Select Committee on Enterprise and Economic Strategy debate -
Tuesday, 25 Jun 1996

SECTION 24.

Mr. S. Brennan

I move amendment No. 8:

In page 20, lines 7 to 10, to delete subsection (3) and substitute the following:

"(3) The Minister may by regulations provide that the contravention of any specified bye-law or bye-laws made by the Board under this section shall constitute an offence and that a person who contravenes such a bye-law shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 6 months or to both.".

I expect to have as much success with this amendment as I have had for two days in securing changes to the Bill. Despite the strong and almost unanimous arguments put by the Opposition, the Minister has not promised to introduce amendments of any type regarding consultation, entry to property or funds for local groups. The Government is saying "No" and this is indicative of the way the Bill was rammed through the House. The amendment is my final effort and, perhaps, the Minister will oblige the committee on this occasion.

Section 24(3) states that a person who contravenes a by-law under the section shall be guilty of an offence and could go to jail for six months. This relates to a CIE by-law and I want to remove that power from CIE and give it to the Minister. I want to ensure that regulations made by the board of CIE will not result in somebody going to jail for six months. The amendment states the Minister may by regulation provide that people can be sent to jail for six months for contravening the by-laws.

The Bill states that a person who contravenes a by-law under this section will be guilty of an offence. However, this should be a ministerial and not a CIE power. CIE has too much power in many areas to make regulations. It is a commercial board and a decision of such a board should not result in somebody being sent to prison for six months.

Mr. M. McDowell

I support the amendment. Section 24 allows the board of a company to make law. There is no requirement that the Minister must approve of what it does or that the Attorney General must see it. The sub-section provides a prison sentence for people who contravene the rules. How can the Minister allow a board make the law of the land without reference to the Office of the Attorney General or seek the permission of the Minister?

Mrs. Doyle

Section 27 meets the Deputy's requirements.

Mr. M. McDowell

The Oireachtas can supervise it; that is fair enough.

Mr. Costello

Section 27 covers the point. By-laws must be made in consultation with the Minister and come before the Oireachtas. My concern relates to the unimaginative set of penalties in the Bill.

Mrs. Doyle

They seem to be standard.

Mr. Costello

Every offence warrants a fine of £1,500 and/or six months imprisonment. Irrespective of the seriousness of the offence or whether it relates to a by-law, trespass, obstruction or damage, the fine is £1,500.

Mrs. Doyle

Not exceeding £1,500.

Mr. Costello

I thought the Minister would have been much more imaginative on this matter and would have considered alternative sanctions. Is an alternative sanction to a fine or imprisonment not possible? A £1,500 fine for people in certain circumstances from particular areas is an enormous sum. A term of imprisonment of six months is also an enormous period of deprivation of liberty. Could alternatives be considered, such as community service or working with CIE for a period of time or consulting with CIE for six months? The penalties should be examined.

Mr. M. McDowell

According to the structure of the section, CIE can make the by-laws and the Oireachtas can revoke them, but the offence is the contravention of a by-law and CIE cannot say a person will be fined £50 if he or she does not pay a fare. The penalty will be £1,500 or six months imprisonment for any infraction.

Mrs. Doyle

That is not the case.

Mr. M. McDowell

It is. The section states a person who contravenes a by-law under this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding six months or both. It does not give CIE the right to say a fine will be £50 or £5. It will be an offence under section 24(3) and they are the penalties.

Mrs. Doyle

The judge can decide.

Mr. M. McDowell

We are also making criminal law. Does the Minister seriously propose that it should be possible to send somebody who fare dodges to jail for six months? What type of system is that? One month should be enough.

Mrs. Doyle

The option is there. Proportionality will come into play when the judge determines exactly what the fine should be. Nobody suggests a person is likely to get six months in prison or face a £1,500 fine for a first offence of fare dodging.

Mr. M. McDowell

Should that be permissible?

Mrs. Doyle

It should be permissible for persistent abusers of the law in this regard. The option should be there to allow it.

Mr. M. McDowell

Statutes normally state a certain penalty in respect of a second or subsequent offence. They do not state that a judge can take certain action. Some judges will impose the penalties. For example, one judge has remanded people in custody for failing to pay fares. We should be clear about this matter.

Chairman

I thought that is what Deputy Brennan's amendment stated.

Mr. M. McDowell

We are not talking about the amendment.

Mrs. Doyle

We are discussing the section and the amendment with or without the Chairman's permission.

Mr. M. McDowell

Are we finishing shortly?

Chairman

It appears that we are within an ace of completing the business and rather than adjourning and coming back — the order of the House is that we complete it by 11 p.m. — I will attempt to finish the debate on the Bill by 6 p.m., assuming we are not contravening the union rules of the staff.

Mrs. Doyle

It seemed initially that the point being made in the amendment was a reasonable one in that it sought to distinguish penal by-laws from others of a more administrative character. Similar provisions exist in older legislation. I understand that the amendment could be subject to constitutional challenge on the basis that it gives the Minister power to decide which by-laws should attract a penalty. I have been advised that this could be seen as an exercise of legislative power contrary to Article 15.2.1 of the Constitution. Furthermore, in the case of the State, Harrington versus Wallace of 1988, Irish Reports 290, the Supreme Court appeared to suggest that the infringement of a by-law must attract a penalty. It is the essence of a by-law that it must attract some form of sanction in respect of its breach. In such circumstances, the whole object of by-laws would be undermined if the existence of a penalty was left exclusively to the Minister. For these reasons I regret I am not in a position to accept the Deputy’s amendment.

Mr. S. Brennan

The Minister said that it should not be left exclusively to the Minister, but, as it is, is it not being left exclusively to the company?

Mrs. Doyle

It is specified in the section.

Mr. S. Brennan

It is left to the company to introduce the by-law.

Mrs. Doyle

No, it can also go before the Minister and to the Houses of the Oireachtas, as the Deputy knows. Section 27 makes provision for that. It is not left exclusively to the company in that sense.

Mr. S. Brennan

Is the Minister's advice from the Attorney-General?

Mrs. Doyle

Yes, it is.

Amendment, by leave, withdrawn.

Section 24 agreed to.