Seanad Éireann debate -
Tuesday, 6 Jul 1976

Vol. 84 No. 10

Social Welfare (No. 2) Bill, 1976: Committee and Final Stages.

Sections 1 and 2 agreed to.

SECTION 3

Mrs. Robinson

I move amendment No. 1.

In page 3, line 20, after the word "places" to insert "other than a person's private dwelling".

This amendment is an amendment to section 3, subsection (6), about which I spoke on Second Stage. As it stands at present, I believe that Section 6 is very broad and encroaches on the area of civil liberties in allowing an inspector, if he has reasonable grounds for believing that any person has insurance cards or other documents in any place, including his private dwelling, to carry out an inspection of that private dwelling. Subsection (6) provides that:

The premises and places liable to inspection under this section are any premises or places where an inspector has reasonable grounds for believing that any persons are or have been employed....

Then there is the second sentence to which I take exception:

and any premises or places where an inspector has reasonable grounds for believing that any insurance cards or any other documents relating to persons in employment are kept.

The purpose of the amendment is to insert, after that second use of the words "and any premises or places" the words "other than a person's private dwelling"—where an inspector has reasonable grounds for believing any insurance cards or any other documents relating to persons in employment are kept.

In his reply the Parliamentary Secretary said that he would not accept the amendment, in fact before he had seen it.

Mr. Cluskey

I had heard the Senator's terms. Because of the respect I have for the Senator's ability to articulate precisely what she means, I accept it as being correct.

Mrs. Robinson

That is a kind way of taking some of the sting out of having an amendment rejected before it has been seen. Nevertheless I would like an opportunity of putting forward what I believe are very strong grounds why the amendment should be accepted; that is that at present it makes a substantial change in the type of power of inspection it would give to an inspector of the Department. I accept what the Parliamentary Secretary said that the power is already broad. It is as broad as the first part of subsection (6) that an inspector can inspect a premises where persons are either employed or have been employed. But the extension in relation to a reasonable belief that certain documents may be in a person's dwelling is, to me far too open-ended. It means that any document about wages of people brought home and put in a drawer at home; it means any reasonable belief that any documentation about or related to either insurance cards or to persons in employment, any information about that, is enough to give the inspector a right to enter and inspect that private house.

I accept, rather sadly, that there is a great deal of truth in the reference the Parliamentary Secretary made to the role of lawyers in relation to the social welfare code, that all too often it is a role of those with money advising employers how to evade some of the provisions. I accept that part of the closing up of possible abuses and loopholes is to try to prevent that sort of advice being given and to prevent loopholes being there. I submit that there is a very important balance to be maintained. It is right to try and exclude some obvious loopholes and to up-date penalties so that they are meaningful penalties in order to prevent employers evading their obligations under the social welfare code. However, it is not right to allow for an erosion of the protection of the inviolability of the private dwelling.

I do not think that it is an either or situation. It is possible for the Parliamentary Secretary to give an ininspector from the Department the full powers he needs but subject to a necessary extra procedure when the search is to be a search of a private dwelling. In other words, this amendment would exclude a person's private dwelling. It would be open for the Parliamentary Secretary to introduce a specific amendment, a section dealing with the case where the inspector reasonably believes that documents or social welfare cards are contained in the private dwelling or, alternatively, it may well be that if the inspector believes that the type of documentation is, in fact, documentation relating to a criminal offence he may be able to get assistance from a member of the Garda who can get a warrant to search the premises. It is not difficult to devise a mechanism which upholds the principle of the inviolability and privacy of the dwelling. That principle has a very strong constitutional base Article 40.5 provides that:

The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.

We are not talking here about forcible entry in the sense of forcible entry with a gun, but nevertheless, the entry of the inspector on a reasonable belief that there is some documentation there would be forcible in the sense that it would not be entry by consent. It would be entry which could not be resisted without the citizen being open to penalties under this section, on summary conviction, a fine of £500 and a year's imprisonment or on conviction on indictment——

Mr. M.J. O'Higgins

It would be in accordance with the law if this is passed.

Mrs. Robinson

With respect to Senator O'Higgins, it must be in accordance with the law which is in accordance with the Constitution. In accordance with law in these circumstances means in accordance with the norms of due process. In earlier cases in relation to a person having a right to liberty save in accordance with law, that in the early 1940s this was given a very limited interpretation, which has been very heavily criticised. "In accordance with law" there meant in accordance with the law of the land for the time being.

Mr. M.J. O'Higgins

May I just say I agree in general with the arguments the Senator is making?

Mrs. Robinson

There has been a considerable amount of criticism of an interpretation by the Supreme Court in the early 1940s of a similar provision of Article 40:

No citizen shall be deprived of his personal liberty save in accordance with law.

That was interpreted at that time by the Supreme Court as meaning in accordance with the law of the time being, meaning any statute. This is in striking contrast to the whole development of an American concept of due process of law and is in contrast with interpretation of other sections such as the protection of the personal rights of the citizen, that there is a core of due process under our law which law must conform to in order to conform to the protection guaranteed there. If that is accepted, then the interpretation of the particular section I referred to:

The dwelling of every citizen is inviolable and and shall not be forcibly entered save in accordance with law.

That law must conform to constitutional norms of due process. It is my contention that the present wording of section 3 (6) goes beyond that. It gives too wide powers to inspectors from the Department of Social Welfare. The control is a very nebulous one. He must believe on reasonable grounds and he has a right then to invade anybody's home looking for documentation. I do not believe that this would be accepted in Britain. I am certain it would not be accepted in the United States and I do not think it should be accepted here. I do not think we should create that kind of imbalance.

We do not have an infrastructure of concern about civil liberties in Ireland in the way I would like that we did, and this is, if you like, an unintentional encroachment on civil liberties. There other areas where the encroachment is more deliberate and intentional; this is an unintentional encroachment on civil liberties. It is a very dramatic one. It is going far beyond the particular ill the Parliamentary Secretary is trying to cure. I accept his statement that there have been abuses, including for example, taking documentation and social welfare cards back to a private dwelling in order to try to evade detection. But there are other more acceptable ways of dealing with that which still retain a balance in our legislation between the State and the individual.

This gives too much power to the Stage agency—the inspectors of the Department of Social Welfare—to invade a person's private dwelling, to search a person's home. It goes past one of the basic principles of common law, that a man is master of his castle, that in his home he is inviolable. There are other very understandable and reasonable inroads in this, inspection of various fitting and fixtures in a house inspection by, for example, the ESB or other State agencies, and inspection even under the social welfare code where persons are employed in that private dwelling. This goes a significant step further and allows an inspector to do what a member of the Garda Síochána could not do. A member of the Garda Síochána could not walk into a private dwelling on a reasonable belief that there might be documentation there that might help him to solve some serious crime. I ask the Parliamentary Secretary now that he has seen the amendment to reconsider his attitude on it and accept that this amendment is necessary in order for the section not to erode an important aspect of civil liberties.

Dr. Martin

I should like to express my agreement with Senator Robinson's point. I demurred at it a little when I first looked over the Bill but I was so in sympathy with the Bill as a whole that I let it slide past. If an inspector has reasonable cause to think that such documents are in a private dwelling he should be reasonably able to persuade the police, and police commissioner, for a warrant to be taken out in order that a search might be made. The inconvenience of going through that process seems to me to be well worth going through when one considers the principle that is being put at hazard by the statement, the rendering open to search of this kind a house. If not in the letter, certainly in the spirit this seems to be against the Constitution. I have felt that about several Bills recently. We sometimes legislate in this House as if we did not have a written Constitution at all and we belonged in a totally common law area. I accept Senator Robinson's point, as much as I accept the goodwill of the Parliamentary Secretary in the matter. I appeal to him to accept her amendment.

Mr. M.J. O'Higgins

Before the Parliamentary Secretary replies, I should like to say that I fully appreciate the desire of the Parliamentary Secretary to ensure that this legislation will operate in a very effective way. The point raised by Senator Robinson is one that should be carefully considered. Senator Martin was correct in referring to the fact that it is not uncommon in modern legislation to incorporate this kind of provision. We have seen it in several Acts. I am not suggesting it has originated by any means from the present Government from the opposite benches and in the Opposition benches in the other House. I adverted to this on a number of occasions.

If the Parliamentary Secretary is satisfied this provision is necessary, and has constitutional sanction in the sense that it is not unconstitutional, well and good. We would all be prepared to go along with it, provided we have this assurance that he regards it as necessary for the implementation of this Bill. Senator Robinson made a point that was troubling me, as I indicated by my interruption, that is, the provision of Article 40.5 of the Constitution which she quoted:

The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.

I was inclined to read that as meaning it was open to the Legislature to alter the position as regards the person's rights in his home by enacting legislation. Senator Robinson referred to a case decided previously on this particular point. She is very much more familiar with decided cases than I am on this subject. Very careful attention should be paid to what she said.

Quite apart from that, it seems to me that this whole thing may very well be regarded as being leaven so to speak, and having to be read in context with Article 40.3 of the Constitution which reads:

The State guarantees in its laws to respect, and, as far as practicable by its laws to defend and vindicate the personal rights of citizens.

It seems to me that one of the personal rights referred to is the right of a citizen of the State to have his dwelling inviolable and not to have it forcibly entered. If I am right in reading the Constitution in that way—in other words at the commencement of Article 40 there is a general declaration a general guarantee given in the Constitution as to the way in which personal rights are to be dealt with by the State, a guarantee with regard to the kind of laws which will and will not be enacted—then one has to look very carefully at a provision in any legislation which may seem to run counter to that.

The Parliamentary Secretary is satisfied that the position is in accordance with the Constitution and that it is necessary in order to stamp out the kind of malpractice he has been talking about. That is one side of the picture we have to see. It is one of the things to be weighed up. I certainly am prepared to go along with the Parliamentary Secretary. I would very earnestly suggest to him that the case made by Senator Robinson on this deserves the very careful consideration of himself and his advisers, both legal and lay, in his Department.

Mr. Cluskey

As I said earlier, I am aware of the reservations Senators may have about certain provisions in the Bill, particularly this one. Indeed, I am glad to see they have this reservation. I would not like to see legislation which could possibly unnecessarily infringe on the rights of the individual passing through this House without being questioned, and without some sort of meaningful discussion on it. I have made inquiries as to the constitutionality of this provision. I am assured that it is in accordance with the Constitution by the legal advice that is open to me.

Mrs. Robinson

What was the substance of that advice?

Mr. Cluskey

The Attorney General's Office advised me it is not in conflict with the Constitution.

Mrs. Robinson

It was just a bald statement with no development of it.

Mr. Cluskey

I have not got the Senator's legal qualifications. I did not go into the more technical legal aspects of it. All I was really concerned about was whether or not it was necessary in the Bill and if I came to the conclusion, which I did, that it was necessary in the Bill, to ask the Attorney General's Office would it be in conflict with the Constitution. On that point I was assured it would not. I must apologise also to Senator Robinson for not answering another issue she raised on Second Stage. I will clear it up now if I may.

Mrs. Robinson

I intended to raise it on the section.

Mr. Cluskey

I was also advised— I specifically inquired about this because different statements have been made—by the Attorney General's Office no later than last week that the £500 under summary proceedings was not unconstitutional. It was on the basis of that advice that I acted.

This House has an obligation to protect and safeguard the rights of the individual. There is another right we have an obligation to safeguard. It is the right of a worker who allows money to be stopped each week to pay his contribution to safeguard both himself and his family against contingencies such as unemployment, sickness, death. We have a right to ensure that, while that man entrusts his money to an employer to be paid into a fund to guarantee him those safeguards, that money is paid.

It is the experience of the Department of Social Welfare that all sorts of ploys are used by employers who are engaged in non-compliance with the regulations. They have at their disposal the best legal advice on how to avail of every possible loophole that may be in the existing law. I have no doubt that were I to accept this amendment, any employer who was engaged in this type of practice would ensure that all relevant documentation was kept in his private dwelling, and make it virtually impossible for officers of the Department to ensure that not only the letter but the spirit of the law we are now passing through this House was observed.

On the basis that I have been assured it is not in conflict with the Constitution, and on the basis of my belief in an individual who is acting within the law, who is paying his fair contribution towards insurance against certain contingencies, as against someone involved in an illegal and fraudulent practice against the social welfare code, against his own employees and against society as a whole, we are entitled—and there is an obligation on us—to take whatever powers are necessary within the Constitution to ensure that these laws are observed and these safeguards provided. There is no question of officers of the Department being given the right of forcible entry into anybody's private home. At all times the obligation would rest with the officer of the Department to ensure and satisfy a court that he had reasonable grounds to suspect that this type of documentation was being kept in the private home.

The contributions which have been made in support of this amendment so far would lead some people to think that it was a departure from existing legislation, and that is not correct. The right of an officer of the Department to enter into a private dwelling has been contained in our legislation for a long number of years. All this is doing is extending the purposes for which that officer may avail of this power.

In a very fair and objective contribution Senator Robinson said that she accepts that in certain cases —the ESB, local authorities and so on—the right of entry should be there in respect of these matters. Senator Robinson also accepted that, if a person was employed in a private dwelling, the officer should have the right to enter that dwelling to ensure the regulations were being observed in respect of that person. Surely any reasonable person who would accept those reasons for entering a private dwelling will accept it as even far more desirable that we should have that power to safeguard possibly the interest and future wellbeing of 300 to 500 employees. If you accept it on behalf of one individual I cannot see the logic of not accepting it in the interest of safeguarding the interests of 300 to 500 individuals and their dependants.

As I said, while there are some provisions which I find distasteful, it is necessary and desirable to include them in the Bill to safeguard the interests of workers.

Mrs. Robinson

While I would like to thank the Parliamentary Secretary for his full reply to the amendment, I am afraid I am not satisfied, so we will have to pursue this a little further. On the question that in the view of the Attorney General's office the subsection is constitutional, I accept that that is his view on that, but I do not think that closes the matter. We must operate not only within the bounds of constitutionality but also within the bounds of a balance between rights of inspection and encroachment on privacy and on the private dwelling. There is still that middle ground there, and I believe this provision, for the purposes for which it is being introduced, over-encroaches on the privacy of a person and on a private dwelling.

The Parliamentary Secretary has referred to the fact that employers might avail of the situation and take documentation to a private dwelling and indeed might be advised by lawyers to do it. I think he will accept that my amendment is not a protection of employers but a civil liberties amendment, if that needs to be made clear.

Mr. Cluskey

I accept that fully.

Mrs. Robinson

The wording of the particular part of subsection (6) to which I take exception bears very close examination. It is so broad as to give a right to an inspector of the Department, if he has reasonable grounds for believing that any documents relating to persons in employment are kept in a house, to enter into that private dwelling. He does not have to have reasonable grounds for believing that they are documents defrauding the social welfare system as that part of the section stands.

Where an inspector has reasonable grounds for believing that any insurance cards or any other documents relating to persons in employment are kept....

I would like to anticipate the sort of assurances I am sure the Parliamentary Secretary would give, that it is not the intention to encroach in a general way, that this will not be abused and so on, and to say that I am not at all interested in statements on the record of this House about what the scope of the section is but in the wording of the section showing what the scope of the section is. Any inspector who could say "I reasonably believed there were documents, although I did not know what was in them, relating to the employment of a person in that private dwelling" is authorised by the section to go in on that ground and have a general inspection.

If we are talking about things like insurance cards or other documents relating to a person in employment, we are talking about documents and therefore when we talk about inspection we talk about a right of search, so what do we mean by inspection in these circumstances except a right to go through desks, drawers and inspect all the documents there. That is a very far-reaching power. The other Senators who spoke and I do not say that under no circumstances can this power be exercised, but we would prefer a provision which provided an extra-procedural requirement for an inspector who is going to go into a private dwelling looking for documentation relating to employment. The additional requirement could be either that he get the assistance of the Garda under a search warrant or the consent of a court or some other mechanism under which the inspector would have to do a little more justifying and the burden on him would be a little more than it might be for inspecting normal places of employment. As the section stands it is very far-reaching and open-ended, and it could give rise to an inspector feeling confident that he will find some document relating to employment, be it a notebook setting out the number of employees, letters about employees or any document relating to employment. If he wished to extend, in an administrative sense, the scope of the powers here, an inspector could say that he reasonably believed there were documents relating to employment in the house, and even if there were not documents he still believed it. It is a very broad scope indeed.

I come back to my argument about the middle ground position. The Parliamentary Secretary says that it is necessary to have this provision and that he has the opinion of the Attorney General that it is constitutional. In response to that I would say it is not necessary to have this power in this form. There are other ways of closing that loophole if it is believed that it could give rise to abuse. I have no objection to the loophole being closed. It is the way in which it is being done to which I take exception. Secondly, I do not believe it is enough to say that there was an opinion from the Attorney General that it was constitutional. There is another aspect to it. Is it desirable to have this degree of encroachment on privacy and on a private dwelling as broadly trained as that in our legislation? Should we not, in this House, be very scrupulous to ensure that there are adequate controls and adequately tight wording on a section like this? Why should we give inspectors of the Department of Social Welfare far greater powers than we give the Garda Síochána?

Mr. Cluskey

Senator Robinson, in pursuit of her amendment, mentioned one or two points which I would like to refer to briefly. The Senator talked about what she described as the "middle ground". I think I addressed myself, in my original reply to her moving of the amendment, to the middle ground, not the constitutional aspect of it. All I referred to in connection with the constitutional aspect was that I had inquired from the Attorney General whether or not it could be in conflict with the Constitution. I was assured it was not. What I said was that before I made any inquiries as to the constitutionality of the Bill I inquired and satisfied myself that not only was it desirable but necessary. It was necessary in order to ensure that the rights of hundreds of people could be protected. There is no blank cheque given, under the provisions of this Bill, to an officer of the Department of Social Welfare to invade anyone's privacy or home. While Senator Robinson argued that a member of the Garda Síochána, of any rank, should be approached and asked, on the basis of a search warrant, to undertake the operation, under this Bill an officer of the Department who avails of the powers under this provision must justify doing so in open court, not in the Garda station.

Mrs. Robinson

It is only to justify the reasonable grounds if there were documents there.

Mr. Cluskey

I give my assurances, although Senator Robinson, has anticipated them, that it would not be my intention nor the wish of social welfare officers, who are an overworked group of people, to poke into people's business, where they did not have reasonable grounds to suspect a breach of the social welfare code.

Nobody will undertake an action lightly without reasonable grounds, particularly when he will have to justify that action in open court. I am sure the Senator will agree with me from reading the reports of some court cases over the years that the members of the Bench are not always favourably disposed towards people who hold official position. Sometimes these officers are open to the utmost scrutiny and questioning from the Bench as to why they availed of a power invested in them.

Therefore, with all the safeguards, which are automatically in our judicial system, I have no hesitation in making this power available to the officers, particularly if it is to combat the kind of operation being practised by some employers, where they are collecting large sums of money from their employees but are not stamping their cards, thus leaving their employees and their dependants in a very vulnerable position if they are made redundant or become ill. If the choice is between effectively curbing that type of practice and inserting this provision in the Bill which is adequately safeguarded under our judicial system, I have no hesitation in opting for this provision.

Mrs. Robinson

Because the Parliamentary Secretary's attitude is very clear, I do not intend to withdraw this amendment. It will be pressed. In regard to the safeguards which might appear to be there in a court, the criticism of the section is that an inspector, under the wording of the section, need do no more than say: "I reasonably believed that there were documents relating to somebody's employment in that house" and the court, looking at the section, must say: "Well, in that case, you were exercising your powers under that section".

Mr. Cluskey

They would not be entitled to ask the officer what led him to believe that?

Mr. M.J. O'Higgins

I must agree with Senator Robinson.

Mrs. Robinson

If asked that then the inspector of the Department would probably say: "I claim privilege for that situation".

Mr. Cluskey

I do not think it serves any purpose to deal now with this type of hypothetical law case.

Mrs. Robinson

We have to deal with hypothetical law cases in these provisions.

Mr. Cluskey

I accept the legitimate reservations that one would have about this. Personally, I am convinced that in the circumstances these provisions are both necessary and desirable. I have dealt with this as best I can. There is nothing I can add to that.

Amendment put and declared lost.

Question proposed: "That section 3 stand part of the Bill."

Mr. M.J. O'Higgins

On the section I would have thought it would have been better to have worded the last line: "any other document relating to the employment of persons" rather than "any other documents relating to persons in employment". The way in which it is worded suggests that the documents need not necessarily relate to a person's employment. I imagine that what is intended is documents related to the employment of persons and that that is the way in which it will be interpreted and operated. I appreciate that at this stage in the parliamentary year it is unlikely that the Parliamentary Secretary would send it back to have it amended, but if I am correct in my opinion as to what is intended, an opportunity might arise in the future to change the wording.

Mrs. Robinson

I would agree completely with Senator O'Higgins that that choice of wording extends still further the scope of the part of the subsection I was trying to limit. Senator O'Higgins has put his finger on one of the reasons why there will not be any amendments of this or any other section of the Bill. It takes a great act of faith to move amendments in the Seanad at this time of the year, with the likelihood of the Dáil being reconvened to process these amendments. Nevertheless, we have a function in the matter.

Senator O'Higgins is correct in saying that the last few words of the section as it stands extend the whole scope of it. They provide for an inspector from the Department who believes that there are documents relating to any person and so on, and then there is the slight qualification, provided that person is employed somewhere on something. It is not in relation to the employment of the person but to persons in employment. Therefore, one could end up with a rather absurd conclusion. If we were in normal parliamentary time, it is the type of amendment which the Parliamentary Secretary should feel disposed to accept from the Leader of the House and correct it.

Mr. Cluskey

Briefly, it is worded as it is because it could deal with forged stamps which would not necessarily be used in respect of a person in one's employment but in respect of somebody employed by another person. It could deal with stolen stamps.

Mr. M.J. O'Higgins

Surely either forged stamps or stolen stamps, if they were to be used, would be used in relation to the employment of persons? Forged stamps or the stolen stamps would not in my view—I am simply expressing my own view—relate to persons whether they are in employment or not, but they would relate to the employment of persons. That is the whole distinction. I think the example the Parliamentary Secretary has given would be, as Senator Robinson put it, in normal circumstances an argument for accepting the change which I suggest.

I am not pressing this in any way, but the Parliamentary Secretary might see the importance of it even more forcibly if I put it in this way. I think it is quite possible that, certainly in large organisations and maybe even in small organisations, confidential information regarding employees would be given by an employee to his employer. I can visualise, for example, the work of prisoner aid societies where an exprisoner, through the good offices of some of these people, would be placed in employment on the basis that the employer knows all about it. If in that organisation it is the standard practice to keep confidential records of employees, they would be documents relating to persons in employment but not documents relating to the employment of persons. To my mind they should not be documents that an inspector or any other person without an interest should have access to. That is the kind of thing that I have in mind in making this point.

Mrs. Robinson

I have rarely been in such agreement with the Leader of the House. I think it is a very valid point.

Mr. Cluskey

Officers of the Department are in receipt of all sorts of confidential information in relation to employed and unemployed persons and their record of confidentiality in this respect bears very close scrutiny. There is no question of an officer using or misusing any information that he may get in the course of his work.

Mr. M.J. O'Higgins

I would accept that. I would not make any suggestions to the contrary, but I merely give that as an example of what I feel is the importance in the difference of wording?

Mrs. Robinson

The Parliamentary Secretary is missing the point made by Senator O'Higgins, that the type of documentation relates to persons in employment, any aspect of persons in employment, their life styles or habits, anything—any broad documentation relating to persons in employment—whereas I think he is perfectly right that the intention is documentation relating to the employment of persons, not necessarily persons in that firm but persons in any firm. "The employment of persons" are the key words. I would support his point on that. In normal times it should be the subject of an amendment brought in by the Parliamentary Secretary and agreed by the House.

Question put and agreed to.

Section 4 agreed to.

SECTION 5.

Question proposed: "That section 5 stand part of the Bill."

Mrs. Robinson

On the question of extending the time—this is purely for the purpose of information—for two years, to what extent is this already part of the code? Does it occur in relation to employment benefits at the moment?

Mr. Cluskey

Six months in regard to employment benefit, stamps.

Mrs. Robinson

Now it is to be extended to two years or more?

Mr. Cluskey

It is 12 months with the exception of employment benefit, which is six months. Now it is to be uniformly two years.

Mrs. Robinson

Has this been made known generally, because it is quite an important point about when time has run out for bringing prosecutions? People could be caught.

Mr. Cluskey

By not knowing the provision?

Mrs. Robinson

I am very much in favour of extending the time but it is the type of provision that may not be very well known, to my own profession, for instance.

Mr. Cluskey

To a great extent we depend on the media to make known the provisions of any particular form of legislation.

Question put and agreed to.

Sections 6 to 8, inclusive, agreed to.

SECTION 9.

Question proposed: "That section 9 stand part of the Bill."

Mr. W. Ryan

I am not too happy about having old age pensioners included here. It states that if they commit an offence they are liable to a very heavy fine. If you look back through the last few years you will find that there were very few cases— only about one each year. There were no cases last year of anybody being prosecuted for such an offence. I honestly believe that if a person were able to get his old age pension, after all the examination he has to go through to get it—and if he eventually got it, fair dues to him, even if he had something hidden away—he should not be subject to such heavy penalties. I am quite certain that if the same scrutiny were given to people applying for unemployment assistance, a lot of them would not qualify.

I am on an old age pensions committee and I happen to know it. First of all, the pension officer goes out and if the person happens to have a small farm or some small industry of any kind, be it a shop or otherwise, the whole thing is scrutinised. Even if that person has a nest egg hidden away, eventually it turns up. Even if it has gone on until a person dies, then his estate becomes known to the Government and the money has to be refunded at that stage. Frightening old people to the extent that if they make a false declaration they can be liable to this terrible fine of £500 or even have to go to prison, is unfair, to say the least of it. Old age pensioners should be omitted altogether from this penalty section.

Mr. Cluskey

Senator Ryan spoke about the very close scrutiny that people applying for old age pensions are subjected to and to the fact that he is a member of an old age pension committee. It is only fair to remind the Senator that in 1973 if you had 50p per week you would not have qualified for an old age pension. One can have up to £14 per week now and qualify for an old age pension.

Mr. W. Ryan

How much has the cost of living gone up since?

Mr. Cluskey

If the Senator is suggesting that it has gone up proportionately from 50p per week to £14 per week I do not think he will get many people to agree with him. These penalties are maximum penalties. The Department would first become aware of an abuse, they would examine the circumstances surrounding that particular abuse. If they were satisfied— and they are not that hard to satisfy, particularly in respect of the people the Senator described—it was not an intentional attempt to defraud the Department, I doubt very much if we would send it forward to the Chief State Solicitor's Office for prosecution. Even at that stage the court, naturally, would take into consideration all aspects of the case before they make their decision. So, there are those safeguards. But it is desirable to have at least uniformity in respect of penalties to be imposed under the social welfare code. I do not think that there are any grounds for the fears the Senator mentioned.

Mr. W. Ryan

The Parliamentary Secretary said that pensions have increased from 10s. in 1973 to £14 now. I find that very hard to credit.

Mr. Cluskey

What I said was, if your means exceeded £26 per year in 1973, before this Administration took office, you were not eligible for any form of old age pension.

Mr. W. Ryan

If your income exceeded £26 per year in 1973 you were not entitled to it?

Mr. Cluskey

No, I am afraid not.

Mr. W. Ryan

I doubt it.

Mr. Cluskey

The Senator said he was a member of an old age pensions committee. Surely he should know that. It is a fact.

Mr. W. Ryan

If your income was over £26 a year you got nothing?

Mr. Cluskey

No. We went into that.

Question put and agreed to.

Section 10 agreed to.

SECTION 11.

Question proposed: "That section 11 stand part of the Bill."

Mrs. Robinson

Again, there is provision on which I would like some clarification from the Parliamentary Secretary. Where the presumption is against the defendant who has filled in an application for a particular benefit, which contains a false or wrong statement, it is provided at the end of subsection (2) that:—

Where in a prosecution for an offence under any of the Acts to which this section applies, or under regulations made under or applying the provisions of any of those Acts, it is shown to the satisfaction of the court—

(a) that an application has been made by a person (in this section referred to as the defendant) for benefit, allowance, pension or assistance under any of the Acts to which this section applies, and

(b) that as a result of that application benefit, allowance, pension or assistance under any of the Acts to which this section applies has been paid to any person (whether or not such benefit, allowance, pension or assistance was that applied for and whether or not it was paid to the defendant),

the defendant shall be presumed to have given any information contained in the application (or to have caused it to be given on his behalf) and, where such information is false, with full knowledge of such falsity and with intent that it should deceive; but this presumption may be rebutted.

I would like to ask why this subsection is being introduced which obviously reverses the normal balance where a prosecution is brought against a defendant. To some extent I can understand it but it seems to me to be rather strongly worded. There is a presumption of the falsity, presumption of full knowledge of that and presumption of intent to deceive. Does this provision tend to put at a serious disadvantage somebody filling in a complicated form, who may not have intended to seriously mislead, and who would have difficulty in rebutting that presumption? I know it is difficult to prove that, any more than there is, to some extent, a factual presumption that false particulars were given intentionally. I have seen other ways of approaching this; where it is a good defence to the defendant to establish that he did do this knowingly, let us put it that way. I have not seen that strength of presumption before against the defendant—a presumption that he knew it was false presumption when it was done with such knowledge of its falsity and with intention that it should deceive, with the burden on the defendant, who was the applicant for the benefit to reverse that balance. I would welcome clarification of that.

Mr. Cluskey

It is not a presumption to falsify. The Department would have to prove that in court. There are precedents for this section. I inquired about this section and was told there are several precedents for it in the Criminal Justice Act, and the Road Traffic Acts. This provision has been in existence for quite a considerable length of time. It is extremely difficult to prove conclusively that someone has wilfully given false information. The Department would have the obligation to prove in court that they were given information with the intention to defraud. The onus would still be on the accuser to prove that in court.

Mrs. Robinson

That would be the normal situation, but this section seems to take away the normal onus on the prosecution to prove the intent to deceive and to leave a situation where, if the prosecution bring in the form and say: "This is not in conformity with the facts", then there is no necessity to prove intention to deceive because the sections says there is a presumption of full knowledge of that falsity and intention to deceive. Therefore the defendant, once that bald evidence has been produced, has then to start reversing the situation and proving positively that there was no intention to deceive. I can certainly see the difficulty, but this section goes about as far as I have seen a provision go to create a presumption which aids the prosecution in trying to prove a particular offence. It aids the prosecution by presuming that it was done with full knowledge of falsity and further with intent to deceive. At the same time, I understand that there is difficulty sometimes in proving intent to deceive.

Mr. Cluskey

My understanding of it is that there is considerable precedent for this in other legislation.

Question put and agreed to.

Sections 12 to 14 inclusive, agreed to.

Title agreed to.

Bill reported without amendment and received for final consideration.

Question proposed: "That the Bill do now pass."

Mrs. Robinson

Can the Parliamentary Secretary say when the consolidating measure will come before the Oireachtas, because I think it is becoming more and more necessary?

Mr. Cluskey

It is becoming more necessary now and it would be of great benefit. Actually, the draft Bill is with the Attorney-General's Office. I hope to have it circulated if not before the resumption of the Dáil, then immediately after, sometime in the autumn.

Question put and agreed to.