I just want to ask the Minister this. Section 1 includes firewood. What type of firewood does the Minister envisage? He does not mean twins I would pick up in my garden to start a fire?
Fuels (Control of Supplies) Bill, 1971: Committee Stage.
Question proposed: "That section 1 stand part of the Bill."
There is still some commercial production.
I did not put down an amendment but I should like to refer at this point to the definition of "direction" in this section so that I will be able to put down an amendment on Report Stage. Despite what the Minister said on Second Reading, I think it wholly wrong that anything that could give rise to an offence could depend on an oral direction given by the Minister or an authorised officer of the Minister. The Minister may be able to tell me some such instances. If I may say here it seems to be ministerial practice to justify—I do not mean the present Minister, but Ministers generally— the retention of sections in Bills because they have appeared in other Bills. This is a quite invalid mental process. Either the section in question is a good one or it is not. The fact that the section is in ten other Bills only means that ten other Bills should be amended, if it is a bad section. In relation to this, I should like the Minister—I am not going to ask him to talk about it at this point of time, but between now and Report Stage— to give consideration to the real necessity of having an oral direction under this Bill, an oral direction which gives rise to, or could give rise to, a criminal offence. I know it would be more convenient for the Minister and for those in his Department to administer, in the event of this Bill becoming one which would be operable, to be able to rely on an oral direction; but, administratively, anything which has not to be confirmed in writing is bad. It is very much worse if the matter involved is likely to give rise to a charge in the courts where you are going to depend upon a civil servant's word as to whether he gave an oral direction. It is very bad for the Civil Service reputation to have their word questioned in court in the most desperate way that accused persons must, necessarily, question them if they are trying to protect themselves against offences. I am not going to press the Minister to comment on this at this point of time. I am merely referring to it so that I may be able, perhaps, to debate an amendment that I intend to put down on this, with consequential amendments, throughout the Bill. I hope that this is a sufficient reference on Committee Stage to enable me to put down amendments that are consequential, without having to get up every time there is a reference to a direction in some section of this Bill.
An Leas-Chathaoirleach
I take it that the Senator by his latter remarks, rather than criticising the Chair, is acknowledging the fact that he himself is learning?
I should like to make one or two remarks on the comments of Senator FitzGerald. I want to emphasise that this Bill is purely a precautionary measure. We hope we will never have to invoke it. I say that just to put the matter into perspective. We hope by voluntary measures, which we are already pursuing, to enable sufficient stocks to be arranged in storage tanks owned by oil companies, for instance. We are always hoping, of course, that what we fear will not arise. This is a precautionary measure we would like to see on the Statute Book to enable the Government to act swiftly in an emergency situation. It is in that context that the word "orally" should be read. It should be read in the context where a phone call may stop an oil tanker from leaving a port, or not. I am just quoting that as an illustration. A phone call may ensure that a coal boat arrives, or that it does not arrive. It is about that type of situation I am talking and I would agree that in the case of normal permanent legislation that would affect the people day in, day out, month in, month out, year in, year out, that the principles enshrined in what the Senator has said are correct and that an oral direction would be highly undesirable in that type of normal permanent legislation. The Seanad should look at this matter realistically. The word "orally" is in there as part of this emergency legislation which we, as the Government, are conscientiously introducing as a precautionary measure in the event of a serious fuel shortage where we may have to take immediate and drastic action to corner what fuels we can get hold of as quickly as possible so as to conserve a fuel situation for our benefit through any period of crisis which may arise. It should be read in that context and only in that context.
I do not care what context the Minister reads in it. This may be a precautionary measure and the Minister expresses the hope that it may never be necessary to invoke it, but the point made by Senator Alexis FitzGerald still remains good. The mere fact that this is a precautionary measure does not answer the point at all. Either it is right in emergency conditions, to give Ministers the power to give oral directions and to allow those oral directions to have the force of law and amend existing legislation, as is provided for in this Bill, or it is not right. To my mind it is not right that any Minister should have the power to give a direction which has the force of law and which is capable of amending existing law merely by word of mouth from the Minister. No hardship would be imposed if the Minister was required to give his directions in writing. Most of us know how to read and write these days and the Minister is as good a pensman as any of us. All we would ask him to do is to take a pen in his hand and write out his direction. This would preserve some semblance of order in legislation of this sort. The Minister should go further and, in addition to requiring orders to be published in Iris Oifigiúil as soon as possible after they are made, he should require also that directions be in writing and be published. If the Minister would accept the need for written directions I would be prepared, in advance, to say “All right, if you give us that we will not even ask you to publish them if you do not want to.”
I presume Senator O'Higgins means that, subsequent to giving an oral order, this should be reduced to writing and that that should then be recorded.
That was not what I meant but even that would be better.
If that was what the Senator intended I would agree, but I appreciate fully the necessity of giving a direction orally in certain limited circumstances. To completely eliminate the power to do that would, to a certain extent, lessen the force and usefulness of this Bill. I suggest to the Minister that, subsequent to giving an oral direction, that that should be reduced to writing and should be recorded in Iris Oifigiúil or whatever is appropriate in the circumstances; and that this should be done, if possible, within a certain number of days, say, seven days.
I support Senator Eoin Ryan on that. As I understand the Minister, it is a question of timing. An oral communication can be carried out in two or three minutes if the telephone system is working. Postal communications can be, in my experience in recent times, anything from two to five days. This is possibly what is worrying Senator O'Higgins. I would agree with Senator Ryan that the Minister should, perhaps, follow up an oral direction with an instruction in writing. It is important, if there is this sort of emergency which we discussed when this Bill was introduced, that the Minister should have the power to issue an immediate order or instruction in order to preserve fuel supplies.
I think Senator Ryan's suggestion was very helpful indeed. The implications of what he is suggesting would be that this would be an essential preliminary for example, to a prosecution: that there should have been a recording in writing made authoritatively within a certain period of time after the direction. I remain unconvinced, in modern circumstances, that an oral direction is necessary to deal with any situation. There are a number of State representatives around the country who can be authorised by the Minister to speak on his behalf, to write on his behalf and to deliver a communication on his behalf. Subject to correction, I think the signature on a telegram is in fact written. I think I am correct in that under the interpretation of a couple of the major Acts. A telex communication, which would probably be used by the Department in dealing with large operators, would also be in writing. It might be desirable to extend the definition of what is written. As a compromise I would be prepared to accept what Senator Eoin Ryan has suggested, but I should prefer if the oral direction system was not operated at all. You will be transmitting an oral communication to whom, for example?
To what person, at what level in the company? Will the manager or the directors be responsible and guilty of offences? A body corporate can be prosecuted. The telephonist may be the person who receives the oral direction.
The office boy may get it.
If it is written the office have to make their arrangements to deal with such communications and it is they who must take all responsibility if they do not make such arrangements. An oral direction may come through any sort of person and may, if not complied with, be rendering people liable for offences. I agree that Senator Ryan's suggestion here does provide a defence for people if the direction has to be confirmed in writing within a particular period of time. Apart from defences against criminal prosecutions, there is the whole question of the loss that may be suffered by a body placing an order, or acting in good faith unaware of the advice the Minister is getting and the decisions he has got to make.
Would it not meet the situation in a state of emergency if a direction is made by the Minister that fuel cannot be exported from any port, Kenmare or wherever it may be? He has not had time to communicate this order. Once the direction is made, it can be communicated by telephone, on television or on radio and no injustice is done to anyone. I can readily visualise situations so urgent that the Minister would have to make an order immediately. He would have to communicate it within ten minutes afterwards. He would have no opportunity of communicating it in writing. He could not tell a local garda to write it out for him and deliver it despite all the agencies throughout the country. I think that might meet the objections that are raised.
This might give the Minister something to think about anyhow. I do appreciate the difficulties of a situation of the type envisaged by the Minister and which was referred to by him when he was replying to the Second Reading debate. Senators Ryan and Nash referred to the types of emergencies which might arise. I feel very strongly that Senator Alexis FitzGerald is right in his approach to this and I am wondering if it might not be possible to combine both points of view by at least inserting into the Bill some guideline as to what would constitute an emergency in which the Minister would feel justified in giving an oral direction. If the Bill is accepted in its present form, with the definition of direction as meaning oral or written, it would apply to conditions which might not be regarded as a real live emergency. The Minister would be justified, with the sanction of this Bill, in giving oral directions even where every Member of this House would feel that the situation was such that he could very well have written directions instead and that there was no immediate emergency which required instant action on his part. The Minister should write into the Bill some guideline as to what conditions would justify the giving of an oral direction. There are going to be very considerable difficulties of proof with regard to oral directions. There is no limit at all to what the Minister could do. I am not for a moment suggesting mala fides on the part of any Minister, present or future. If we take this piece of legislation, as proposed, there is no limit or restriction—good, bad or indifferent—as to what a Minister may be entitled to do by means of oral order or oral direction. I do not think that is good enough.
I appreciate that under Emergency Powers Orders a Minister is entitled to make oral orders, but there is no publication required for directions. That is one thing that we have to bear in mind. There is publication required for orders but there is no publication required for directions. If a Minister, while alone, decides to make an oral order and to sing it aloud in his bath, under this Bill it would still be an oral direction given by the Minister. If the Minister came along afterwards and said: "Well, I did give an oral direction" who is to contradict him? Where is the proof? As was pointed out on the Second Reading, the consequence of the Minister's singing aloud in his bath could be that someone finds himself guilty of a criminal offence, because the Minister says "I did give an oral direction, and that oral direction was not complied with". There is no obligation on the Minister to bring the oral direction to the notice of the person who is going to be affected by it. I feel that the Minister must think a lot more deeply on this question. I do not want to be an obstructionist in any way in dealing with this but there are very weighty reasons against accepting the Bill in its present form.
Senator O'Higgins' objections are met by subsection (2) of section 3. Directions can be given only in an order, according to that. The only power in this Bill at all in the giving of directions is under that subsection:
An order made by the Minister under this section may contain all such incidental or ancillary provisions, including the power to grant or issue such authorisations or licences and give such directions as shall appear to the Minister to be necessary or expedient for giving full effect to any provision inserted in such order...
It is by order the Minister gives directions. I can visualise the situation where a Minister must make his order and give his directions immediately and within an hours time he may have to communicate with somebody. Therefore, the Minister should have power to communicate the orders only. There is full written authority for the direction and the order has been made. The Minister will make the order incorporated in the direction. Having done so, he tells his civil servant or somebody else to telephone such-and-such a boat in Bantry Bay and tell them "I have made an order, including a direction, that they shall not remove their boat of fuel oil from Bantry Bay". It is absolutely essential to have it that way and he must be entitled to communicate it verbally. However, it is ambiguous in the wording of direction, because it appears to conflict with subsection (2) of section 3. The direction means a direction given, whether orally or in writing. Perhaps if you treat the word "given" as different from the word "made" it is all right, because the direction is already made. Once it is made it can be given either orally or in writing, but it must be made in writing and it must be made antecedent to its being given.
As the Minister has explained, since this is legislation which is only to be brought in in an emergency, I think there is justification for being able to act very quickly under this Bill. I am wondering if it might be possible to allow the word "direction" to include an oral or written direction with a proviso that, if there is an oral direction, this will be confirmed in writing as soon as possible. This will allow the exercise of the immediate oral direction and yet allow the confirmation in writing, so that the person would know and that there would be proof that the order had been given. In other words, there would not be the justifiable apprehension that a person might be guilty of a criminal offence for contravention of an oral command. If the direction made under the authority of the original order of the Minister was confirmed in writing as soon as possible afterwards, perhaps within a short period afterwards, then this would take away some of the objections to the meaning of the word "direction". I have not put down an exact amendment but I propose an amendment of that sort.
I shall not reiterate the fact that this is emergency legislation and that the purpose is to act quickly in a situation. I wish to emphasise in connection with it that there is the protection built into it that it is only after a Government order, followed by a ministerial order, that the Minister can make the direction envisaged in section 1. I shall stick to my first point that an oral direction in certain circumstances is essential. However, what has been said by Senators and, in particular by Senator Mrs. Robinson and Senator Ryan in regard to haphazard oral direction, particularly with the possibility of prosecution or some form of criminal involvement or civil proceedings, will be met by an amendment which I shall introduce on Report Stage. This will be an amendment on the lines of a confirmation in writing of any such oral direction within X hours. I think it would meet the concern of the Seanad if I wrote into that section that any oral direction must be confirmed by written direction by the Minister within X hours of the oral direction having been given. I shall draft something of that kind between now and Report Stage.
That certainly goes a distance towards meeting us. We shall have a look at the Minister's amendment on Report Stage.
Question put and agreed to.
SECTION 2.
Question proposed: "That section 2 stand part of the Bill."
I wish to repeat a suggestion I did not make on the Second Reading but which was made by Senator Russell who is not here for this debate. I know that the Minister will, in fact, be consulting with interested bodies in relation to the import of necessary fuel. It is desirable. If you look over our legislation you will find that some Departments more than others—I am not going to say which— tend to consult on a formal basis with bodies established to advise them. Departments that do this are operating our democratic procedures rather better.
If I knew anything about fuel, which I do not, other than what I might read in the newspapers or be told about by somebody in the business, I am sure I could reach the Minister if I had some brilliant idea with regard to the importation of oil from somewhere. But I would not feel that I necessarily had a duty to do so. One of the advantages of having an advisory committee selected from among the people who might be expected to know where you could get fuel, what you should do if you run short of it and what are the problems caused by running short of it people who have information about these problems because of their industrial experience, for example, or their knowledge of the planning of industry over the period of years that lie to be covered by this contingency—is that you will have people who have a sense of responsibility with regard to it. Among the things they will have to think about when they get up in the morning will be: how do I think this ought to be dealt with by the Minister? Quite frankly, I think that, not only should there be such a body established but it should be established long before any emergency. I envy the Minister's buoyant optimism—temperamental optimism—which I do not share. It must be splendid to have this. As I said on the Second Reading, the Bill is not too late, thank God, but later than it ought to be. We should be thinking well ahead about the problems of a scarcity of fuel.
Like an army ought not to be, we should be in no way surprised at suddenly discovering that, as a result of another Libyan nationalisation or Syrian blowing-up, we have an acute shortage threatening us. We should then have our plans laid. There should be a body so constituted that it is entitled to get information that the Department have or would be supplied with by the Minister on his direction, having thought about all of this before it happens and being able to advise the Minister on it. I should like to say at this point that I intend to put down an amendment on Report Stage for the establishment of such an advisory body.
The only thing I should like to say in regard to that is that, in fact, the Department of Transport and Power are very much in this custodian capacity on behalf of of the community and hold regular consultations with the oil companies, and the ESB and Bord na Móna on this particular problem.
It is not just today or yesterday but it is some months now since the first clouds on the horizon in regard to this whole fuel matter arose both on the coal and the oil side. Very regular discussions have taken place between the interests concerned not just at official level but by myself personally with them, with a view to ensuring that a strategic storage of fundamental basic fuels, oil and coal in particular, be available to us in the event of an emergency. These discussions are continuing and I am fairly confident they will work out in a satisfactory way, in fact in such a satisfactory way that I hope the use of this statute may not arise.
I might add that this is very important because there is, in regard to oil particularly, enormous costs involved in the storage of oil and if the State itself was to go into this directly to provide such storage for a strategic eventuality, it would involve quite a substantial capital investment. It is much better for us to have practical across-the-table discussions with the oil companies and the fuel organisations concerned with a view to ensuring that there is a strategic complement of basic fuels available to the community in such an emergency. We are achieving some success in these discussions already. The Bill is designed to ensure that we have as a back-up strong legislation but we are proceeding with the practical discussions which Senator FitzGerald mentioned and I do not really see the need for an advisory council here. It is a straightforward bargaining situation where we say to these people: "You are getting X concessions to come in here, we want X storage capacity from you to be permanently here in the event of any such emergency." We are negotiating on that basis at the moment and I want this legislation as something strong at my back in the event of real trouble occurring.
I do not doubt that the Minister will try to reach the right decision on this on the basis of the advice he gets from his own advisers and the information he and they get from these consultations that have no doubt proceeded. Nor was I proposing in any way a transfer of power from the Minister to a commission or to any other body which would be given functions to discharge with regard to this matter. The circumstances which would give rise to the utilisation of this legislation would be such, in my view, as to make it desirable and right that the Executive should have all the power requisite to do the job of getting what had to be got, and distributing it as it ought to be distributed. First of all, I want to repeat what I said. People who come into oil companies have their own interests to look after and so on; they come in probably separately from the coal merchants. There is a degree of self-interest here which may even be conflicting.
It seems to me to be desirable that people informed on the different levels the Minister mentioned, and on other levels he did not mention, should have a duty of advising the Minister. I cannot see that the additional advice he would get on a formal basis could in any way be harmful to him or would do anything more than make the people most concerned with this more cooperative with him in the implementation of the measure. He did not mention certain people who are affected very much by this. He did not mention people in industry and in farming. It may be that that was a verbal omission. But I should like to think that there was a little bit more than this in it because, let us face it, if there is a real shortage of fuel oil here there is going to be a selection process necessary. Who in industry has a formal duty of advising the Minister on this? It is not sufficient to tell me that the Minister for Industry and Commerce is there to assist him, with respect to the Minister for Industry and Commerce, because I find the Minister for Transport and Power's advisers take a different view on what should be in a Bill, with regard to an order made under the Bill, to the view taken by the advisers to the Minister we had here before the Minister arrived.
The words I proposed to be inserted as an amendment to the earlier Bill appear in this Bill and were rejected by the Minister's advisers from the other Bill. I am not satisfied that the arrangements from the departmental viewpoint, are adequate on this. We should have people advising the Minister who know what the plan is for industry over the next few years, who know what will be the effect of denying a particular industry fuel at one stage and, likewise, in agriculture. I would ask the Minister to consider this when he sees the amendment I am going to put down on this and to ask himself if it can possibly do any harm.
I will consider it certainly. It would be more opposite to normal legislation than to the type of legislation that in my view requires immediate Executive action. Committees in such a situation would be redundant.
Notice taken that twelve Members were not present; House counted and twelve Members being present;
Question put and agreed to.
SECTION 3.
I move amendment No. 1:
To delete subsection (3), lines 21 to 25.
I feel fairly strongly about this matter, withwithstanding the fact that I know we are dealing with legislation which it is intended to invoke only in case of an emergency. I also put down the amendment because I should like to hear the Minister's views on this question and the views of other Members of the House.
Subsection (3) of section 3 specifically provides that a ministerial order or a direction given by the Minister, on foot of a ministerial order which he has made, will have not merely the force of law but an overriding force in that it can override existing law in any Act of Parliament other than this Act. Subsection (3) reads:
Every order under this Act and every authorisation and direction shall have the force of law and shall have effect notwithstanding anything inconsistent with the order, authorisation or direction contained in any Act other than this Act or in any instrument having effect by virtue of any Act other than this Act.
We have already some discussion on the fact that it is open to the Minister, by the definition section of this Bill, to give oral directions. We then have the situation arising, by virtue of this particular subsection, that an oral direction given by the Minister will have not merely the force of law but will be sufficiently potent to override existing written legislation. The Minister may argue that I may be over-painting the picture; that what is involved here is that if there is anything inconsistent with existing legislation the order or direction made under this measure will prevail. That is true but it really amounts to the same thing: it is sufficiently potent to override existing legislation. That is not good. As a lawyer, looking at this from a defence point of view rather than from a prosecution point of view, I can imagine a number of situations likely to arise if this measure were ever invoked. A person might do something in the knowledge that what he is doing has the sanction of some existing legislation but he is confronted by the fact that here under section 3 (3), it is said to him that that is all well and good, that the Act, whatever may be in question, does say that in black and white, but unfortunately the Minister gave a verbal direction the effect of which is inconsistent with what is in the Act the person was relying on and, because it is inconsistent with the Act he was relying on, the verbal direction given by the Minister must be regarded as what counts: it overrides what is written into the legislation. I do not like this. If we can do without this subsection completely, as I am suggesting by means of my amendment, we ought to do without it. If the Minister feels that some sort of power to buttress the effect of any orders or directions he may give is required, I suggest he should look at this matter again, between now and Report Stage, to see if there is not some other way by which the necessary support for his orders or directions might be given rather than by putting them in the position of completely overriding, in the event of an inconsistency, formal written legislation.
I should like the Minister to look at this subsection again not so much because I object to what the subsection contains but because I object to the draftsmanship. It seems to me that the draftsman was taking a rather easy way out, a lazy way out. If there are other Acts which are likely to be affected by this section then these Acts should be specified. To have a blanket subsection such as this which merely says "notwithstanding any Act" is too wide and unsatisfactory particularly from the point of view of anybody looking at it from a professional point of view. Only a relatively limited number of Acts can be affected by this. If the subsection specified "notwithstanding the provisions of the following Acts" I think I should not then object to it. Some effort should be made, if possible, to state the Acts likely to be affected and to say that "notwithstanding the provisions of these Acts" this subsection would still apply.
I should like to support this amendment by Senator O'Higgins for the reasons he has given and also because it is just possible, on the present wording of subsection (3), that it is unconstitutional. Article 15, paragraph 2 of the Constitution provides that the sole lawmaking authority shall rest in the Oireachtas. Yet the first sentence of section 3 here reads:
Every order under this Act and every authorisation and direction shall have the force of law——
and it goes on to say that it shall have the force of law despite other existing Acts of the Parliament. Under the terms of Article 15, paragraph 2 of the Constitution, I think it is not possible for the Minister to make an order or give a direction having the force of law and amending or bypassing earlier statutes because, in so doing, he will be taking the law-making function which is reserved to Parliament. I put this forward subject to correction. However, it does occur to me. For that, and for the other reasons, I also should like to support this amendment.
First of all, in the interests of national survival—which is the type of situation envisaged by the legislation, a near-war situation which would be existing in western Europe— in my view to talk about professional purposes or the Constitution, to put it candidly, is irrelevant, dealing with this type of legislation. The French say plus ca change plus c'est la même chose. The former Taoiseach then Deputy Seán Lemass, as Minister for Industry and Commerce, had to deal with precisely this situation in introducing the Supplies and Services Bill in the Oireachtas in 1946. What I am going to say now more or less paraphrases what he said then.
I would ask the Seanad to bring their minds away from academic discussions as to the propriety of this or that section in the context of the Constitution or as to professional investigation into the rights or wrongs on behalf of clients as to particular sections and subsections. I shall be meeting other amendments later on and I have met amendments earlier on. I do go as far as possible but there are certain basic tenets in this matter which I regard as fundamental in order to enable the Executive to operate, to act swiftly on behalf of the community in an emergency. I mentioned oral directions as being essential and, as I say, I have modified it by making it incumbent on the Executive to issue a written directive following on that— and we shall do this on Report Stage. I regard this order subsection as equally fundamental. The Irish people would not thank me if, as Senator Ryan suggests, I listed here a number of statutes in a schedule relevant to the order and, by some oversight, a statute was omitted that was basic in a certain emergency situation. These sorts of things can happen. Everyone here knows how difficult it is to cover all loopholes in any legal measure.
This legislation envisages a situation where lives would be involved. People whose lives were dependent on swift Executive action in an emergency or war situation would not thank the Government Minister or Government concerned at the time if they found themselves circumscribed by over-definition in legislation which prevented action being taken. That is the sort of situation that I envisage. Let me quote one example. Assuming a drastic rationing of electricity had to be operated straight away. At the present time, the only basis on which the ESB can cut off electricity is for non-payment of the bill. That is the position under section 99 of the basic Electricity Supply Act, 1927. The board cannot discontinue the supply of electricity to any such person unless the charge or sum demanded by the board for the supply of electricity is not paid. That is a fair and proper section to govern ordinary circumstances. If we proceeded in an emergency situation to ration electricity I should have to direct or whoever is in my position might have to direct the ESB to have, say, no neon lighting. All neon lighting must be cut out—I just mention neon lighting—or any form of superfluous electricity consumption of that kind. In order to protect employment, only basic current be discharged for basic employment purposes. Current, for all other purposes, must be discontinued and cut off. That is the type of direction I have in mind That, straight away, means a Government order that supersedes a specific section in the Electricity Supply Act, 1927.
Senator Ryan asks: Why not list all these statutes? My fear in doing that is the fear of omission. One might omit a basic statute and one might find oneself, in an emergency situation, where the Government could not act. The overall community interests in this type of legislation, while modifying as much as possible in the interests of people who may be harmed, and so on—I have already accepted one amendment and propose to accept others—while going as far as one can to protect people who may be harmed by such legislation, there are certain basic tenets that must be held in mind when discussing legislation of this kind that is not in any way in the normal sphere of legislation. Many of the views put forward are views that would appeal to me personally in discussing ordinary legislation. We are not discussing ordinary legislation here; we are discussing extraordinary legislation dealing with a real emergency or war situation. There is no doubt about it, to put it mildly, that, if the middle-eastern countries and the north-African countries decided to discontinue oil supplies to Europe, we should be in a war situation. It is as blunt and straightforward as that. That is the type of situation in which we and other European parliaments are introducing this legislation. I should like the Seanad to address its mind to the legislation in the context of that type of possible situation which we trust will not occur.
I should like to support this amendment. I am encouraged to do so by the Minister's reply to the debate. He has ignored, the considerable embarrassment of the Executive in having a Constitution that deprives it of powers and which cannot be taken by the Executive from the Legislature. I wholly support what Senator Robinson said with regard to this.
The Minister is able to produce an illustration of the kind of case where an existing law would require to be amended by a ministerial order. It shows the difficulty of this subsection. If I understand Senator Robinson's argument—she is well able to make it —correctly, the very order the Minister proposes to make to amend that Act might be invalidated by the terms of this subsection which go farther than an Act of Parliament ought to go in the powers it confers on the Executive. As I understand the Minister's argument, they could equally well have been put up in defence of a single-line Bill which would justify the Greek colonels, a single-line Bill which would remove from the Legislature all the power it has got and confer it on the Executive. That would be, however, an invalid Act of Parliament here— anything of the kind. State of war or not a state of war, we must operate through our Constitution.
This Seanad, which is accused by people for not working because it is not asked to work often enough, is well aware of a request by the Executive to pass a Bill quickly and has got through measures within 24 hours: both Houses have combined to deal with an emergency. To support Senator Ryan with regard to the laziness of the draftsman or those who instructed him. I consider that the homework ought to be done completely by the Department as to the range of legislation the Minister should have power to amend and the sections thereof so that he will, in fact, have power to do what he says it will be necessary for him to do but which he may find, in a situation of war, he cannot do because he has sought to take more power than he validly can get by the terms of our Constitution. The Minister ought to give a good deal more thought to the terms of this subsection. I wholly support the speeches made against it.
I shall have a look at it between now and Report Stage. I have yet to be convinced. However, I shall have a look at it.
Is the amendment being pressed?
No. If the Minister will look at it between this and Report Stage we shall have a look at it also and maybe we shall all come up with a solution.
Amendment, by leave, withdrawn.
Section put and agreed to.
SECTION 4.
Amendments Nos. 2 and 3 are identical and, so, may be taken together.
The Minister wants to insert "knowingly" before "contravenes". I want to insert it after "who".
You were never closer together.
I do not think there is much between us here.
Government amendment No. 2:
In page 4, subsection (1), line 28, before "contravenes" to insert "knowingly".
This is to meet the point of view expressed by Senator O'Higgins and others on Second Stage. I think, rightfully, it should be included from the point of view of possible prosecution under the section. It is only right and proper that this should be made available to any defence in that eventuality. This type of phraseology protects, I feel, the defendant in any such prosecution.
Amendment agreed to.
Amendment No. 3 not moved.
Amendments Nos. 4 and 5 are related. If the House agrees, they might be taken together.
I move amendment No. 4:
In subsection (1), line 28, to delete "(whether by act or omission)".
This amendment, I want to concede at the outset, is not as important now as it was when it was put down by reason of the acceptance of amendment No. 2. If the Minister had resisted the suggestion of inserting the word "knowingly" into this line, this amendment I am speaking about now would have been of particular importance. I feel now I am entitled to change my feet slightly and to argue that, having inserted the word "knowingly" between the words "who" and "contravenes" on this line, the inclusion of the words "(whether by act or omission)" are certainly now no longer necessary. They mean nothing to leave them in the Bill and I suggest that they be taken out.
This is a draftsman's point.
Perhaps the Minister would look at it between now and Report Stage?
The draftsman advised that these words be retained. I can see the Senator's point. He says there should be no scope for doubt in view of the fact that it is emergency legislation. I think the doubt is resolved by the amendments already accepted. I shall look at it again between now and Report Stage. It is purely a drafting point. The draftsman says the words should be retained. I think that what we have done meets the point. I think it is superfluous but, as the draftsman says, for emergency legislation he wants it watertight, the matter copper-fastened, as it were.
Amendment, by leave, withdrawn.
Amendment No. 5 not moved.
Amendments Nos. 6, 7 and 10 are all related and, if the Seanad agrees, they can be taken together.
I think my amendment is better than that of Senator O'Higgins but he may think his is better.
Let the Government amendment be moved. I think the Minister is willing to meet my point.
Amendment No. 6 not moved.
Government amendment No. 7:
In subsection (4), line 46, before "neglect" to insert "wilful".
Amendment agreed to.
I move amendment No. 8:
In page 5, subsection (6), line 12, to delete "or by means of which" and substitute "which".
I do not think it makes much difference, Senator.
I think it does. It was Senator Nash who raised this point on Second Reading. I felt it was a very valid point. In subsection (6) the words appear—this is in relation to the power of the court to order forfeiture of goods or chattels—"in relation to, or by means of which, the offence was committed". The point was made, I think, perfectly validly on Second Reading that the inclusion of the words "or by means of which" certainly extend this thing very largely and probably go beyond what was contemplated by the Minister. I imagine that what is intended here concerns an offence in relation to certain goods—like the question of smuggling or it might be a question of a person, in an unauthorised way, hoarding goods—and prosecution ensures. The intention is to give the court power to order that those goods be forfeited in addition to whatever penalties, by way of fine or imprisonment, are imposed in the Act. The section goes a lot further than that. Take, for example, hoarding which may be unauthorised under a ministerial order. The Minister may make an order in relation, say, to coal or fuel of some sort that it shall be unlawful for a private individual to have more than a ton of coal at any one time. Supposing a person, in his house, in contravention of that order, stores two tons of coal. What is to happen under section 6? It will not be merely a question of forfeiting the coal—that is, the goods in relation to which the offence was committed—but it will also be one of forfeiting the goods by means of which is the person's private residence. I think that is the kind of point Senator Nash had in mind when he referred to this on Second Reading. I think it is a good point.
There would be some validity in the point if this could be done by ministerial directive, or something of that kind. However, the courts will have charge of such a prosecution. I do not envisage the courts taking that extreme type of view mentioned by Senator O'Higgins. It is a confiscation provision which is usual in revenue offences and emergency offences of this kind. It pinpoints it to a greater degree, by means of which, I feel it is more positive, more definite. We are really in the draftsman's area here. I shall have a look at it between now and Report Stage but, certainly, as it reads now, I think it reads better from the point of view of the individual. It is better draftsmanship, in my view, as it is now, and it is better grammar. It specifies "by means of which" which is sufficiently definite that forfeiture or confiscation can take place only in regard to any goods or chattels by means of which the offence was committed. I think that makes better language than "by which the offence was committed". It pins it down more directly to the actual means by which the offence was committed whether it was——
The Minister may be misreading the amendment. I want to take out the words "or by means of which". It would then read "in relation to which the offence was committed".
Leave "which" in.
I do not think that would direct the courts sufficiently to what is meant by the provision. The provision is a confiscation provision. It is designed to ensure that, for example, any truck used in the illegal transportation of oil—it is by means of the truck that the illegal transportation took place—it should be confiscated. Surely the phraseology "by means of which" specifies precisely that what is meant here is that the court can impound any chattel used in the commission of an offence against the section. From the point of view of natural justice and, generally, I feel that this is better. From the point of view of the court and the defendant, it should be specific that it must be a chattel or vehicle, or anything you like that was used in the commission of the offence. It is only such chattel by means of which the offence was committed that may be confiscated.
Would the Minister not consider that enabling it to be confiscated is rather draconian? The goods themselves—fuel oil or whatever it is —can be confiscated. The person guilty of the offence can be fined. He can also get a severe sentence of imprisonment. If, in addition, because he is carrying a relatively trivial amount or committing an offence of a relatively trivial nature, he finds himself in the position that a vehicle or goods or chattels to the value of many thousands of pounds can be forfeited, it seems ultra severe. Many of these prosecutions will be coming before district justices. On occasion, some district justices are inclined to take the bit between their teeth and to fling the whole book at a defendant.
It is a good way of acquiring a tanker.
I know it is a draconian provision. In fact, the whole measure is draconian. We hope it will not arise. That is going to the root of the Bill, as it were. I am thinking here in terms of the eventuality of a court dealing with a situation. In that type of situation, the court should be empowered to deal with the lorry, the ship, or whatever means was used in the commission of the offences. It is a forfeiture provision involving confiscation. I agree it is draconian. If one accepts the principle which goes through the whole subsection, the most effective way to implement that principle, and retain natural justice at the same time, is to specify that the only goods or chattels that can be forfeited in those circumstances are goods or chattels by means of which the offence was committed. This shows that no other goods or chattels—other than the goods or chattels used in the commission of the offence—can be forfeited. I think this is fair and proper.
It would be well if we had some definition of what is intended by "goods and chattels" in this sense. Normally, when a person refers to "goods and chattels", he means a person's property. If he refers to all of a person's goods or chattels he means all of a person's property. I am a bit afraid that "goods and chattels" used in this section may extend even to personalty in the form of, for example, of leasehold property. We may end up by giving the power to the courts— unduly wide powers to the court— to order forfeiture of a person's property, in the sense of leasehold properties, if a person in a cell, yard, barn, or some such place, stored quantities of fuel in excess of an amount authorised by a ministerial order.
The limitation of "by means of which" should disabuse any court of extending any confiscation powers under this subsection beyond the actual goods or chattels involved in the mechanical commission of the offence. I do not see how any court could extend that definition of "by means of which" into the area mentioned by Senator O'Higgins.
The offence would be the offence of storing in excess of a given amount. The method by which that offence is committed, in the example I am giving, is by means of the property which has the storage capacity there and is used for that purpose.
By leaving out the words "goods or" and confining it to "chattels" even you are leaving it very strong. However, I think that if those two words are omitted it will avoid the possibility of seizing a leasehold premises which, of course, can be seized by a sheriff, even, in execution of a decree. If a man stores goods illegally in a premises, or hides them there, he has them by means of using that premises. I feel it is over-severe that a man can forfeit a ship or forfeit all chattels. It would make the penalty go far in excess of the crime if a leasehold premises could be seized. If the words "goods or" are omitted and we confine it to "chattels", I do not think a leasehold premises would come under the definition of "chattel".
Perhaps the Minister would look at that?
I would be disposed to agree with the point of view that premises would be excluded. I never envisaged that the subsection would cover that nor do I think a court would take that view. It is possible that such an interpretation could be put on the subsection. I certainly would not desire it. Between now and Report Stage I shall consider either Senator Nash's suggestion of deleting "goods" or some other suggestion specifically excluding leasehold premises. Some such amendment will be considered between now and Report Stage.
Amendment, by leave, withdrawn.
I do not propose to move amendment No. 9. I had intended this as an alternative to an earlier amendment, No. 3, and the earlier amendments dealing with "knowingly". They have been met.
Amendment No. 9 not moved.
Question proposed: "That section 4, as amended, stand part of the Bill."
Have we, by the Minister's amendment No. 2, created a situation in which a person can be guilty of contravening a provision only if he knowingly contravenes it? He could unknowingly attempt to contravene it, by amending, so that it reads "A person who knowingly contravenes whether by act or omission or attempts so to contravene"? Should we have "attempts so knowingly to contravene"? It is entirely a drafts-man's point. I do not want to turn the matter into a madhatter's tea party by doing anything more than drawing the Minister's attention to it lest, by the amendment of the first part, it is possible, under the second part, for prosecution to be made against someone for attempting to do it who did not knowingly do it.
It is a drafting point. I think our "attempts so to contravene" meets it.
This may be right.
I think that brings it in under the umbrella, as it were.
A Senator
I think "so" means knowingly.
Question put and agreed to.
SECTION 5.
Government amendment No. 10:
In subsection (1), line 25, to delete "fails, neglects or refuses" and substitute "fails or refuses or wilfully neglects".
Amendment agreed to.
Section, as amended, agreed to.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill."
Why do we have 21 days in some Bills and in other Bills seven days? In certain things, I think it is so many sitting days after the meeting of the House. Why is it 21 in this one while, in the last Bill we debated, it was seven days? I should have thought this one should have seven days and the last one 21 days.
A difference of style.
Twenty-one is more appropriate and it is more general.
Question put and agreed to.
Sections 7 to 10, inclusive, agreed to.
Title agreed to.
Bill reported with amendments.
Report Stage ordered for Wednesday, 17th February, 1971.