Senator Esmonde has an amendment to Section 7, and Senator Bagwell has another.
When I brought in this amendment I had not seen the amendment on the Paper, for I had not got the Paper. I think this question of the right of appeal is very fully dealt with in the other proposed amendments, and I beg leave to withdraw mine.
I move amendment 4:—
Section 7, sub-section (2). To add after the sub-section a new sub-section as follows:—
" (3) Nothing in this Act shall be construed so as in any way to compel any bank or corporation carrying on the business of banking or any official thereof to complete any schedule, form or other document or to give any written or verbal information as to any individual account or to furnish the names or addresses of any customer or to furnish any particulars which might enable any person to identify such information or particulars as relating to any individual person, business or concern without the consent in writing of that person or of the proprietor of that business or concern."
That is a very stringent section. It is one that is very widely drafted, and we would certainly like some information as to the intentions or ideas of the Government in relation to it. I do not suppose myself that they have any ulterior motive. This is a Bill for the collection of statistics, and I presume that all these provisions relate to such statistics as may be necessary for the better development of the country. But there have been rumours as to the intentions of the Government and a certain amount of alarm has been caused, especially amongst that section of the public and its officers who are pledged to secrecy concerning the affairs of their clients. I do not imagine for a moment that the Government propose to interfere with the immemorial tradition, relating particularly to Irish banking, but certain alarm has been created, and I propose no later than to-morrow to submit to the President for his information some very important information that I myself have received on this point. I do not imagine, as I say, that there is the least desire on the part of the Government to attack this principle of secrecy, as to the affairs of their clients, which has been the foundation of banking and an almost immemorial tradition, the observance of which has been most honourably carried out ever since banking has been instituted among us. Owing to that confidence the credit of the country has been built up and the business of the country has been extended and supported and therefore anything that would affect it in any way would, in my humble judgment, be most disastrous to the future of the Free State. I do not wish to dwell very much on these issues. I put the amendment forward simply for the President's consideration and for his matured and balanced opinion.
I think it would disfigure the Bill to put in an amendment of this kind. Surely no one has any idea of getting particulars of any individual's private account in a bank. There is the safeguard that has existed from time immemorial about preserving that, and I think it would be unthinkable to infringe that rule. It was never intended to do that, and I am not at all satisfied that by any extension of the most extreme order you could say that this Bill would enable a person to get that information about any private individual's banking account.
Is there any danger or any possibility that this Bill by any stretching of it would upset the present law with regard to that secrecy? We know that in the past certain authorities endeavoured to get certain information from the banks. They were all unanimous against that information being given. If there is no such danger I think there would be no harm in putting that into the Bill.
Probably the best reason for putting it there is this, that none of us think or have any idea that this kind of information would be sought for or insisted on. There is no doubt, however, that this Bill has created a feeling of uneasiness, and the very fact that people are uneasy about it is harmful. I suggest to the President that it can do no possible harm whatever to put in the amendment and that doing so will allay whatever foolish anxiety there may be about this matter.
I am listening to that sort of talk for the last two or three years. The only way of allaying these fears that Senator Brown refers to is not to pay the slightest attention to them. The papers and people outside talk about credit as if it were a sick baby that one of them had to give a dose of medicine to in the fear that it would not survive. I think it would disfigure this Bill to put in this amendment. If it is put in, someone else may come along and say to the Local Government Department: A doctor should not be asked what particular disorder a person is suffering, because of the rest of his patients, or something of that sort.
There is a special reference to banking in the Bill.
Yes, banking statistics. Are we going to get these from looking up some private individual's banking account?
A lot of things could be got from a private individual's banking account.
As far as that is concerned, if we wanted information of that kind is there anything to prevent the Minister for Finance from putting in a provision to that effect in his Finance Bill? It affects him, I suppose, more than anyone else. There is untapped wealth, according to certain people, amongst bank depositors in the country. But is that ever interfered with, or attempted to be interfered with?
The point here is that banking is mentioned specifically.
Do you think that it is by a side wind a thing like that would be attempted?
I suggest that you are taking power under the Bill to get that information.
I say that is not so.
There is a difference of opinion between us as to that.
If the information is not given, power is taken to have recourse to the Courts.
I would like to see the officer of the Government that would attempt to go to the Courts to get that information. It is ridiculous to suggest that any officer of the Government would go to the Courts to attempt to get such information.
I do not say your Government would do it.
Or any other Government. But supposing another Government came in, less concerned for the credit of the country, what better means could they have of exploding the credit of the country? They could pass an Act of Parliament entitling them to do it.
That would be heading straight for destruction. That would be an attack on our present system of banking, and on the security which the secrecy of the bank gives to the individual. Let us take the case of a Government that is looking for certain information as to certain funds, whether they are in a particular place or not.
You cannot get that through a bank. We did not even try that when we were fighting the irregulars, and it would have been very useful to us. I am considering any other Government that would come along to a bank to get this information. The bank would say " No."
It probably would.
Unless it says " No," I have nothing to argue. If the bank says " No," the officer of the Government must go to the Court to seek an order to get the information. Just picture an officer of the Government doing that. I say that if such a thing happened it would be the end of any Government.
They tried it in another country.
They did extraordinary things then.
There is a feeling in the country——
Yes, I read something last night in the newspapers, written by a bank director down the country, which was enough to make me ill.
I can give the President some further information on this matter. There is no doubt that the trend of events, certain speeches and so on have created a certain amount of alarm amongst depositors in this country. The country is losing money as a result of that, and it will lose more money unless the Government, by some authoritative statement, or by some real exposition of the faith that is in them, make it clear that they have no intention or desire to do anything of the sort. The sooner that happens the better for the country.
I would go out of office before I would do that. I would not insult my successors by leaving anything like that behind me. If there are such fools in the country who would attempt to invade that secrecy Irish public opinion would be roused, and the shake they would give to their supporters in keeping them in office would be sufficient to prevent that.
We have to take this Bill on its reasonable construction. Section 10 provides that every person who has the custody or charge of records or documents shall permit officers of statistics to have access to them and to take copies and to inspect such records or documents. I suggest that record there might mean, if necessary, a private individual's bank account.
I do not agree. Where is individual account mentioned in the section?
The word " record " could be taken to mean account.
There is a great deal of difference between a record and an account.
I have gone to some trouble to look up the law on this matter. Lord Halsbury defines a record as anything that is recorded in writing. That is the legal definition.
I am satisfied from the advice that I have on the subject that that is not the intention of the section.
Would it not be a desirable thing to have a definition of record?
I certainly will not, in any circumstances, give any countenance to allaying this sort of so-called anxiety that exists. I certainly am not aware of it.
Before the discussion closes, there is just this one point I would like to make. I am not speaking now as a banker but as a depositor. The point raised and about which fear is expressed would be dealt with by the kind of amendment first talked about, that is, if the Minister submitted a scheme of regulations without specifying any particular industry, occupation, or anything else. This amendment would affect one particular thing whereas there are other things it might be desirable to protect.
You mean there is another way around the difficulty?
Yes. It will lie with the Oireachtas to approve or not approve.
This is a very dangerous amendment to debate.
But the debate will have to be faced.
I am quite satisfied.
That is the danger of the whole thing, because, in the belief of certain people, this power is given in the Bill. The answer to that is the simple statement that it is not given. Yet legal opinion is taken which says it is given. It seems a dangerous thing in the present state of the country to face such a discussion as this. We are not talking about things because we are nervous or anything of that kind but we do know that large sums of money are lent as regularly in one place as in another and as Senator Sir Thomas Esmonde has said they come here at present because the same certainty of secrecy is secured in the Free State as across the border or in England. But if this Bill is passed as it stands that will not, in the opinion of people very learned in the law, and in other things, be the case, and little by little we who are competing for that money and for the handling of it with other people will not be in as good a condition to compete with them and that money will leave our shores and we cannot stop it. We are as much interested in the success of the Free State as any other people alive and I really think that what we suggest in this matter is worthy of consideration. We are not frightened or nervous or anything of that kind, but we see a danger ahead. I have no doubt the Government can force this Bill through if they want to, but I wonder is it wise of them to get up in their places and debate this kind of thing in that way. I do not like it at all. There ought to be some way of giving the assurances sought for in this amendment. Perhaps you do not like it. It deals with a certain section and it deals with a state of things that no one ever thought about. But surely the law advisers of the Government could devise some section or some amendment which would give what this is striving for, that is a certainty which would enable us to say to all our depositors " You have the same security in the Free State that they have in Northern Ireland and Great Britain with London bankers." So long as the suggestions contained in the amendment are carried out we do not care how they are carried out. This is a practical issue. The President does not like it and he says this amendment would disfigure an Act of Parliament. But there must be a way of getting at the same thing which would not have that effect. The public should have some assurance on the point.
I would like to urge the President not to oppose this amendment, even if he has to get it redrafted afterwards. I honestly believe what Senator Jameson has said, that there is a general feeling which is by no means confined to one Bank or to one section of the community. It is a feeling which every one of us who have anything to do with banking, are up against—a feeling if you like utterly unreasonable, without having any regard to the Government at all, yet everyone who has had to do with the banks will tell you that they find a sort of unreasonable suspicion on the part of those who ought to know better. This is a public debate; the Press are here; this discussion will be reported, and I hope that nothing that goes out from here will suggest that anyone on this Committee believes either that the Government were planning or wished to interfere with the banks, or that there is any likelihood of it taking place. Whether this amendment is carried or not, I hope from what the President has said in the presence of a good many of us here connected with banking, it will go out that there is no danger of that interference taking place. I suggest to the President that he should accept this amendment.
I am certainly opposed to it, and very bitterly opposed to it, indeed; and I will recommend the Dáil to throw it out if it goes back to them. I have been looking in the Press and I see no indication in Dublin of the weakness that is pretended here. I have seen in a country newspaper an article written by a bank director, and from it one would imagine that the Government was a Government of Bolshevics. First of all, we know well that nobody has any intention of interfering with the banks and to put in safeguards anything like that contained in this amendment, you would have to go on until each measure becomes a sort of penitential exercise instead of an Act of Parliament.
Is it not good, very often, to get safeguards into an Act of Parliament?
There is the great difficulty of the psychology of the people.
People have no idea of the value attached to secrecy in this country as to banking transactions. If the people had the slightest idea that secrecy would be violated they would withdraw their deposits.
No one is more convinced of the necessity for secrecy than I am. I quite understand it. I do not understand getting hysterical over it.
The people will not get hysterical; they will simply withdraw their deposits.
The President is probably satisfied of my loyalty to the Free State.
This is the last matter I would have cared to raise, because it affects the situation of the country so profoundly. I never would have moved this amendment if I was not perfectly satisfied that the country, at this present moment, is in a rather dangerous position. There has been a certain amount of alarm created, extending back over some period of time, and with a slow-thinking people like ourselves, and with an ill-informed people like ourselves, they are apt to make mountains out of mole-hills. But there is a feeling, and I have every reason to know there is, that the Government in this Bill is making an attack upon the banks, and people are taking their own precautions. I am afraid if something is not done to stop this move we will see very plain results of it before very many months are over. I do not want to inconvenience the President, or to inconvenience the Government, but I advise him, as a friend, to take whatever steps he can, and to take them speedily, to allay this public alarm. I do not think there is any use in putting this amendment.
Oh, yes, there is.
I look upon the situation as very serious. No later than this morning I have had further warning. I think somebody ought to do something or take some steps to endeavour to allay public feeling; possibly the passing of an amendment of this kind would have that effect. I would much prefer the Government to raise the matter itself and to work out some clause or amendment that would suit their views better, but in the absence of that, in the circumstances, the situation is so grave and I am so anxious about it, I am afraid I shall have to ask the Committee to vote for this amendment.
I think we are bound to put the amendment, unless the President would say he would consider the matter and that he will say something about it at our next meeting along the lines suggested in the amendment. I do not suggest the President should say anything definite as to what we should do. So far we have been only met with a direct negative, and in that case I am afraid it is absolutely necessary to go on with the amendment. My own belief is that the wisest way to deal with the situation would be for the President to allow the amendment to be withdrawn on the understanding that he was going to consider the matter, and that we should discuss it at a later date. I think that would probably be far and away the wisest thing both for us, and far and away the wisest thing for the President as well. It would be much better for us than afait accompli in the form of an amendment of this sort, because facing that danger is a thing that I would like to avoid at the present state of affairs. But without some little knowledge that the President was going to reconsider the matter and without some hope of the Government meeting the situation along the lines suggested by Sir Thomas Esmonde, I think we will have to pass the amendment.
I think it will be in order, perhaps, if I move to adjourn the discussion, and to have the amendment taken up again at a subsequent stage.
The position is that the amendment is being moved, but it can be adjourned or it can be withdrawn by leave.
I would undertake to consider the point between this and the next meeting. Although I would not like it to be understood that I do it with any great grace.
Then I move that the discussion of this amendment be adjourned.
I think we have already agreed that we would allow certain amendments to stand over. We have allowed to stand over amendments No. 1 and 4. The amendment moved by Senator Bagwell is withdrawn on the understanding that it can be moved again in some other form when the section to which it relates comes before us.
That is the first; the other I have withdrawn.
Then, I take it my amendment stands over for further consideration.
" Section 8, sub-section (1), line 33. After the word " statistics " to insert the words " or by a member of the Gárda Síochána in uniform."—Mr. Brown.
That depends on whether or not the first amendment is carried, so that it is consequential. If " officer of statistics " included the Gárda Síochána in uniform it would be all right.
Amendment allowed to stand over.
Amendment No. 6 allowed to stand over.
Section 8, sub-section (1), line 36. To delete the word " prepaid " and to substitute therefor the word " registered."
This is a case where a letter ought to be registered if it is an important thing of this kind, instead of being merely stamped.
That would mean an enormous cost. It would be a very big strain on the Department in question.
But it would only be a case of book-keeping.
It places a burden on one particular Department. A department of the Post Office has to deal with registered letters. It would mean a postman delivering letters, let us assume for a moment, at every farmer's house, must get a receipt for each one. It is not considered an absolute necessity by the statistical people.
It will protect your Statistical Department, because you will then have absolute proof of delivery, whereas if a letter is sent in the ordinary way the person might say that he never got it.
Somebody said some time ago that that particular form was the least reliable, that that was the particular type of letter that people interfering with the mails looked for, and that in consequence there was a greater risk with it than in the case of the ordinary letter. A great number of ordinary documents go out from Government offices, including in some cases demands for Income Tax, which are not registered.
I get lots of them.
And they arrive quite safely.
That is quite true, but I know of cases, both from the point of view of the Government and of the individual who gets the notice, where registration would be of undoubted value. There is no question about that.
Let us assume that there would be 100,000—4,000 to each county. That would be an enormous amount of work for the Post Office.
You will do that by the Gárdaí.
It would be a big affair, of course, but as far as the Government is concerned it is only money out of one pocket into another
That is so, but I have noticed in connection with this Bill that the tendency of the amendments is to increase the cost.
But this will not.
To this extent, yes: a particular Department is there to deal with a particular kind of business. That business is increased and it means an increase in that section of the Post Office. It is not a question of going in and paying threepence on a letter. They keep a record of who it is going to and they get the signature at the other end and they must have a number of returns in respect of it, whereas with the ordinary letter the only record is the stamp, or the prepaid notice, as the case may be, and no departmental incidence of cost is increased.
The difficulty I see about it is this, that where it is distributed by hand the person can claim that he has not got it, and who is to prove that? We all know perfectly well that letters do go astray perfectlybona fide. It will be sufficient to say that it was posted, and they will be liable to the penalties in the Bill for non-compliance. That is the weakness I see.
Take it the other way. Registered letters are all right as long as their number is only small. In this case if you had a very large number, tracing receipt, tracing the fact that a letter went to a particular postman and that he, would either send back the letter and the form or send it back signed, tracing the man who got it, I do not know that it would repay you for the cost.
Would the magistrate be able to use his discretion? If the magistrate was perfectly satisfied in abona fide case that no notice had been served would he not be bound to convict simply because the letter had been posted?
No, postage of a letter is onlyprima facie evidence of receipt. That would be rebutted by the man to whom it was addressed showing that he never got it. If it is a registered letter you produce his receipt, which is evidence against him.
Does it not say in sub-section (1) of this Section that the posting of a letter shall be a sufficient requisition? Would not this particular provision take away from what you have just stated? If it would not I think that Senator Jameson's amendment is not so important.
The officer sends it by pre-paid postage. He does not need at all to show that it is received. He puts a stamp on a letter and sends it to an individual. That proves the offence, and that is the objection to the whole business.
I think, on the other side, we ought to remember the very heavy penalties that are imposed. That must be borne in mind in connection with the issuing of notices. If an ordinary letter goes astray, you do not get it, and it does not matter much. But if you are going to be had up and heavily fined or sent to jail for two or three months for not filling up these forms, then it is our business to see that these forms reach their destinations.
Yes, but if the man says he has not received them?
That is not evidence.
The proof of his having got the document is simply the posting of it.
I would suggest that this is a case where the President might consider the matter before the next meeting, because if the registered letter is expensive there are surely other ways of doing it which will not make it so stringent. I do not think anyone wants the registered letter if there is another way out of it.
You see, he will not be allowed to say he did not get it.
To settle that, is he brought to jail without even going to Court?
That is right.
That is a new method.
And lawfully so.
How would it be affected by having it registered?
He would have to admit that he got it. It would be proved.
I do not think so. I do not think if you put it in that way that it would make any difference, because once it is sent to him as registered it would be a sufficient requisition.
He would then have a grievance against the Post Office.
I will look into it.
You will see what the trouble is at present.
Supposing a man refused to accept a registered letter?
It is worth consideration. If registering does not meet it, then probably these words ought to be altered in some way or another. But there should be more evidence than merely for an individual to say: " I posted a letter to so and so. Therefore he must have got it."
With thousands of others.
With thousands of others. That is the real thing that wants to be looked into.
We will allow it to stand over for the President to look into the matter.
Am I right about what I am to look into?
As to whether there is any objection to putting in " registered," or as to whether he should alter the wording of the section.
I am not satisfied with putting in " registered " gives a man any clearer defence in a prosecution. Is the idea to see that if a man is prosecuted he will have a defence if he does not receive the thing?
Yes, that is it.
I think what the Committee wishes to have looked into is that the simple posting of a pre-paid letter will not be sufficient to make a person liable under this Bill if the letter does not reach him.
That is the whole point.
That a person will not be prosecuted merely on the posting of a letter?
Amendment allowed to stand over.
Amendments Nos. 8, 9 and 10 allowed to stand over.
(1) Every person who has the custody or charge of any record or document -(other than a record or other document in the custody or charge of an officer of the civil service) shall permit any officer of statistics who lawfully so requires to have access to, inspect, and take copies of such record or document free of any charge and shall also, if lawfully so required by such officer, either furnish to such officer a copy of such record or document or any part thereof specified by such officer or, at the option of such person, lend such record or document to such officer.
(2) Every person who shall fail or refuse to do any act or thing which he is required by this section to do shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding twenty pounds.
I move that the section be deleted. I have no objection whatever to entering and to examination under certain conditions, that is to say, if there is any reason to believe that a return is false—aprima facie case that the return is false. Then I should think the officer should go in and examine the books. But merely, without giving any reason, as far as one can see, for a statistical officer to have the right to go in and ask to see any book, document or letters in the possession of any corporation, is, I think, going too far. Of course, if the President is prepared to accept this banking amendment safe-guarding the accounts, that would go a certain way towards meeting it, but even outside banking it would be very undesirable that statistical officers should, without showing prima facie cause, go in and examine records in that way.
The same point has occurred to a number of different people with different points of view. We all feel that this thing is extraordinarily wide and might lead, if used, to very great tyranny.
And if restricted, to very little information. After all, I cannot understand what use a person's private affairs would be to the Government for the purpose of statistics.
No; but that is where all the documents come in. You say, and we all accept it, that there is nothing in your mind, or in the mind of any member of the Government, to ask for that kind of document, but I do not think the Bill can be drafted on those lines or on that assumption.
After all, the man who will be the statistician has most to do with this, and he is an officer of the State called upon at short notice for such information and expected to produce returns, statistics and so on, at the end of a year. In a very short time this man's office will be run just the same as the ordinary Government offices, with no time whatever for this outside. Consider the time when there was no police force in the country. When it was proposed to establish one you can imagine the great number of people who said: " Our liberty is going to be interfered with by these fellows, who will have the right of bringing us up to the police station, and in cases it will be questionable if they have the right to do it at all or not."
In connection with this section there is a point on which I would like to ask some information. It seems to me that there is an objection to it unless I misread the section or that the danger I foresee is safeguarded somewhere else which I have not noticed. The objection is this: under the Bill power is given to obtain statistics. An officer calls on me for certain statistics. I have my doubts as to whether he is acting within his duty and I refuse them. The President said that he would have to go to the Courts to force me. It seems to me that that Section 10 gives power to the officer, without going to Court, irrespective of who is right, to have access to any documents. I can quite conceive of a case where, with the very best intentions in the world, one would decline to give information. If it was proved there was no mistake you certainly would give the information, but it certainly does appear objectionable for anybody to have power to go in and take it from your books in the event of a refusal. There is nothing apparently in the section to require the officer concerned to go even before a District Justice or anybody else, for an order to examine such documents. The section says that he shall have power to go in and inspect the records himself. If I am wrong in that interpretation I think there would not be very much in the matter, because I quite agree that eventually the officers must have power to go in and take information in cases where it is refused or withheld.
The information required must be " lawful "—" any officer who lawfully so requires." There would be no earthly reason why, if I were an egg merchant, he would have a right to come in and count the number of eggs in my shop although it might be held that he was lawfully entitled to do it.
Does it not appear reasonable that you must assume that a man is telling the truth when he is making a declaration? You could arrange to have this declaration signed subject to penalties and is it not to be assumed that he is telling the truth until it is proved to the contrary? Here, if you have any reason to doubt the information, you say that the officer shall have power to go in and inspect his books and documents.
Certainly. The most truthful and the most honest men make the most shocking mistakes very often with regard to the information they give. What is required there, is something to show how the information is acquired. If, for example, I said I sold five thousand cattle on a particular day, and mixed it up with some other day and find that the number was only three thousand, that would be an untrue record. If you get statistics that would not be true or that would not be checked with precision in the beginning, it would be rather difficult to get correct returns and correct records.
I do not think the President has given a good illustration because a person having cattle would have no books at all. A business man is presumably capable of supplying correct information.
Testing it without records, it would not be the same thing.
The Registrar of Joint Stock Companies has not got this power. Under the Companies Acts he cannot go in and inspect books if he doubts a return.
I do not know about the Registrar of Joint Stock Companies but I know the Registrar of Friendly Societies has very little power.
There does not seem to be any reason why this wide power should be given under this Bill. Should it not be dealt with ratherad hoc.
There does not seem to be any such section in the South African or Canadian Acts. I do not know about the Australian Act.
As an instance, I may mention, that some time ago I noticed there was an extraordinary drop in Guinness' exports. It was so extraordinary that I wanted to find out what had happened. I was informed that these returns, as published, are made out by some person who is not an officer of the State and that it occasionally happens that they are very incorrect. You may get the full return for a year quite correctly but the other information you do not get so correctly.
Perfectly right. I know that in our own case, not from Guinness's.
You have the same check here in relation to that. I sent to the Ministry of Industry and Commerce for information, and I got a very long report, which showed at any rate that within given periods exact returns are not furnished. Within other periods exact returns are furnished, but the intermediate returns may not be correct. I am almost certain that this particular section would safeguard the information, or at least get us correct information in that case.
It would enable them to go in and get it during the intermediate period?
It would enable them to go in and take a good many other things besides. That is what is running in our minds, that this will enable the statistician to do this work and will enable him to do a great many other things which, in the language of the ordinary individual, means an infringement of the liberty of the subject. I do not know that there is any reason for that.
This will be worked from the statistician downwards. It will be fairly busy work, and I am fairly satisfied that there will not be much time for the prying that is suspected.
But we think that there should be no opportunity for it.
That depends to a very large extent on the head of the Department, on the allocation of work, and so on.
For the first few years they may be all right, but when it is in full running order, they may have a little time on hands and they may like to investigate other matters. We are not legislating for to-day or to-morrow.
This power should be given only where there is any doubt of the bona fides or the accuracy of the information given.
I would say the accuracy.
You might have cases where you would doubt the truth of the information. There might conceivably be cases where false information would be supplied, but I feel that a prima facie case that the information is false should be made out before an officer can go in and examine the documents. How is it done in the case of the income tax?
It is done in this way: so long as you do not assess a man for more than his income you are all right.
The income tax authorities have got a huge amount of information, and they have no powers as wide as that.
They do get a lot of information.
The income tax people throw the onus of proof on the individual.
It is terribly costly, it demands time. The Revenue costs are, I think, £600,000.
I should like to see some amendment inserted to ensure that this power would not be exercised until the officers showed that there was some cause or reason to doubt the truth of the information.
How are we going to get that?
I would give the people some credit for telling the truth.
That is the trouble again. It is the truthful man who is the great danger. You know he is telling the truth but he may not take the trouble to regulate all the dates or returns to the precise moment.
I think this is the most inquisitorial thing I ever read. No business affairs would ever again be private if the books were thrown open in this way. I am always saying, because I accept it, that there is no such intention but powers are given under this section that will permit that. That is all wrong I think.
If a man did not understand the form he would not object to an officer going in. If he consents let him go in.
If he does not consent you are gambling on the whole of the information.
If he does not consent you have got to show cause before the justice or judge.
You can't make the judge or justice a statistician.
No, but he can make an order.
I have the greatest respect for them but I do not like to give them any more than they have to do.
If the individual refuses it rather excites suspicion and then the judge, if he thinks that the information on the face of it was incorrect, would naturally give power.
He would be naturally on the side of getting information.
If a man objects, we have got to prove a case against him then. You would have to prove that it is necessary and that it is lawful, for the purpose of getting statistics. It is not a question of sending out a person loose to do what he likes.
As the Section stands, if any man refused particulars you could walk straight in.
But at any rate, the very act of refusal renders them liable to a penalty.
Just because he takes the preliminary action of refusing, he is liable to a penalty. That is the difficulty of the situation.
It is impossible for the reporters to report five different speeches at the same time.
Under this section it is right to say a man can refuse to give access. If he does that, you cannot go on, but then you can prosecute him and he will be able to make his case.
He will be able to make the case that the officer sought information other than was lawful.
I think that is a perfect safeguard provided you give the right to appeal.
Is that quite correct in view of the fact that the section says that any person who has the custody or charge of a record or document shall permit any officer of statistics or any member of the Gárda Síochána to have access? Would not proof be simply proof that he had refused to give that access and that he was then guilty of an offence?
Under the section as it stands, refusal is a criminal offence and he renders himself liable to a fine for having refused.
I do not know whether it is criminal or not.
Then the question arises as to whether he has refused merely to defeat the Act or whether he has refused in good faith statistics which are lawfully required in the Act.
Would you be prepared to put that in the Act?
There is nothing here to say as to why he has to ask——
" Lawfully " is defined. I thought when I was speaking on the matter in the Seanad that it was not. In the first section it says: " The word ‘ lawfully ' when used in relation to an officer of statistics means under and in accordance with this Act, and in the proper course and for the purpose of his duties and within his authority as such officer."
As the section stands at present you are liable to a fine of twenty pounds if you do not let him in.
Do you wish to press for the deletion of the whole section?
Yes, but I think I will reserve it.
Then we will allow the amendment to stand over.
Amendment allowed to stand.
I have also an amendment down to Section 10, but I will allow it to stand over too.
Amendment 12 allowed to stand.
New section. After section 10 to insert a new section as follows:-
" 11.—(1) Notwithstanding the provisions of section 85 of the Courts of Justice Act, 1924, an appeal shall lie against an order of a Justice of the District Court for the payment of any penal sum under section 7 or section 10 of this Act or for any term of imprisonment under section 7 of this Act to the Judge of the Circuit Court within whose Circuit the District or any part of the District of the Justice lies.
(2) The Justice of the District Court or the Judge of the Circuit Court shall, if requested by any party to any proceeding under this Act (unless he considers the request frivolous), and may, without request, refer any question of law arising in a proceeding under this Act to the Supreme Court for determination, and the determination of the Supreme Court thereon shall be final and conclusive."
Speaking in the Seanad the other day, I said it was of great importance to have some sort of tribunal between the citizen who was required to give information or fill up forms and statistical officers. I forgot at the moment that there was, under our Courts of Justice Act, an appeal from every order of a District Justice in a criminal matter, and this would be a criminal matter because it involves penalties, including imprisonment.
There is no imprisonment.
There is under Section 7, but not under section 10. Under the Courts of Justice Act]there is an appeal from the District Justice to the Circuit Court, but it is confined to cases where the fine is not less than £1, and where the imprisonment is not less than one month. There might very well be a case under this Bill where a fine would not be £1, or where the imprisonment ordered would only be for one week, and it would be a very serious thing for the person who would be fined or ordered to be imprisoned. What I propose is, to give the right to appeal, although the fine is not £1 or the imprisonment not for one month. That is done by the first sub-section of the new section. By the second sub-section I propose to give the right of stating a case, which is given to the District Justice in the ordinary way. This power would be only used in some case of real importance involving a question of law under the statute. The actual difference it makes in the present right of appeal is, that it gives an appeal from a penalty of less than £1 or a term of imprisonment of less than one month.
That would disturb the code already in operation under the Courts of Justice Act.
Only in this case.
What is the reason for it?
The reason is that there is no doubt that the powers given under the Bill are extremely wide and drastic, and it may be that some person will be prosecuted under it and will be either fined something under £1 or given forty-eight hours' or a week's imprisonment, and that might involve some real question of law. Why should he have to go to gaol without the right of appeal, where there may be some real question of law and where his personal liberty is involved?
Justices, I think, are usually amenable to a request to extend the fine or imprisonment in order to enable an appeal to be taken.
That is at the discretion of the Justice. Sometimes they do it, and sometimes they do not.
If a question of law is involved, I doubt very much if a District Justice would refuse it.
Why not make it certain?
Because it seeks to change the code set up. Why should you do it in respect of this?
This is a different kind of an Act.
One Act is just as good as another so far as laying down the law is concerned. The persons affected ought not to get preferential treatment, because the Seanad may think that its friends are affected by this and puts in minor penalties with regard to an infringement of it. That is the way an outsider will look at it—as if they would not even trust the District Justice to increase the penalty, just as he would increase it for the ordinary man in the street if a question of law is involved. I cannot understand why a District Justice would not accede to such a request in order to enable a law point to be considered.
The ordinary individual in the street who will be relieved from getting a week's imprisonment without the right of appeal would consider that he is being protected. This is a new class of offence which has never been heard of before.
It has not been given with regard to anything else.
The nature of the offence has not been altered.
There never was such an inquisitorial Act as this.
Never. This creates a number of new offences.
A number of perfectly indefinite offences.
If you examine this Bill in a hostile spirit it is a very astonishing combination.
It certainly has got anything but a friendly examination here. I do not know whether you would call it hostile or not.
In the most friendly way.
This is a small point and I do not think it ought to be pressed.
I do not think it is a small point. You have no other protection for the ordinary person under this Bill.
You have the District Justice.
I suggest that the framers of this Bill did not realise what may be done under it. Any amount of use may be made of this. It is not desirable that people who are likely to contribute to the trade and general prosperity of the Free State should be deterred from setting up business here, and I think this is very much calculated to deter them. It gives inquisitorial powers into people's most private business affairs in a way that I have never heard of before, not even in France where they go very far in that respect. Whether the powers given are used or not, look at the capital that can be made out of this Bill.
It is a most astonishing Bill.
I do not see how you can give protection to people under this Bill, which creates many new offences, without this amendment. I think it would be wise for the Government to accept it and then they can say that the penalties would only be inflicted in cases which have been properly investigated and that every protection has been given to the individual.
You are jumping from the District Court to the Supreme Court.
That is only in a case stated. It will be better to go to the Supreme Court. They used to go to the Appeal Court.
Does not Section 83 of the Courts of Justice Act provide for an appeal to the High Court?
Then you are jumping a court and proposing an appeal to the Supreme Court.
There is no difference in the expense.
I would be inclined to look more favourably on this if we had unpaid magistrates, but now you have District Justices who know something about the law after ten years' experience, or something like that. They are drawn from the legal profession, and if there is some doubt about a question of law and a District Justice will not increase the penalty to allow an appeal, I think you will have to recruit District Justices from some other source than the Bar or the solicitor's profession.
I would like to be sure of it.