as to why he has at this stage decided against having a consultative council, particularly in view of the fact that the Department's Brown Book recommended the establishment of such a body?
It is a question of arriving at the most efficient method of improving the pleasure horse and the pleasure horse trade. The establishment of a consultative council, in my view, would be unduly cumbersome and might impede rather than exploit the objectives of the Bill. For that reason the establishment of the board acting as an executive and an advisory board would be the most direct and expeditious way of dealing with it. That is the main reason why I think the consultative council would clutter the situation.
The Minister will agree that the survey team which was statutorily established and which did a wonderful job, recommended strongly this course and it is also in the Department's Brown Book. These are two authoritative sources and I would not expect either source to have made the recommendation lightly. I am not satisfied with the Minister's reply.
I would like to point out to the Senator that the recommendation for a consultative council was made by the commission for the Department itself rather than the board. The board will in effect carry out the functions and perhaps better than would a consultative council which was recommended for use by the Department rather than the board itself.
Section 6 provides that the board shall be a body corporate with perpetual succession and power to sue and be sued in the corporate name. I know that in section 14 there is power for the board to maintain and equip offices. I think I am correct in saying that there is no obligation on the board under the Bill to maintain a registered office as such and I am wondering (1) if that is necessary and (2) if it is not necessary, what is the appropriate precedent for the serving of notices on the board if that should arise? The Minister will be aware that normally the procedure is that where a registered office is maintained, notices are usually served at that registered office.
I am advised that that regulation applies only to a registered company and the board are not such.
I appreciate the validity of the reply but where a company is not a company registered under the Companies Act, would it not seem to be the position that the legislation establishing it should cover such matters as where notices should be served? The Minister is correct in what he said. If a registered office is maintained by virtue of the incorporation of the company under the Companies Act of 1963, there would, by reason of its incorporation, be automatic provision for the serving of documents at their registered office. As the Minister pointed out, the Companies Act is not applicable here. In those circumstances should not there be provision in the legislation for some place where the board can be served?
There is no essential difference between this provision and the similar provisions for other boards under the aegis of my Department. There will be no difficulty in ascertaining where are the headquarters of the board and thereby in being able to serve any notices that it may be necessary to serve on them at that place.
We had this situation arising quite recently in legislation going through the House. I have forgotten the precise title of it. I think it was the Health Corporate Status Bill. To the best of my recollection, the Minister for Health either accepted an amendment, or accepted the arguments in principle, and introduced an amendment himself covering the point that I am making now with regard to the maintaining of an office and the service of documents.
I would imagine that when the board is established there will be an office.
Perhaps the Minister would look into it between now and Report Stage?
If it is possible.
Is it not a fact that the Minister for Agriculture and Fisheries at the time, Deputy Haughey, said that a consultative council would be in operation?
I thought I dealt with that in reply to a previous question asked by Deputy McDonald.
I did not hear the Minister.
Perhaps the Senator was not listening carefully.
I am not satisfied, and I want to quote paragraph 44. It states:
The Team envisage that the Irish Horse Board would have a number of sub-committees dealing with various aspects of the board's work, e.g., breeding, training, rules, fixtures, publicity and marketing. Membership of these sub-committees would not be confined to the board members but would be open to all those with an interest in the industry or with expertise in a particular field. The Team consider it desirable that members of these sub-committees should be unpaid voluntary workers.
The point is that such a council would be representative of all interested sections. That would be an excellent way of recruiting members of the board. If we are to have full co-operation we must have everybody in the industry feeling that they have some direct link with and some part to play in the work of the board. There are people who think there are rings in the present Racing Board and I should hate to hear of the same thing being thought of this board. Could the Minister look at this between now and Report Stage?
I appreciate the concern of Senator McDonald and I should like to acknowledge the genuineness of his concern but I feel that under section 25 of this Bill adequate provision is made in this regard where the board is empowered to set up sub-committees consisting of people with possibly a specialised knowledge of one particular aspect of the horse industry. It may be felt that the availing of specialised skill may be necessary and it can be called in under section 25. I would draw the Senator's attention to the recommendation in the report though it is somewhat vaguely worded in that it says it might be a good idea; it did not positively state that it ought to be done. It is my feeling that the provisions made under section 25 would adequately deal with this. It is of course the function of the board, as the House knows, to ensure that the horse industry as a whole progresses as rapidly and as favourably as possible and it is their business to procure this result by the best means possible. This is one of the means they have at their disposal. They can if they want to set up sub-committees to deal with special problems.
Would the Minister not consider that the setting up of a number of sub-committees would add to rather than take away from the complexity of the set-up? If the House would read down the list of the various organisations which this survey team recommended should be represented on this consultative council it would be seen that they include the Bloodstock Breeders, the Horse Owners' Association, Bord Fáilte, Connemara Pony Breeders' Society, Córas Trachtála, the Department of Agriculture, the Department of Defence, An Foras Talúntais and so on. It is a very admirable and comprehensive list.
It is very long but for that reason it is not admirable. The equipment provided by this Bill is a better means by which the board and the Minister can avail of the best advice in the matter of horse breeding and so on than the large and long-ranging suggestion of the Senator. He will probably agree with me when I say that if there is a large consultative council, representative of pretty well everybody in the business they will be so numerous they will be practically ineffective. For the purposes of the Horse Bill expedition will be quite important and it will be equally important for Bord na gCapall to act quickly and to establish quickly such sub-committees as they may feel most competent to deal with a particular matter they want dealt with. I feel the consultative council is a cumbersome method that we can readily dispense with. It could give rise to unnecessary delays in the expansion of the board's business.
Did I hear the Minister say that Senator O'Brien was suggesting that all these people should be represented on the board? He was reading from the recommendations of the survey team.
I possibly misunderstood the Senator. I apologise.
At (1) (e) of this section it says that one of the functions of the board is:
To undertake such other functions as may be transferred or assigned to the board under section 33 of the Act.
Section 33 gives the Minister power by order to assign to the board or transfer to the board any powers conferred on the Minister under Part III of the Bill. I should like to find out if it is intended to transfer to the board the functions conferred by Part III on the Minister in sections 26 and 30. Section 26 is the one which authorises the Minister to make regulations with regard to certain matters and section 30 is the one which authorises officers to make inspection of premises and so on. I wonder if under section 7 the Minister contemplates transferring powers of that nature, even the power of making regulations to the board?
These are tasks that could conceivably and probably would fall within the ambit of the board. The board might very well be the most appropriate authority to deal with questions of that kind.
If the functions under section 26, that is, the power to make regulations, were to be transferred to the board it would seem to be somewhat in conflict with the obvious intention of section 5 which is the laying of the regulations before the House. That would seem to me to presuppose that the regulations will be made by the Minister.
May I draw the attention of the Senator to section 26, to the words "as the Minister may consider appropriate"? The Minister's function in that regard and the Minister's responsibility appears to me to be ultimate there. He may, if he so thinks fit, assign certain obligations and duties to the board but the responsibility is finally his.
If a regulation is made by the board and not by the Minister it is hardly the Minister's regulation under section 5.
The essential difference is that under section 5 any order made by the board would have to be laid before the Houses.
In regard to section 7 (a) (1) do I take it that "associated activities" include in certain circumstances advice in regard to the importation of horses?
The business of the board is to develop the native breed of horse, the pleasure horse as it is called.
Would the importation of horses not be desirable in certain circumstances?
For breeding purposes.
This would be a matter for the board to consider if it were advisable.
The importation of a stallion.
Would that be accepted as an "associated activity"?
Provided it is consistent with the overall intentions of the board.
Would it not have been wise to have included the word "import" in the section to avoid doubt or ambiguity?
It is covered by the phrase "associated activity".
I do not accept that. I accept the Minister's word but not his interpretation. I agree with Senator O'Brien that in certain circumstances the importation of horses might be desirable, say, a stallion or a mare. It should be written in.
I do not think it is necessary.
Senators are entitled to speak on the section but the debate cannot be carried on by way of question and answer.
We are in committee.
Yes. Senators can speak on the section but they cannot continue to question the Minister.
Senator O'Brien raised the question of imports. It is an important point which is not covered.
We must assume that it is necessary and desirable.
I should like to ask the Minister to bear in mind the importation of Shetland ponies over the past couple of years. This is not covered in the Bill and something should be done about it. They are a useless import and we have sufficient horses of our own without importing these pets which are no addition to the industry. Will the Minister remember that?
I would be afraid that the omission of the word "import" might at some future date, maybe ten, 20 or even 40 years hence, lead to a clash between the board and the then Minister where the board felt it necessary to import a certain category of horse and the Minister could prohibit its importation.
This is the sovereignty of the people. In that case the board acts in an advisory capacity and the Minister, whoever he may be, would have the obligation to see that the right thing was done. If it were written in it might be unnecessarily restrictive.
The Minister may give guarantees but he will not be——
There is no amendment on the section.
The Chair will appreciate that in order to lay the ground for a Report Stage amendment it is necessary to discuss the matter on Committee?
The point has been made and I think we can pass on.
In regard to section 7 (1) (d) can the Minister say if expenses in regard to teams celebrating victories can be paid? In the past this has proved to be a burden on some of our young officers who are not the best paid in the business.
They can under another section.
On Second Stage the question was raised if 11 members were sufficient for this board as the industry is so widely scattered over the country and there are completely different interests involved. For the board to be a success it will be imperative that there should be wide representation. Does the Minister think 11 sufficient in view of the fact that he has abandoned the idea of a consultative council?
I do. In the interests of efficiency and expedition in the carrying out of the board's work I think a number in excess of 11 would be too great. If one were to enlarge the board to accommodate all the multitudinous interests involved the board would be so unwieldy as to be unmanageable. What we are aiming at is a hard-hitting task force which will organise and direct the breeding of the Irish pleasure horse. After great cogitation and after consulting with the expert and dedicated people in the Department of Agriculture, who have dealt with this over a number of years, I think the figure proposed is the best one.
The proposal is to appoint the members for a five-year period. I think five years is a bit too long.
The business of horse breeding is, as I mentioned earlier, a long-term business. The board, having been established and having, as it were, knit together, should be left together as a team for at least that period. It is the responsibility of the Minister to put the team together and it is his responsibility likewise to ensure that the best possible people are appointed to the board. Having done that, I do not think five years an excessive period remembering that horse breeding is a long-term business. It would be a shame to disperse the team, change it, or alter it before any concrete work was done.
I agree with the Minister on that. In subsection (9) we say a member of the board or of any committee established by the board shall be paid such allowances or expenses as the Minister considers reasonable. That would militate, I think, against good young men serving on the board because they could not, perhaps, afford the time. I suggest these people should be paid some kind of salary. I know excellent people who could not afford the time to serve on the board just for expenses.
I confess I gave some considerable thought to that idea. The matter was also discussed at some length in the Dáil and, in the end, it was agreed to accept the recommendation of the survey team that no emolument as such should be paid to the members of the board. I hope the people serving on this board will represent—let us be honest about it—the poor producer, the producer who is quite likely to be a man of very modest means. It might be a big sacrifice for such a man to serve on the board, but I think we can get him. We are fortunate in having a body on whom we can draw for service on the board without remuneration.
But not, I hope, to the detriment of the board.
I do not think we need worry really about this. This was discussed at some length in the Dáil and it was agreed that the recommendation of the survey team should be accepted, namely, that this should be a non-paid board. As the Senator knows, there are people who are keenly interested in the development of horses and they would be glad to serve on a board of this kind. It is lucky for us there are such people.
There are three small points in relation to subsections (3), (8) and (9). On subsection (3) I hope to get an assurance and, on subsections (8) and (9), some interpretation. Subsection (3) provides:
The period of office of a member of the Board shall be such period, not exceeding five years, as the Minister may determine when appointing him.
Is it the intention of the Minister that the same period should apply all round? Or is it the intention that some may be appointed for five years, some for two and others for, perhaps, three years?
Subsection (8) provides:
A member of the Board shall hold office on such terms as the Minister may determine from time to time.
Am I correct in assuming that the intention there is that the same terms will apply to all the members?
The same terms will apply to all.
The last question arises in relation to a point made by Senator Farrelly. I was wondering if the phrase used in subsection (9) "such allowances for expenses" can be interpreted as extending further than, say travelling expenses. Could it be interpreted as allowing payment by way of compensation for losses which might be incurred by the members of the board?
It is not the intention that it should be a device in substitution for a payment.
No, that is not the point. The phrase used is "allowances for expenses". I want to be clear as to whether that relates merely to actual expenses incurred by a member travelling or, possibly boarding, if he had to do that, or if it is intended to cover the case in which a member of the board might suffer pecuniary loss by reason of having to go to a board meeting, for example?
My advice is that that is not covered.
On the first two subsections I mentioned the Minister's intention is that both the term of office and the terms of appointment will be the same for all members.
Would the Minister like to instance a situation in which he might be forced to use the powers conferred under subsection (11)?
I do not like to insist. It is a question of using imagination.
Ordinary marching orders would suffice.
I do not think so. Not in modern Ireland.
The Minister must have some safeguards in regard to the members of the board. If someone was acting surreptitiously in his capacity as a member of the board the Minister would need to have some power.
The point was raised by Senator McDonald on Second Reading as to why the Minister regards it as necessary to appoint the chairman on each occasion. Would it not be possible to have a situation whereby the first chairman would be appointed by the Minister and each chairman appointed thereafter by the board? The members of the board will be working with the chairman and they will know on performance who is the most suitable person.
I do not wish to discuss this at length but the point is that the Minister will be responsible for the main expenses of the board and it will be necessary to appoint a chairman who will carry out his duties in a diligent manner. If the Minister appoints the chairman he will have overall responsibility and if he appoints someone who does not carry out his duties in a proper manner the responsibility will fall on the Minister. As the State will provide a considerable amount of money to meet the expenses, the Minister should have some say in the matter.
The Minister for Health took a different view, but I am not sure if he is responsible for paying the members.
I do not think Senator Honan gave an adequate and satisfactory answer to the point raised by Senator O'Higgins. It is valid enough to have the first chairman nominated by the Minister and we accept this, but thereafter the members should appoint their chairman.
Who is going to pay the expenses of the board? The responsibility for the running of the board is on the Minister.
No more than on local authorities in other cases.
There is a precedent in this in that in the case of other boards operating under the aegis of the Department of Agriculture the chairman is nominated by the Minister, partly for the reasons mentioned by Senator Honan. It is a system that has proved satisfactory.
To the Government.
It has been satisfactory for everybody concerned. The Government will score most in this on performance. This was discussed at length in the Dáil also. The Government need not consider they have succeeded in this matter if the board's performance is not at an optimum rate. If any Minister were so foolish as to appoint a chairman for any reason other than that the person was the best man for the job it would be a bad job politically. The right of the Minister to appoint the chairman has been proved time and again to have worked satisfactorily on other boards under the aegis of the Department of Agriculture and we should abide by this practice in the case of Bord na gCapall.
When a member steps out of line he will not be reappointed?
I do not agree. These bogies do not frighten me. Most people who are given the responsibility of chairman will act in a responsible manner.
One matter on which I would fault the Department of Agriculture is that if a strong personality takes a different view from that adopted by the Department that person gets his walking papers very quickly. Perhaps this is not so, but from reading comments in the papers one would be pardoned for thinking this was the case.
Can the Senator cite an example?
The case of the institute two or three years ago. The Minister nominated a chairman rather quickly after the NFA parades. I do not wish to discuss this matter but I hope in this instance similar lines will not be followed.
While I appreciate the good faith of the Senator, I consider the example he cited was an unfortunate one and not a good example of the point he meant to illustrate. I do not think we should discuss the matter of the institute now.
On this section I think I am right in saying there is no penalty provided in the Bill for a member who does not act in accordance with what is required under this section. Section 11 states:
A member of the board who has—
(a) any interest in any company with which the Board proposes to make any contract, or
(b) any interest in any contract which the Board proposes to make, shall disclose to the Board the fact of the interest and the nature thereof and shall take no part in any deliberation or decision of the Board relating to the contract, and the disclosure shall be recorded in the minutes of the Board.
I am not suggesting that the type of persons the Minister will propose to appoint to this board will act in a way mala fide in relation to a contract but it appears to me to be rather beating the air solemnly to provide in legislation that people will do certain things—in this case to declare an interest if they have one—without at the same time providing some form of sanction should the people be in breach of what is required. I appreciate that under section 8 the Minister has the remedy of removing a member from office and, no doubt, if he were to find out a member had an interest which he had not declared he would remove him. That is not enough to make section 11 solid or to give it teeth. If a member of the board has an interest in a company with which the board proposes to make a contract, or has an interest in a contract the board proposes to make, if he does not declare that interest and consequently makes a substantial profit out of the transaction, there is nothing in this Bill to safeguard the board or the public interest by requiring or authorising the Minister or the board to obtain a recoupment of any profit made in that way. Under the terms of section 11 the intention is that no such undisclosed profit should be made. It is abundantly clear that the whole purpose of section 11 is to provide for that. Obviously, if a member of a board declares an interest it may be that the board, and this is implicit in the section, will decide that the nature of the interest or even the nature of the contract is not of sufficient consequences and is not going to result in gain or profit to the member. The board may very well come to the decision that all they need to do is to record the fact that the declaration of interest has been made and take no further step in the matter. The section does require that once the declaration of interest has been made the member will not play any further part in the deliberations. I am concerned here about the case where a member of the board has an interest, refuses to declare it and by reason of not declaring it he obtains considerable gain or profit. What is going to be done about that?
When we were dealing with a different Bill last night I understood a contract was not a contract until somebody had completed it.
There are different ways of completing it.
If the proposal is that it is incumbent on a person to say that he has an interest before the contract is concluded, there would be no pecuniary interest.
There is no complaint in that case. I am concerned with the person who does not declare an interest and deliberately conceals the fact that he has an interest. As a member of the board he knows a contract is being entered into with the company with which he has an interest and because he has not declared his interest in contravention of this section he makes a profit on the transaction.
I misunderstood the Senator.
I can see Senator O'Higgins's point. I sympathise with the Minister because he is going to find it hard to get 11 members who are either not interested in horse breeding or horse dealers. The difficulty is that some of these people may be in a position to make a profit from a contract entered into with some firm. The Minister should safeguard himself by saying that if there is a breach of contract the person concerned will be fined.
The action that would be taken is that the board would have to remove that particular member from office. If such a contract were being contemplated by the board and a member of the board did not declare his interest in the company concerned that fact would probably be known by other members of the board. As the board is voluntary and unpaid it would be rather contradictory for the Minister to say that he wanted to avail of their services but if they did anything wrong they would be penalised or fined. There is an element of human risk here but I think it is better to take that risk rather than threaten the person whose services are being given for nothing.
Is it not generally accepted that it is bad law to enact a law which is not going to be enforceable? I appreciate the argument the Minister has made. The point is that other members of the board may not know of a particular member's interest in a particular company. I recognise fully the Minister's reluctance to have a situation where he is seeking voluntary assistance but at the same time letting the people giving this voluntary assistance know that if they put a foot wrong he will penalise them. I do not think it would be unreasonable to make provision in case non-disclosure results in a member making a profit. Provision should be made in the Bill that such profit would be recoverable from the member, or something of that sort leaving out entirely any question of penalties by way of fine or imprisonment. If the Minister is reluctant to put teeth into the section it would be better to drop the section completely or change the wording.
The acid test in this case is that this particular procedure has been adopted in many other boards of a similar kind and it has been found to be satisfactory. I accept Deputy O'Higgins's reservations about the matter as a skilled lawyer but I maintain my own objection to his suggestion that it is invidious to the point of unacceptability to say to people whose specialist services are being given voluntarily, "Watch your step". I think the section should stand as it is.
I take it the Minister will keep an open mind on this and if when this becomes law the situation which I have tried to envisage arises an amendment will be made to the section.
If the Bill were plainly unsatisfactory from that or any other point of view obviously a change would have to be made.
I do not propose to press the point any further.
I move amendment No. 1:
In subsection (7), lines 5 and 6, to delete "unless the Minister otherwise directs,"
I have put down this amendment because in all committees and organisations a quorum is either a quorum or it is not. I cannot visualise in what circumstances the Minister would find himself making an order or giving a direction that the quorum would be more or less than five. The only situation that I can think of that might arise is if there was a walk-out and eight out of the eleven members of the board walked out leaving only three. I am sure the Minister has good reason for this subsection but I do not know of any other case in which a Minister has sought powers to give a direction such as this.
I accepted an amendment on this particular subsection in the Dáil. The Bill originally suggested that the quorum be three. Obviously, there must be a quorum in any group. It is readily conceivable in certain circumstances where business must be transacted with great expediency in order to purchase a valuable horse and due to bad weather conditions or in the case of an epidemic it may be impossible for certain members of the board to travel in order to make a decision. With some reluctance I accepted an amendment from the Dáil that the quorum be five unless otherwise stated by the Minister. The Minister will have to have valid reasons for changing the number of the quorum.
The Minister realises all sorts of difficulties may arise if this particular subsection is left as it stands? Senator McDonald is trying to obtain a degree of certainty in relation to the meetings of the board by providing a definite fixed number for the quorum. This is one way of approaching it and certainly to my mind it would be preferable rather than leaving the subsection in the uncertain state in which it stands. If the Minister is not prepared to go along with Senator McDonald I would ask him to consider providing by way of amendment himself that in any event the quorum should not be less than a certain number. It is not the Minister's intention or Senator McDonald's intention that counts; it is what is written into the subsection that counts. The Minister is proposing that the subsection should provide that a quorum for a meeting of the board shall, unless the Minister otherwise directs, be five. That means the quorum need not be five, four, three or two. If the Minister will not go the whole way with Senator McDonald's amendment he should add to the subsection by saying the quorum for a meeting of the board shall, unless the Minister otherwise directs, be five and shall not in any event be less than three, which is the Minister's figure.
The second point about Ministerial direction was covered by the Minister in his reply to Senator McDonald. As I understand the Minister's argument this is designed to meet an emergency situation where a quick decision has to be made and it might not be possible to get five members together. The Minister did seem tacitly to accept Senator McDonald's argument that the Minister's direction may be given in a casual way over the telephone. I do not think that is desirable. If the Minister is going to give a direction which will have the effect of reducing the quorum it should not be given in any casual off-the-cuff way. In this subsection the Minister should at least provide that a direction be given by him in writing.
I am surprised at the Minister's attitude to the original section and his attitude to this amendment. As I understand it a quorum is usually one-quarter of the total number. The Minister has said that the quorum shall be five unless he directs otherwise. I do not think there is any precedent for the idea that the Minister should direct what a quorum under a particular Act of Parliament should be. It is both wrong and regrettable that in a relatively unimportant section of this Bill a precedent should be set for allowing the Minister to alter the figure involved in the quorum for any board set up by legislation. If this section is passed it will set a precedent.
There are many cases of precedents. I see no good reason for changing this subsection.
The function of the board is to advise the Minister. It strikes me that the only reason why the Minister wants this peculiar subsection is that we have had a record of semi-militant farming organisations causing a certain amount of trouble. It is regrettable that the Minister should have to create a precedent.
I am surprised that either House of the Oireachtas has expressed doubts as to the Minister's intention in this regard. I am quite sure the Minister for Agriculture will not try to vary the quorum of the board to propagate his own ideas. Senator McDonald however has made a good point. I am sure the Minister whose hands are so clean in this regard would never think of doing a thing like that.
May I interrupt for a moment? I am informed that the staff are physically unable to continue because of the long and arduous day. We shall therefore have to suspend the sitting. I move that we suspend the sitting of this Committee Stage until 5 p.m. today.
I sympathise with the staff and assure them that it was not my wish. I think they have been treated disgracefully.
There will be no discussion on this.