Dáil Éireann díospóireacht -
Wednesday, 27 Feb 1924

Vol. 6 No. 19

DÁIL IN COMMITTEE. - FISHERIES BILL, 1923—FROM THE SEANAD.

Message from the Seanad with altered amendment inserted, viz, a new Section before Section 9.

"Save and except in any case in which the Executive is satisfied that there has been a miscarriage of justice no penalty inflicted under this Act shall be reduced or remitted save on the recommendation of the Justice who imposes such penalty or the Appeal Court in the event of an Appeal and any recommendation for such reduction or remission shall be made at the same time as the penalty is imposed or the conviction confirmed."

AN t-AIRE UM IASGACH (Fionán O Loingsigh)

Cuirim mar thairisgint "ná aoinntuigheann an Dáil leis an leasrún," agus ní gádh dhom puinn a rádh mar gheall air. Ní cheist aireachta anois é ach ceist dlighe agus ceist bunreachta. Is beag a bheidh le rádh agam ar sin.

I move "That the Dáil do not agree with the Seanad in this amendment." I do not think that there is any great necessity to speak at length on this subject, as the same arguments which I brought forward against the original amendment in the Seanad apply also in this case. The matter, at any rate, has now become a matter of law and of the Constitution, rather than a departmental matter. I do not, therefore, propose to say anything further.

ATTORNEY-GENERAL

I must say that I deprecate dealing with this matter as a matter of technical law. I think it is a mistake when you hear people generally, but most of all Deputies, refer to some matters that may be concerned with law as having some mystery about them. The law ought not to be a mystery. It ought to be within the intelligence, certainly, of Deputies.

Mr. JOHNSON

And even Bills.

ATTORNEY-GENERAL

To try and convert this matter into a dispute between two persons who happen to have some connection with law is, in my opinion, a great mistake. When the amendment of the Seanad came here in the first instance, I suggested, in the course of the debate, that the Seanad amendment was not an amendment in the nature of an amendment of law, but was in the nature of cutting down the position of the Executive with regard to the remission of penalties and punishment. That observation is very plain and simple and, I think, correctly represents the position appearing in the Official Reports of this House and now enshrined in the Official Reports of the other House. We hear the Seanad sometimes referred to as a "cooling chamber," but there is not much of the icicle in the framework of my observation as it appears in the Reports in the other House. I do say that if anybody reads the piece of masterly advocacy, as one might expect masterly advocacy of a certain position in that Report, he will realise, after calm consideration of the particular subject and a comparison of the amendment as it was first sent down by the Seanad, and as it has now been returned to us, that my observation here was absolutely correct and justified in all respects and confirmed and corroborated by all that was said about it in the other House. I said that that amendment was not directed to amending the law, as regards the Fishery Laws in particular, and anyone who refers to it will find that the matter, which was first introduced as a matter of advocacy, and really as an afterthought, in the other House, was proposed originally by people who had not in mind any amendment of the Remission of Penalties Acts or of the Fisheries Acts, but who had in mind a clipping of the position of the Executive as regards advising the remission of penalties in this particular case. One has observed in various Acts that recently left this House a tendency to deal in that manner with the position of the Executive responsible to this House. One is inclined to call to mind the observations made with reference to the Doctor—how much he was prized in the case of illness, and how, in a more normal condition of the patient he was not subject to quite so much admiration.

There is no doubt that this amendment was originally directed to cutting down the authority of the Executive responsible to this House, and depriving it of power to advise the remission of penalties in relation to the cases that were dealt with in this particular statute. I said then, and I say now, that in an Act of this kind which has minimum penalties, it is important that that power should be preserved, more unimpared than it might be in an Act of another kind. There is really very little more to say. I take it that in the general Act which the Minister proposes to introduce later in the year he will have had the benefit in the meantime of this Act if it should be allowed to pass, and he will consider the question of minimum penalties as regards the general law. He may also reconsider the decision as regards persons who institute prosecutions and get portion of the fine, but there was a doubt many years ago as to whether in such cases the prerogative of mercy could be extended to deprive the prosecutor of the profit which he gained under the prosecution. Though we have heard it asserted that the other House contains guardians of the Constitution and of the people's charter of liberty, I venture to say that in this case the position of the responsibility of the Executive to this House has been impaired by this amendment, and I therefore submit that this amendment should not be accepted.

Mr. DARRELL FIGGIS

When this amendment from the Seanad was before the House for the first time, I stood in defence of it for the reasons I then gave. Now that it is returned to us, somewhat softened in form, I would like to say that I still stand in defence of this amendment, and for the same reasons that I gave on that occasion. In dealing with certain arguments I brought forward then, both the Attorney-General and the Minister for Home Affairs raised the argument as to the prerogative of the Executive to dispense with certain sentences that might be imposed in courts of law, and as the result of which hardship might be done. That, I take it, is the essence of the case put forward now by the Attorney-General and by the Minister for Fisheries in urging this amendment to be refused. Therefore I would just like briefly to address myself to that one point. Whatever may be the truth in other places— and I am not wholly disposed to accept the Attorney-General as the fullest interpreter of those arguments put forward in those other places—so far as I personally am concerned, I do feel that there is no attempt made in at least the form of this amendment, whatever the intention may be of those who move it, to impair the prerogative of the Executive, to dispense with any sentence that has given hardship or the result of which may lead to injustice. It merely means this: that the prerogative of the Executive to change a sentence or to dispense with that sentence altogether is a right that ought not to be exercised except in the last resort.

It ought not to be allowed to intervene in the very lowest form of Courts. If there is to be an appeal from the lowest ring of Courts it should be to a higher Court and the Executive should not be appealed to until the last argument has been carried to a higher stage than the District Justice's Court. In the Courts of Justice Bill, which is now before the Oireachtas, it is made evident that cases of injustice may occur, that a District Justice may give some sentence which might not be a correct sentence. Later, facts may come to light that may require some change or revision of that sentence. I would say that the right place for these new facts or new conditions to be investigated is not the Executive offices of any Minister but another Court of Law. Either the facts are facts or they are not facts. Either the arguments brought forward are sound or are not sound. The substantiation of the alleged new facts and the correctness of the alleged new arguments are matters that should be investigated in a Court of Law. If it be the case, as the Minister for Home Affairs seemed to reveal when he spoke on this amendment when it was last before the Dáil, that a District Justice would be apt to give heavy fines and penalties in respect of offences under this Bill merely as a matter of display, as a kind of public discipline and corrective, without intending that they should be operative, then I think that is a course to be deprecated. I stood then in defence of this amendment and I stand in defence of it again. I think it is right that the prerogative of the Executive should be exercised, but that it should not be exercised on an appeal from the lowest ring of Courts until the procedure of justice has gone further.

Mr. O'DOHERTY

I suppose that Deputy Figgis knows as well as any other Deputy that we have not yet reached our full powers in our Saorstát and in that respect I might refer him to the American Constitution from its inception to its final position. Unfortunately, as we are placed at present, we have some of our own nationals against us. I think the President can tell us what the cost of that has been and the Minister for Home Affairs can tell us the difficulties of our Defence Forces in trying to save our position. As to the Minister for Home Affairs, I think every Deputy has the most perfect confidence in his integrity. In this matter, which affects us all, every Deputy is as responsible as the Minister who may be concerned.

AN CEANN COMHAIRLE

Is the Deputy aware that this is an amendment to a Fisheries Bill?

Mr. O'DOHERTY

I am coming to that now. I thought I would give a little ancient history before I came to it. The motion of the Minister for Home Affairs——

AN CEANN COMHAIRLE

There is no motion by the Minister for Home Affairs. I am afraid the Deputy is talking about a different matter from the one before us.

Mr. O'DOHERTY

I was going to ask the Attorney-General to give us some guidance. I must disagree with Deputy Figgis anyway.

Major COOPER

I do not want to stand between Deputy Doherty and the light that radiates from the Attorney-General. I rather want to transfer the discussion from a question of law to a question of fact, or even a question of expediency. Sitting here it was not easy to hear the Minister for Fisheries, as Ministers who speak from that corner rather tend to address the Press. I should like to know his opinion as to what the effect will be on the Bill and on the fisheries of the country if the Seanad continue to adhere to this amendment, and the Bill is held up for 270 days. We gather, as far as we have any means of judging, that the Seanad attach importance to this amendment. We did return it to them once, and they have washed its face and dressed it in a new dress and sent it down again. I have no means of knowing what the Seanad may do, but I meet a number of Senators on Joint Committees and in other places, and I find they are tolerably obstinate. It is quite conceivable that they will continue to adhere to the amendment and will hold up the Bill, as they have a Statutory and Constitutional power to do, for a period of nearly nine months. This Bill, even though it has not become law, has already done good. The knowledge that such a Bill was on the stocks has checked poaching during the last spawning season. If the Bill is held up it will be held up until virtually the middle of the next spawning season, even over the middle of the spawning season on some of the earlier rivers.

Mr. F. LYNCH

The 270 days starts from the day on which the Bill first entered the Seanad, and, even if it is held up, it will, therefore, according to the Constitution, become law in September. That is before the spawning season starts anywhere.

Major COOPER

That is exactly the information I wanted to get.

Mr. HEWAT

It does not seem to me in the ordinary way that this amendment is of very great importance, but it acquires a very considerable importance in our eyes, I take it, owing to the attitude of the Seanad in returning it to us again for further consideration. It appears to me that this Dáil must maintain the position it has already taken up in connection with this matter. Deputy Figgis says that before the Minister comes to a decision as to a certain case an appeal should be taken to a higher Court of Justice. It seems to me that the decision of a Justice when a case comes before his Court is really not helped by extending the legal process. In other words, I take it that the meaning of the Section to which this is an amendment is, that the District Justice comes to a decision that the imposition of a certain fine is necessary in connection with an offence which has been committed.

The District Justice may look at it from the legal point of view, and the local point of view. The Executive, when it comes to them, may look at it from the general view of the situation as far as the whole country is concerned. I think it is desirable that they should be in that position. If they consider the case would be sufficiently met by a remission of the fine, they should be in a position to do that without casting any reflection on the decision given by the Justice. It would, therefore, seem to me to create a very awkward position if this amendment were carried. If the Executive wanted to alter a decision they would have to get the recommendation of the Justice who had given that decision. It would be extremely awkward for the Executive to demand from a Justice that he should eat his own words and remit a fine he has imposed. I see no reasonable objection to the Executive being empowered in this case to deal with the matter themselves. I presume in the future we are going to have confidence in the acts of the Executive. To imagine that they are going to misuse the powers they get under the Bill is, I think, to question the whole work the Dáil is going to accomplish in the future, and throw the whole Executive under suspicion, not only in this small matter, but in many other ways. I think it is a power the Executive should have in their own hands, and I say emphatically that the matter in dispute between the Dáil and the Seanad does not justify the Seanad in persisting in an amendment which has been thrown out by the Dáil.

The PRESIDENT

I am very pleased to hear a statement such as that from Deputy Hewat. I was not altogether surprised with the statement made by Deputy Figgis. Deputy Figgis reminded me during his statement of a man to whom you would say: "It is a fine day," but he, having a headache, and probably thinking of the night before, will tell you he had not made up his mind yet about to-day, that last night was not as fine as he wished it to be; always nervous, always looking with suspicion on everybody else, and thinking he was suffering from an injustice from somebody or other. This amendment would be sustainable if there was evidence to warrant its inclusion in the Bill. There is no such evidence, none whatever. The Deputy, when speaking of facts, should tell us what he means by them. They are rather stubborn things, they are not what somebody told you they were. They are the things that are actually in existence. The actual facts in this case are, that there were 188 convictions in the fishery year. There were 87 appeals from the convictions, and of these 87 cases, 14 would not be recommended by the District Justices, and of those recommended a lesser number were remitted. Does that, on the face of it, make a case for the inclusion of this amendment? Does that, on the face of it, give any justification for the holding up of this measure at its most important stage? The Bill did not come into operation during the period of the year when it would have been most useful. We have all these dissertations upon the Constitution, on fine days, and hard cases, and so on, but nothing at all about the business end. If there is a case for the inclusion of this amendment we will not stand against it, but until that case is made for inclusion we must stand against it.

Mr. O'HIGGINS

I have really very little to say on this matter. The President has summarised the facts. Out of 188 convictions there were 87 appeals. Appeals and petitions of that kind are forwarded, as a matter of routine, to the Judge or magistrate who tries the case. In 73 of these cases the Justice who was actually responsible for imposing the penalty recommended a reduction, and only in 64 of the 73 cases was a reduction actually made. So that there is here no question of abuse, no question of excessive use of a particular power. So far from over-riding the Justice or the magistrate who imposed the sentence we actually reduced sentences only in 64 cases, whereas 73 reductions were recommended. I hope that is clear. The only other point I wish to make is this. A side-issue was raised—the question of the right of the Minister for Home Affairs to reduce these penalties at all without reference to the Governor-General. I think Section 11 of the Adaptation of Enactments Act answers that. Certain powers were conferred by statute in the past upon the Lord Lieutenant. Section 11 of the Adaptation of Enactments Act provides that the powers conferred by statute on the Lord Lieutenant should, as from the date of the passing of that Act, be exercised by the particular Minister or member of the Government who seemed most directly concerned, and in the event of any doubt arising as to what Minister should exercise the particular power, the matter should be decided by reference to the President. This power conferred by statute in the past does not, as some people seem to think, descend in any way to the Governor-General. It is not transmitted in any way to the Governor-General. By Section 11 of the Act it is conferred on the particular Minister who seems most directly concerned, in this case the Minister for Home Affairs. These two points are, I hope, rather clear. There was no over-riding of any justice, or any judge, in reducing fines or remitting penalties. So far from that being the case, fines were in fact reduced in a lesser number of cases than was recommended by the District Justices themselves. The other point was that there was no question of any encroachment on anyone's powers under the Constitution. The powers that were exercised in this matter by me, acting on the advice of my officials, were duly and properly exercised under Section 11 of the Adaptation of Enactments Act.

Mr. JOHNSON

The Minister for Home Affairs has hinted at the real matter that is raised on this amendment, and I think we may as well face it. That is, whether the Executive for the time being—and essentially and necessarily a political Executive— should have the right to review, on their own initiative, the decisions of the Courts. I think that is really the issue that is being raised by the second amendment sent down from the Seanad. I find myself torn between two or three conflicting principles. One is a very earnest desire to protect the Courts from interference by the Executive, and to prevent the risk of the Executive, at any time, unduly interfering with the decisions of the courts. Now I see that while claiming that that is the purpose of the Seanad in sending down this amendment a second time, there is something more involved, and I am going to take the risk of saying that they want to raise the position of the Governor-General to that of an Officer of State who has in his keeping the prerogative of mercy. Well, I am not going to do anything to enhance that Officer's position, and in the circumstances of the country and the time, and in view of the general constitutional position that we have attained, and are hoping to attain, I prefer we should clearly recognise that that prerogative is exercised by the Executive for the time being, and that in so far as any other Officer of State nominally exercises that prerogative, it is done on the advice of the Executive Council. If in this Bill, read in conjunction with previous enactments, the Minister for the time being has that prerogative, then I am prepared to take the risk and leave it with him rather than enhance the position, in the State, of the Governor-General.

But the amendment in itself raises the question—and the Attorney-General touched upon it—of the folly of imposing upon magistrates and justices the obligation to impose a minimum sentence. The Seanad, while readily and enthusiastically endorsing that proposal, desires to suggest that any recommendation for the remission of the sentence, which they have been obliged to impose, shall be made at the same time as the penalty is imposed. I have never been able to understand the course of justice when reading reports of Excise cases and smuggling cases, in which I read that a fine of £100 is imposed and remitted to 15s., and a fine of £200 imposed, of which £199 is remitted, and similar follies. Apparently, that view of legal procedure commended itself to the Dáil when they sent this Bill forward to the Seanad, and it also commended itself to the Seanad. But having approved of that method of imposing penalties, they desire to insert an amendment which suggests that recommendations for the reduction of the penalty must be made at the time the sentence is imposed. I am not going to insist in maintaining such a foolish statute, or in re-enacting such a statute, especially when we are led to understand that any value that was expected to be obtained from the passing of this Bill has been lost. We were told on the introduction of the Bill that it was preliminary to a recasting of the code in respect of fishery laws, and that it was required to meet the then existing spawning season, and must be made law before January was out. Well, we are in March now, and I take it that the value of the Bill, such as it was, is passed, and, therefore, not much will be lost by returning the Bill to the Seanad with the intimation that we do not agree with their amendment. Under the circumstances I intend to support the motion of the Minister for Fisheries.

Question: "That the Committee do not agree with the Seanad in this amendment"—put and agreed to.