Private Business. - Agricultural Produce (Cereals) Bill, 1932—Committee (Resumed).
The Dáil went into Committee.
Debate resumed on Question: "That Section 27 stand part of the Bill."
On this section I was dealing with two points. One was the scheme which I had thought of suggesting to the House in order to fit in what I understood is the primary object of this Bill in relation to wheat, that is to get more wheat grown in the country—to get an increasing acreage of wheat in the country from year to year. The scheme I had was not to insist upon that wheat being milled, because if that wheat has got to be milled, it may cause some deterioration in the class of bread we have got to eat, and it may, alternatively, and most certainly will, cause some increase in the price of bread we have got to eat. I was suggesting, instead of this wheat having to be taken by a miller and milled in each year, that he should be allowed to pass with the obligation only of purchasing this wheat, that he might mill it if he so pleased and if he thought it was of good type and was suitable for milling into bread for human consumption. If he did not do that, then he could dispose of it otherwise if he could. I gave certain indications in the latter stage as to what I thought were possible means of disposing of it by offering it to the Minister for sale, by appealing for a bounty, so that the wheat may be exported to another country, by having it held and stored and dried by the Minister, and afterwards given back to him on payment, if he had not the necessary equipment for these purposes himself. If he could not do any or all of these things, then it might be better for him to let a certain amount of it go to waste, or else make it into feeding-stuff of another type rather than mill it into stuff that had to be consumed by humans, and I think still that would be a better scheme. You would always have the stimulus on the man who was purchasing, and who was bound to purchase, that he would have to make the use of it which was most valuable to himself, but it was left to his own option. Should he mix it with wheat that was purchased from abroad, should he make it into a mixture with feeding-stuff of another type, should he attempt to export it, or simply let it go on his hands? There was always the economic drive upon him—which of these things would bring him in the most return for the money he had to spend on the purchase, which was obligatory under the measure.
The other item that was under discussion here was how far Section 27 is going to be workable under the new conditions so definitely outlined for us by the Minister for Agriculture. We are not going to have a discrimination possibly as between wheat which is described as millable wheat or which can be described as such, and the wheat which by implication in omitting that definition has to be looked upon as wheat not suitable for milling. The Minister at one time seemed to indicate that his way out of that difficulty was first simply to decide upon the percentage of Irish wheat which had to be used by the millers, irrespective of whether it was what would pass under the prescription, or under the standard that might be prescribed for millable wheat or not, and there were various objections raised to that. First of all that it would mean, as will appear from later sections, that there was going to be a terrific handicap imposed on the miller because he would have to take what is offered to him, and the repercussions would be that people with good-class wheat might have been holding it at the end of the milling season and the other people would have got away with the sale of wheat of less good quality to a miller who is forced to take something, with consequent deterioration in bread and consequent increase in price. There is a further point which is possibly much the same as that. If it is not possible to determine what is millable wheat, and if the only way out of that difficulty is simply to apportion a certain amount of wheat that has not been purchased in the country and if, in fact, less good wheat happens to be purchased than the better class it will naturally be purchased at a lower price, and under the latter section the rate of subsidy is defined as being the difference between the price actually got in a particular season and a certain sum laid down in the Schedule. If the actual price, because it relates to low grade wheat, is small obviously the subsidy is going to be so much bigger, and for no great purpose. It is going to result, as I said before, in certain wheat which might have found its market being left over, and less good wheat sold at a less price, but with the subsidy having to be paid by the State upon that. I do not take it that the Minister has yet clearly outlined what he is going to do. It seems from yesterday's discussion, the Minister only recently found himself in the difficulty of not being able to get a definition as to what millable wheat is, and was still suffering from the shock of that, and had not made up his mind as to what the alternative plan was. Certainly on the section which deals with the bounty, there must be some explanation given as to how the Minister intends to proceed, because when it comes to a question of payment of a subsidy and when there is no standard of quality above and below which wheat may be graded it is going to be quite impossible for anyone to determine what is the price. If it were possible to get a definition then it is clearly, I think, easy to determine the average price paid for wheat of that quality. If there is to be a mixture, and if we have to take the average over all these, then I say the price would naturally have to fall and the subsidy that would have to be paid by the State would be great.
I would like to say a few words in reply to Deputy McGilligan. I think, of course, his whole difficulty is he is approaching the question from the point of view that millable wheat cannot be grown here. That is the fundamental error upon which all his arguments are based. He is assuming, to begin with, that the wheat grown here will not be millable wheat, and the fact is that the greater part of the wheat grown here will be millable wheat, and that there would be no difficulty whatever about utilising that wheat in growing proportions in the production of flour here. I do not see that any of the administrative difficulties he foreshadows are likely to arise. If the millers report that a sufficient quantity of good wheat is not available to them from within the country to enable them to carry out their obligations under this section, their statements can be checked up by the inspectors of the Department of Agriculture, and if we find that these inspectors agree with the millers, then a Variation Order can be made. Similarly, if the inspectors and instructors of the Department of Agriculture report that more good millable wheat is available than the millers are required to take, their statement can be checked up by the millers, and if agreement is reached, a Variation Order is made. It is not a matter on which I see that any great difficulty can arise, in view of the fact that the Minister has power to vary the Order as circumstances necessitate. The Deputy, however, can estimate that, on the average, 16 cwts. per acre of good millable wheat will be available, and, in fixing the quota on that basis, the Minister will not go very far wrong.
May I point out that the Minister has really not answered the question put up last night and to-day? The fact is that his statement practically gives away the case. Granted that the greater portion may be millable, it is still possible for a large portion in a given season not to be millable. That is what the Minister has not dealt with. He says that if that happens and, if the millers report that they have not got a sufficient quantity to fulfil requirements under the Order made under this section, they can make their case and it can be checked up and if the inspectors of the Department agree, all right, but supposing they disagree, who is to decide?
On what basis; on what advice?
The Minister has not met the case. He says he foresees no difficulty. I quite admit that the Government have shut their eyes to the difficulties involved in this Bill. They say they can vary the Order when a case is put up. Supposing there is, as I say, a conflict between their inspectors, again, who is to decide, when no idea can be given to them from the Department as to what is millable wheat, whether it is millable or not? Supposing there is that conflict of opinion when does the variation of the Order take place; when can it be investigated, and at what period of the year? The preliminary—and at very best, even if you take the Minister's statement, it can only be a preliminary—fixing of the percentage takes place in August. When can a variation of that take place? After representation by the millers? It is not now a question as to whether or not the greater portion of the wheat produced here is or is not millable. Experience alone can decide that. It it is produced in large quantities, a large portion may very easily be unmillable in a certain year, and I say that if the Government approaches it with the refusal to give a definition as they have up to the present, there is very little chance of a satisfactory solution from any point of view. I do not think the Minister has met the case at all.
If the Minister has not met the case, he has, I think, cleared the air a little, because he has declared that practically all the wheat grown here is millable or will I say, anyway, is grindable. The Minister has declared, in other words, that four-fifths of the wheat that will be grown here is millable, and we have got that far on the question of standard, but the standard of millable wheat will be calculated as being equal to four—fifths of the grain that might be grown here in any one year. That is the nearest we have got so far to a definition, and I think it was the definition the Minister had in mind, judging by the speeches of both Ministers. The Minister for Agriculture, yesterday, in speaking about the difficulty of fixing a standard, said, when we suggested that there might possibly be a violent conflict of opinion between the millers themselves, that perhaps it might be said that he wanted a greater amount used than the millers would want to use. That seems to be substantiated to-day by the Minister for Industry and Commerce, because he accused Deputy McGilligan of saying that there was no millable wheat grown in Ireland. Nobody on this side said any such thing.
What we want is a definition of what is millable, and while I am prepared to admit that there might be some trouble in finding a definition, it can be found, and it is all the more desirable that it should be found now in view of the admission of the Minister for Industry and Commerce that there are going to be 16 cwts. of millable wheat to the acre. In other words, four-fifths of the wheat grown here in any average year will be millable. If that is the standard the Ministry have in mind for "millable," all I can say is: "God help the unfortunate industrial and working people."
I want to refer to the position of bakeries situated in the Border towns and I would like to impress on the Minister that they stand in a very different position from the other bakeries in the Free State inasmuch as they have to face the fierce competition of a city like Belfast. I know that there is a tariff on at the moment but that can be negatived if the flour is not up to standard. The bread baked therefrom will not be up to standard and it may so happen that the people living in these towns will still buy the bread from Belfast and from other northern towns at the increased price if it is made of better quality flour. That is an aspect of the situation which should not be lost sight of by the Minister. There is also the danger that certain bakeries in the City of Dublin may be in a position to get the best quality flour from the mills to the detriment of bakeries in towns along the Border. There is such a thing as trade jealousy and I can see the possibility of that happening. That is another aspect of the situation that the Minister should keep before his mind, especially in view of the position the bakeries in the Border towns find themselves in at the moment. The Minister certainly has protected them but there is just the danger that the protection afforded at the moment may be nullified by the fact that the bread baked from this flour—I am not saying it will be bad—may not be of the same high standard as formerly.
I want to stress again this point that has been made. It arises, to my mind, with great importance on this section but with more importance on another. The two sections are, however, tied together. There is a quota business and a subsidy or bounty. The Minister for Agriculture yesterday said, and it has not yet been withdrawn, that he despairs of getting a definition of "millable wheat." We start off from that and, on that, we ask how is the quota going to be determined? There has been an amendment accepted that, in determining the quota, some regard shall be had to the quantity of millable wheat grown in the country. Again, I want to stress that regard therefore is going to be had to something about which the Minister despairs of getting a definition. How it is going to be accomplished, I do not know, and we have not yet been told. The Minister for Industry and Commerce, in an attempted defence of the untenable position, says: "Oh, the inspectors will determine what is millable wheat." If they can determine what is millable wheat, they either have tests for it or they have not, and, if they have not, then, it is only mere guess-work, and, if they have, I do not think it is beyond the capacity of the draftsman to enshrine in words what their tests are likely to be or are going to be. But since we are told that it is impossible to get a definition, I am assuming that the phrase, when used, means that it is impossible to set down tests, so that we get to this point, that there is no test for millable wheat other than guess-work.
The other suggestion made last night was that you were going to determine as millable wheat whatever is milled. There, I think, the question of price comes in. In a later section the Minister has to ascertain it from the sale of home-grown wheat and to issue certificates which, incidentally, are supposed to apply only to millable wheat, but afterwards the section suggests to all wheat milled. The next section says he has to pay everyone who grew that wheat the difference between what the average price is and the amount set out in the schedule. The amount in the schedule is 25/- per barrel of 20 cwts., 1/3 a stone. Supposing that in a particular year that is a subsidy of 3d. a stone, it would mean that the average price likely to be ascertained in that year was 1/- a stone. That would have been for millable wheat, that is to say, wheat of a certain quality, just what the miller can be persuaded to buy. Surely there is a dividing line. If the miller has to buy a large amount he is going to see that he gets full value. But supposing that he could buy anything, any rubbish, stuff, say, that he will give 3d. a stone for, he can throw that aside. It will not be much loss. It is going to be no loss to the grower, because the grower will get the whole difference in the average. It will be likely to be cheap, rubbishy wheat, sold on the standard laid down, and the bill on the community will grow. What check is there going to be on that? We are told that it is on what is milled; what a man lets through his mill. Surely that is no test. There will come a point where, if he wants to get more or less out of the provisions of the Bill, it will pay to buy anything. It is no harm to the grower to take a small price, because he is getting something for what he would really despair of selling at all. By lowering the average for a year he can get an increased subsidy on the amount laid down in the schedule. I have not been able to understand how the price is to be managed. What lever is to be put on the mills to pay the best price?
The very thing you were talking about.
Unless they pay the best price the subsidy is going to be increased. Why should the miller pay the best price?
Supposing he only paid 3d. a stone. There is not going to be a whole lot of Irish wheat in the market in the early days. A small ring will get it arranged, and if the average is beaten down the grower will lose and the miller will gain, because he has paid something less than the best price. The only people who will lose will be the community, first in the subsidy, and secondly by an increase in the price of bread. The price question will arise with more point in a later section. I would like to be told now what really is going to be the standard hereafter. It is not a standard that anyone can quarrel about. If a man can assert his rights, if he feels that he has grown wheat that he thinks is of millable quality, if he can fight that point, get it examined and subjected to analysis, if there is not going to be a definition of that type, there is no standard laid down by which he could demand his rights. It is going, apparently, to be left to the inspectors. The minds of the inspectors in different areas will vary. A certain committee of instructors met and their opinions on millable wheat were as many as there were instructors in the room. Otherwise it will be the other test, just the individual mind of a particular instructor with varying standards throughout the country, without any regard for equal conditions or certainty in price. It will be on the amount bought, and I think is subject to an amount of abuse.
Question put.
The Committee divided: Tá, 63; Níl, 43.
Tá
- Aiken, Frank.
- Allen, Denis.
- Beegan, Patrick.
- Boland, Gerald.
- Boland, Patrick.
- Bourke, Daniel.
- Brady, Bryan.
- Brady, Seán.
- Breathnach, Cormac.
- Breen, Daniel.
- Briscoe, Robert.
- Browne, William Frazer.
- Cleary, Mícheál.
- Colbert, James.
- Cooney, Eamonn.
- Corish, Richard.
- Crowley, Tadhg.
- Curran, Patrick Joseph.
- Derrig, Thomas.
- Everett, James.
- Flinn, Hugo V.
- Flynn, John.
- Flynn, Stephen.
- Fogarty, Andrew.
- Gibbons, Seán.
- Gormley, Francis.
- Gorry, Patrick Joseph.
- Goulding, John.
- Harris, Thomas.
- Hayes, Seán.
- Hogan, Patrick (Clare).
- Humphreys, Francis.
- Jordan, Stephen.
- Kelly, James Patrick.
- Keyes, Raphael Patrick.
- Kilroy, Michael.
- Kissane, Eamonn.
- Lemass, Seán F.
- Little, Patrick John.
- Lynch, James B.
- McEllistrim, Thomas.
- MacEntee, Seán.
- Maguire, Ben.
- Maguire, Conor Alexander.
- Moane, Edward.
- Moylan, Seán.
- Murphy, Patrick Stephen.
- O'Grady, Seán.
- O'Kelly, Seán Thomas.
- O'Reilly, Matthew.
- O'Reilly, Thomas J.
- O'Rourke, Daniel.
- Rice, Edward.
- Ruttledge, Patrick J.
- Ryan, James.
- Ryan, Robert.
- Sexton, Martin.
- Sheehy, Timothy.
- Sheridan, Michael.
- Smith, Patrick.
- Traynor, Oscar.
- Walsh, Richard.
- Ward, Francis C. (Dr.).
Níl
- Anthony, Richard.
- Beckett, James Walter.
- Bennett, George Cecil.
- Blythe, Ernest.
- Bourke, Séamus A.
- Brodrick, Seán.
- Burke, Patrick.
- Coburn, James.
- Collins-O'Driscoll, Mrs. Margt.
- Conlon, Martin.
- Cosgrave, William T.
- Davis, Michael.
- Desmond, William.
- Dillon, James M.
- Dockrell, Henry Morgan.
- Doherty, Eugene.
- Doyle, Peadar Seán.
- Duggan, Edmund John.
- Esmonde, Osmond Grattan.
- O'Shaughnessy, John Joseph.
- O'Sullivan, John Marcus.
- Roddy, Martin.
- Fitzgerald, Desmond.
- Fitzgerald-Kenney, James.
- Good, John.
- Gorey, Denis John.
- Hennigan, John.
- Hogan, Patrick (Galway).
- Keating, John.
- McDonogh, Fred.
- MacEoin, Seán.
- McGilligan, Patrick.
- McMenamin, Daniel.
- Minch, Sydney B.
- Mongan, Joseph W.
- Mulcahy, Richard.
- Nally, Martin.
- O'Connor, Batt.
- O'Higgins, Thomas Francis.
- O'Leary, Daniel.
- O'Mahony, The.
- Thrift, William Edward.
- Wolfe, Jasper Travers.
Tellers:— Tá, Deputies Boland and Allen; Níl, Deputies Duggan and Doyle.
Question declared carried.
SECTION 28.
(1) Where in any preliminary quota period or quota year for a mill in respect of which a milling licence is in force during such period or year there is milled at such mill an amount of wheat which is ten per cent. or more in excess of the quota for such mill in respect of such period or year, the holder of such licence shall at the expiration of such period or year pay to the Minister a sum calculated at the rate of three shillings for every four hundred pounds of wheat milled in excess of such quota and such sum shall be a debt due and payable by such holder to the Minister and may be recovered as a simple contract debt in a court of competent jurisdiction.
(2) In any proceedings by the Minister under this section to recover any sum from the holder of a milling licence the production of a certificate under the seal of the Minister certifying that such sum is due by such person shall beprima facie evidence of the facts so certified.
(3) All moneys recovered by the Minister under this section shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct.
The following amendments, Nos. 64 and 65, were on the Order Paper:
In sub-section (1), line 31, to delete the words "ten per cent. or more."
—(Aire Tionnscail agus Tráchtála.)
In sub-section (1), line 31, to delete the word "ten" and substitute the word "twenty."— (Patrick McGilligan).
The explanation of these amendments was given yesterday in the discussion upon another amendment to a previous section— Section 24. As the Bill stood originally, it was proposed that the fine upon excess production would not apply unless the excess was more than ten per cent. of the quota. We have had various discussions with the millers and they represent that the arrangement contained in the Bill might act to the detriment of the smaller mills, and that if mills were allowed to exceed their quota it would be possible for the larger mills to concentrate on that and put the smaller mills out of business. We accepted that up to the point in excess of the quota, but that the failure to mill up to the quota would not involve any penalty unless the failure involved more than ten per cent. It does not mean any alteration in the principle of the Bill. The position is that each mill will get a quota, and if it does not mill up to that quota, it will suffer no penalty unless the deficiency is more than 10 per cent., but if it exceeds the average then it will come into operation in respect of the total excess. The original arrangement provided for a penalty if the quota was not reached. The alteration will require some slight revision in the actual quota. The scheme is the same except that the new arrangement is, in the opinion of the millers, and in our own opinion, less likely to operate to the detriment of the smaller mills.
On amendment 65 I suggest that the word "twenty" should be substituted for the word "ten". First of all, in the new scheme suggested by the Minister, I do understand that a mill which mills less than its quota by ten per cent. suffers no monetary penalty, but what I want to know is, does it suffer by having the quota reduced in the following year?
The quota will be as previously assigned?
I was going to suggest making a payment of twenty per cent. Is there a yearly mathematical scheme, or otherwise why has the 3/-fine been chosen; and secondly, what is the purpose of this fine? Is it—as I understood was mainly the system in this type of scheme—to allow a mill, which felt, for reasons best apparent to itself, that it was best not to mill but to draw from the pool, and in that way to allow a mill with better capacity and more efficiency, and therefore more likely to give better service to the community, to mill more than its quota and have a profitable business? That was the original scheme inaugurated as a result of discussions with the millers on the other side. That was the reason for it.
If I am to take sub-section (3) as an indication, this is meant to help the weak mills if they decide in a particular area not to mill their quota and to allow it to be milled by somebody else who will pay for it. The fine here does not go to the mill that has failed, if there is one in any particular season. It goes to the Exchequer and, again, I want to know for what purpose. There are two points on which I would like information. First, in regard to the 3/-, is that figure arbitrarily chosen or is there any reason behind it? Secondly, what is the purpose of it? Is it to say to the weak mill: "If you do not like to mill the whole quota, on payment of a certain sum the large mill can do it and you can refrain from milling"?
There is no penalty on a mill which exceeds its quota other than this fine of 3/-. If a mill decides that it can by installing more up-to-date machinery, by a reorganisation of management or some such device, undersell a competitor to the extent of 3/-, then it can do so, but it will have to pay 3/- of a fine on its excess production. It is conceivable that if a rival mill is efficient, it can pay the fine and nevertheless sell flour much better in the area of the inefficient mill. The figure of 3/- was selected because it represents what, after careful examination, we have decided is a fair margin of protection for the small inland mill against the highly capitalised port mill. It would be quite possible for certain organisations operating in this country with large resources deliberately to pay a fine of say, 1/- per sack, on excess production over a long period and during that period put out of existence any particular mill it desired to remove, but it would become less profitable to do that at 3/-. There is some possibility of doing it at 3/- but it would involve more substantial losses and it would require that the attacking mill would be highly efficient and the attacked mill inefficient for the project to succeed. In these circumstances there is no objection to its being done. We think that this device is best suited to the circumstances.
It is true the amount collected by way of fine goes into the Exchequer. It is out of the Exchequer any subsidy will come for mills which because of some particular natural difficulty are in need of it. The pool is the Central Fund and it operates in much the same way as the pool established by the millers for their own purposes. I think the Millers' Mutual Association had a fine of 5/- on excess production and the pool created by the fines was of course available for the subsidisation of the mills unable to sell. We are not proposing to do that. If a mill is so inefficient and makes flour of such bad quality that it cannot get people to buy it and people are prepared to take the margin available from the other mills, that mill will have its quota reduced and will ultimately go out of existence altogether. The fine of 3/- is there to afford it some slight protection but only a slight protection against the competition of the better equipped and more highly capitalised port mills. The scheme is first of all to ensure that we will keep in existence the smaller rural mills. That we consider desirable, in view of the fact that our policy is to encourage wheat growing and also in view of the social need to decentralise industries, to help little rural industries in so far as it is possible to do it, and to curb the tendency of recent years of concentration at the ports. Certain rural mills have advantages and also some disadvantages. The intention is where the disadvantages arise out of causes not within the control of the mills to redress them by the subsidy. If there is another cause it will have to be considered. The idea is to secure that the average mill will be protected against extinction by the port miller so long as it is reasonably efficient and selling at a price which will be regarded as competitive in relation to what the port mill can sell at.
I thought this really was tied up with the subsidy to the inland mills and I am very much in a difficulty now. First of all there is a plan for keeping what are called inland rural mills alive. I have no great sympathy with it at all. If a mill situated at a port, nevertheless can draw wheat from the interior of the country and mill and sell it cheaper than a mill situated in the interior of the country, then I do not see why there should be any penalty on that efficiency. De-centralisation of industry is all very well in its own way. Possibly you can do a good deal by it, but does it mean that you will decentralise branches of the same industry? Why should we have three grinding mills for cement in different areas rather than one in Cork and a mill for something else in Galway? I do not see any system or safety in it. The aim is the preservation, apparently, of the inland mill and the Minister here says that the 3/- is being put on because it is considered that is the protection required for the inland mill. I put down 1/-, founding myself on the Minister's own later clause where with regard to inland mills he ties himself so that no greater subsidy can be given to the inland mill than 1/-.
That has no relation to this obviously. It is 1/- plus 3/-.
Nevertheless, if 4/-were required would not a better division be 2/- each way rather than this method? When I saw that another subsidy was to be given of 1/- per four hundred pounds to the inland mill, I thought that seemed to be the protection that the inland mill required. Now I have got to look at the inland mill section in regard to this. As far as I can make out from the new amendment put down, an inland mill is any mill that is not within five miles of the post office in Dublin, Cork or Limerick. A mill that is situated at Wexford harbour according to that is an inland mill. A mill built on the water's edge at Galway is an inland mill. The only mills really that are not inland mills for the purposes of the Bill are mills within five miles of the post office in the county boroughs of Dublin, Cork or Limerick. Anything else is an inland mill and can be granted a subsidy up to a maximum of 1/- for every 400 lbs. of wheat milled. I am not against the plan of the subsidy, but I think if it is going to be raised in this way there should be some equalisation as between the sum needed for protection and the other sum, or the whole thing might be put under the protective clause. If you want 4/- make it that under the subsidy clause later on in regard to the inland mill. If anybody outside wants to mill, when we are guaranteeing a subsidy, and if he does so efficiently let him get it, though that may mean one mill even producing against another. And see what is the result. It is the same with regard to the whole Bill. The Minister's case is we must fit them into the Bill because they have no means of subsidy.
What I meant to convey was that there was no need to create, under the Bill, a state such as existed under the Millers' Association.
The State is going to give 2/- per 100 lbs.
The amount they pay out will not have the same relation, where a mill did not reach its quota.
It has the same relation to the inland mill. In the inland mill the highest rate that can be given is 1/- per 400 lbs and the highest fine is 2/- per 400 lbs.
The one figure has no relation to the other.
The Minister ties up one with the other. I tried to consider them separately and that is why I put down 1/-. The 1/- will protect the inland, or the port mill, and might be put in. One inland mill can apply everything against another inland mill, though both are receiving a subsidy, which is a peculiar scheme.
Amendment agreed to.
Amendments 65 and 66 not moved.
Question—"That Section 28 as amended stand part of the Bill"—put and agreed to.
SECTION 29.
(1) The Minister may by order make regulations in relation to all or any of the following matters, that is to say:—
(a) the returns to be made by holders of milling licences;
(b) the times at which such returns are to be made;
(c) the forms in which such returns are to be made.
(2) Every person, required by regulations made under this section to make any return, who fails or refuses to make such return in accordance in all respects with such regulations shall be guilty of an offence under this section and shall be liable on summary conviction thereof to the penalties mentioned in Part II of the First Schedule to this Act.
I move amendment 67: In sub-section (2), line 56, to delete the figure "II" and substitute the figure "III."
We had this already on amendment 25.
This applies to a different thing. This is a penalty for a return. The Minister is allowed to make regulations as to the time and forms and returns, yet we are establishing penalties that may include imprisonment.
It must be remembered that failure by the miller to make returns might wreck the whole scheme. It is a serious offence, so why not have a serious penalty?
Why not in Part I? There must be some judgment in the matter.
Amendment, by leave, withdrawn.
Question—"That Section 29 stand part of the Bill"—put and agreed to.
SECTION 30.
(1) It shall be the duty of every person who is the holder of a milling licence in respect of a mill to keep or cause to be kept at such mill the following records in the prescribed form, that is to say:—
(a) in respect of imported wheat brought on to or dealt with at such mill—
(i) a record of all purchases and dispositions of such wheat, and
(ii) a record of the quantity of such wheat milled at such mill into flour and meal respectively, and
(iii) a record of all dispositions of such flour and meal respectively;
(b) in respect of home-grown wheat brought on to or dealt with at such mill—
(i) a record of all purchases and dispositions of such wheat, and
(ii) a record of the quantity of such wheat milled into flour and meal respectively, and
(iii) a record of all dispositions of such flour and meal respectively;
and within twelve hours after the completion of any such purchases, millings, or dispositions to enter in the said records the prescribed particulars thereof.
(2) Every record kept in pursuance of this section may be inspected at any time during office hours by an inspector of the Minister for Industry and Commerce, and it shall be the duty of the person liable under this section to keep such records, to produce for the inspection of such inspector on demand such record and all invoices, consignment notes, receipts, and other documents (including copies thereof where the originals are not available) reasonably demanded by such inspector for the purpose of verifying any entry in or explaining any omission from such record.
(3) If any person—
(a) fails to keep or cause to be kept such record as is required by this section to be kept or caused to be kept by him; or
(b) fails to make or cause to be made in such record within the time fixed by this section any entry required by this section to be made by him therein; or
(c) fails to produce or cause to be produced for inspection by an inspector of the Minister for Industry and Commerce on demand any record, document, or copy of a document which he is required by this section to produce or obstructs any such inspector in the making of such inspection; or
(d) wilfully or negligently makes or causes to be made in such record any entry which is false or misleading in any material particular,
he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to the penalties mentioned in Part I of the First Schedule to this Act.
(4) For the purpose of this section—
(a) inspection of a record or document shall include taking copies thereof or extracts therefrom; and
(b) a demand for inspection of a record or document shall be deemed to have been duly made to the holder of a milling licence if such demand is made verbally at the mill to which such licence relates to any person in the employment of such holder; and
(c) a refusal or failure to produce a record or other document for inspection, if made or committed on the mill by a person in the employment of the holder of a milling licence shall be deemed to have been made or committed by the holder of such milling licence; and
(d) the expression "office hours" means any time between the hours of ten o'clock in the morning and five o'clock in the afternoon during which business is being carried on or work is being done at the mill.
Amendments 68, 74 and 76, in the name of Deputy McGilligan, to be taken together.
68. In sub-section (1), page 13, line 60, after the word "mill," to insert the words "or in some associated premises designated by the holder of the licence for such purpose for a time specified and notified in writing to the Minister."
74. In sub-section (4) (b), line 52, after the word "relates" to insert the words "or in such other associated premises referred to in sub-section (1) of this section."
76. In sub-section (4) (c), line 55, to delete the words "on the mill."
There are a number of amendments which deal with this point. I want to put the matter briefly. The section lays down that "It shall be the duty of every person who is the holder of a milling licence to keep or cause to be kept ... the following records in the prescribed form." Surely a man might have a mill at one place where he did his milling and he might have an office associated with the mill, but not at the mill. Could not the records be kept on premises not immediately at the mill, as long as they are designated for that purpose, and notified to the Minister?
The attitude of those responsible for the administration of the Bill is that it is at the mill they want the records kept. If an inspector visits a mill for the purpose of seeing that the regulations are observed it is there that he would require the records for inspection, and not at an office which might be ten miles away.
He could make an inspection of the records at the office and take excerpts and then go on to the mill to verify them. He has power to enter the mill where the material is milled and to make investigations there. He could inspect the records at the office and take copies of the records. Why should the miller have office premises at the mill if it does not suit him? There can be no subterfuge. The man should be entitled to say: "I am keeping the records for the time being at my office. I keep my material in the mill. I designate where I keep them and if they are not there I am guilty of an offence."
The Deputy is asking that the miller should be allowed to keep his records at some distance from where the milling is carried on. I went into this matter with my advisers. First of all, it would be very little trouble to the miller to have the records kept at the mill, and it would be more convenient for the inspector if that was done. There should be no difficulty for any miller to keep records of the quantity of wheat milled, of the dispositions and in respect of home-grown wheat bought.
Has the Minister considered the record of purchases and dispositions of wheat and what that means? Where are such records normally kept, if not in the office of the miller?
In the majority of cases the office and the mill are one and the same premises.
Where they are, no difficulty will arise. If that is not the case surely these records, if kept as they ought to be kept, would entail a purchase journal and ledgers which must be constantly available, recording the value of the incoming wheat and the dispositions of it. Certainly the purchase journal will. I do not know whether the dispositions will, or how far there will be a record of the dispositions of the wheat, or the value of the wheat when converted into flour.
The record that the wheat was milled and turned into flour is a record of the dispositions of the wheat.
And that ends that, but the Minister will want a record of the purchases. The Minister knows that these records are bulky and awkward things to handle. In many mills premises it would be impossible to keep these records there unless the miller makes a duplicate or carried his records between the mill and the office. He would have in (iii) to make a record of all dispositions of such flour and meal respectively. This would tend to add a very heavy burden to the millers, whereas the burden that Deputy McGilligan's amendment would put upon the inspector would be comparatively light. I do not think it is too much to ask the inspectors to do this work. Surely representations have been made along these lines to the Minister himself. Any man with a knowledge of business will recognise very readily that to conduct the operations necessary under (a) (i), (ii) and (iii) would be impossible. I do not think he will suggest that every mill must transfer all its office work from where it can be more conveniently done down to the mill premises.
There may be some case for an amendment to the section where the offices are not on the mill premises but adjacent to the mill. If, however, the offices were several miles away from the mill it might be a matter of grave inconvenience, and the amendment would permit of that. On the Report Stage I am prepared to introduce an amendment to meet the case of offices not too far away from the mill and still not on the mill premises.
I put this to the Minister, that there is no question here of a surprise investigation. This is merely an examination of records. I quite see that if there was any question of a surprise investigation and that an inspector wanted to make extracts, a warning could be sent to the mill in cases where the offices were not on the mill premises. That does not arise here. Suppose, for instance, that the head offices are in Dublin and the mill is in Collooney. The inspector can go on Monday morning to the offices in Dublin and take all the relevant particulars that he wants out of the mill books and proceed on Tuesday to Collooney to make an inspection of the mill. He would presumably go by motor.
The inconvenience of calling at the head office, where he will have to call in any case in all probability, and of taking the extracts there is trivial compared to the suggestion that millers should reconstruct their whole accounting system in order to make it possible to have the records available at the mill.
In the case of a company that has two or three mills must it have three offices?
There must be separate records for each.
We can discuss this better when we see the Minister's amendment, but if it is going to be limited I think it is not going to be of much use. I am thinking mainly of the case of a miller that I have in mind. He has three or four mills with his head offices in Cork. I can well see that, when making his purchases, this man would not have his mind clear as to the amount of wheat bought at a particular place that is going to be sent to one of those mills more than another. He will dispose of it according as he finds the mills stocked when the stuff arrives. He has then got to follow the disposition of that; to get books kept at his premises showing that a certain amount of it went to A, B or C mill. In the books at A, B and C mills there has to be a record of the stuff coming in until it goes out eventually as flour for sale. That man would naturally, I think, have a full record of his purchases in the books at the head office. The whole disposition of that may be followed, and if any inspections are required at any time, whether a certain amount of the stuff is said to be no longer in transit or is said to be at a particular place for milling purposes, can be settled by a visit to the mill. What the records show can be compared with what the inspector finds on the premises. It is not too much to ask, particularly in the case of a man whose office premises ordinarily are a good distance away from the mill, that every ounce of the stuff is under control and that that should be attended to.
The Minister should also bear in mind that it is becoming more and more the custom of good millers in the country to have certain laboratories attached to their works, but by no means in close proximity to the mill premises. Such things as moisture content are under observation from time to time. There might be a certain amount of wheat in some process of change, either into meal or flour. I do not think there is any certain way of tracing the real disposition, other than sales, except through the head office where the directing mind is. In the case of office premises which are close to the mill premises, I suggest that it would be sufficient for the Minister to ask that in such a case the miller should produce at the mill premises all that he has got there, and that, if required, he might send across in a motor-car for the books in the office premises. The only difficulty that would arise there is where there was a big stretch of country between the head office and the mill, say, between Cork City and some place in North Cork.
The Minister perhaps has not noticed that the inspector, after making his inspection, can call upon the miller to produce all relevant documents, invoices, consignment notes, receipts, etc. How can the miller do that if, in fact, the documents are at the head office? Would it not be much more convenient for the inspector when he is examining or making extracts from the register to ask for the production of the invoices and consignment notes that he wants at the place where they are kept? From the inspector's point of view, I think it would be much more convenient to have all that part of the work done wherever the mill office is rather than at the mill.
Amendment 68, by leave, withdrawn.
I will put down the amendment again for the Report Stage.
Amendments 74 to 76 not moved.
I move amendment 69:—
In sub-section (1), page 14, line 15, to delete the word "twelve" and substitute the word "forty-eight."
I take it it is agreed to substitute the word "twenty-four" for "twelve" in the amendment.
Agreed.
The amendment has been met partly by the Minister, but still I do not think it is too much to ask that the period should be fortyeight hours. The entering of all these records may prove to be a very onerous piece of work, particularly in the case of millers who have not big staffs. As the Minister has gone so far in the case of the last amendment, perhaps he would agree to accept this one.
I have gone as far as safety would permit. It was with considerable reluctance that I agreed to the substitution of "twenty-four" for "twelve." The longer you make the period the greater is the possibility that on some occasion some dishonest miller may avail of the advantage given for the purpose of faking his books for the payment of subsidy not due.
Twenty-four hours might suit if they were office hours. If any of these operations take place, say, at twelve o'clock on a Saturday, in relation to a mill which closes at one o'clock on Saturday, then they have got to be entered up inside that hour. Twenty-four hours might be all right from Monday to Friday, but for a week-end twenty-four hours is far from meeting the case. For the week-end I think it should be twenty-four office hours.
I am afraid that safety would not permit of that. I think it is no hardship on a miller to require him to enter in his books a record of the purchases within twenty-four hours after they take place. I am sure that no good miller would allow twenty-four hours to pass without making the entries.
He might allow two hours on a Saturday afternoon in a case such as I have given, and that would be illegal under this.
I do not want to press the Minister but I want to say that certainly my limited experience in business leads me to believe that if I were called upon to fill up, under heavy penalties, records of the disposition of all flour and meal within 24 hours it would be physically impossible. I would have the particulars in my books but to transfer these particulars into the register would be physically impossible. This would be specially so at certain periods of the year. Take the two weeks before Christmas, and one will appreciate that no miller with his ordinary staff could possibly keep that record up to within 24 hours at that period. If the Minister is going to require something unreasonable like that, he will have much greater difficulty in enforcing the law than he would if he had insisted only under reasonable conditions. If the Minister is to provide in this Bill that that record is to be entered within 24 hours all I can say is that it will not be done and his own inspectors will find it will not be done. They will find with practical experience that it would be at least 48 hours. The Minister himself must realise that with the staff he has in view he cannot have complete records for the business of taking in flour and meal in 24 hours.
I think 24 hours is a quite reasonable period.
The Minister is making the miller carry through in a slack season the amount of staff necessary to meet a peak load in order to get these things done.
Amendment 69 withdrawn.
I move amendment 70.
In sub-section (1), page 14, line 15, to delete the word "twelve" and substitute the word "twenty-four."
Amendment agreed to.
I move amendment 71.
In sub-section (2), line 23, after the word "all" to insert the word "prescribed."
I want these various things prescribed. I do not want the Minister to put down an order prescribing a variety of documents as is done here when the section states "and other documents." If that is done then this House ought to know—there ought to be some publicity given to it. Afterwards all these things form a failure to accord with the law when the law is being established to impose immense penalties, and penalties under Part I of the First Section.
The Deputy is going to make it more difficult for the miller to comply with the law. The miller would commit an offence if he used invoices that are not in the prescribed form.
No. Will the Minister read the section?: "All invoices, consignment notes, receipts and other documents...reasonably demanded by such inspector for the purpose of verifying any entry in, or explaining any omission from such records." The Minister has to bring regulations before this House stating what are the types of documents that the Minister might require to have produced to the inspector.
But they are stated there.
No; "and other documents." These will have to be prescribed to a certain extent by this measure. As long as the section reads "and other documents," anything may be demanded by the inspector.
Anything cannot be demanded.
When the miller is subject to penalties under this Act he ought to know clearly what is demanded of him, but here there is no indication of what is demanded of him.
Documents required for the purpose of "explaining any omission from such records."
Such documents as are demanded by the inspector for that purpose.
It would be open to the inspector to ask for all the correspondence which had passed between the miller and any particular wheat grower for the previous four years.
Yes, if it were necessary to establish the accuracy of the record the inspector should be entitled to do so.
It means this—they come before a court of summary jurisdiction, and the District Justice may say "It does not seem to me that you require all that in order to clear your mind," and the inspector may say "I do require it; I want all that has passed in the last four years between this man and the miller." Is there any protection there at all for the miller? It is very well for the Minister to take all those powers, but it is a different thing to give unlimited powers to the inspector. It is much worse giving unlimited powers to the inspector than to the Minister.
The Deputy must not take it into his head that there are no other reasonable persons in the world. If the inspector is an unreasonable person the Minister will displace him. The inspector will not require these documents unless he has good reason to believe that a fraud is attempted.
That he thinks a fraud is attempted.
A person who believes in the answer the Minister has now given should not bring in any legislation at all. It would be quite sufficient if the Minister were to bring in a Bill here saying that in this matter the Minister may do what he likes. That is always the case with the Minister. He goes too far. Is not all law made——
For purposes of restriction.
——against unreasonable persons. There was never yet a law founded upon the basis that everybody was to be reasonable under it. There is no necessity for a law if you are going to assume that everybody is reasonable. The court before whom such a thing comes cannot decide upon whether the demand was reasonable or not. The only point for the court to consider is—was it demanded? They have to assume that the inspector was reasonable, they must take that assumption and decide accordingly.
Amendment 71 withdrawn.
I move amendment 72:—
In sub-section (3), paragraphs (a), (b) and (c), lines 28, 31 and 34, before the word "fails" to insert the word "wilfully."
I want to insert the word "wilfully" before these three paragraphs in order to show that the failure is not through a misadventure but a failure arising from the fact that a person did it deliberately.
I think the onus of proof should not be on the persons administering the Act. The miller is required by law to keep these records. If he fails it is up to him to prove that there was a reason for his failure. It would be impossible for the person administering the Act to prove that it was wilful because that would imply that he knew what the intentions of the person were.
Then why use the word in the next section—in paragraph (d) (3)?
We have the words "wilfully or negligently makes or causes to be made in such record any entry which is false or misleading in any particular." In these circumstances the onus of proof should be on those prosecuting to show that the entry was false and intended to mislead. That is different from (a) (b) and (c).
The Minister can prove what is in the man's mind in (d) of (3), but not in (a), (b) or (c).
Amendment 72 withdrawn.
I move amendment 73:
In sub-section (3), line 45, to delete the figure "I" and substitute the figure "II."
That and amendment 67 are similar cases.
No. Now because a man has not on his mill premises certain records that he is bound to keep, he may be subject to the heaviest penalties under the whole Act. This is ludicrous.
This is one of the most serious offences. It is not merely a question of what offences are mentioned in the Schedule; it is a question of the relative seriousness of these offences in relation one to the other, and this is one of the most serious that could be committed under the Bill.
It might be well to remember that we have to consider all the time that the Minister and his inspectors are reasonable, but that the millers are not.
The first assumption would be correct, in any case.
Mind you, the signs are not on it.
I would like to have the opinion of a more unprejudiced judge on that matter.
In this section the Minister is laying down the heaviest possible penalty that can be prescribed for a miller who does not satisfy the demands of the reasonable inspectors in the Minister's Department.
Adequate penalties are prescribed for persons who fail to produce or refuse to produce the records required by the Act.
What are the records? Do they include any documents which the inspector may think necessary?
Surely—reasonably demanded.
Why does the Minister say "no" when I ask him if the records required include any document reasonably demanded by the inspector? So far as I can see, the inspector can demand virtually any document on the ground that he needs it to clear his mind with reference to other records referred to in other portions of the Bill. If the miller refuses to produce any document demanded by the inspector he is subject to all those heavy penalties included in the Schedule.
They are the maximum penalties.
And the Minister justifies all that by saying that the most serious misdemeanours that can be committed, can be committed under this section. It now becomes obvious that if a man disobeys the Minister's regulations he becomes liable to a grave penalty and, on the other hand, if he disagrees with the whims of the Minister's inspector he becomes liable to these very heavy penalties mentioned in the Schedule. The Minister may say that no reasonable judge would impose those penalties but, nevertheless, it is clear that any man who runs counter to the whim of one of the Minister's inspectors becomes liable to exceedingly heavy penalties.
We have to go to sub-section (4) to get to the full absurdity of the thing. In paragraph (b) we read "a demand for inspection of a record or document shall be deemed to have been duly made to the holder of a milling licence if such demand is made verbally at the mill ...to any person in the employment of such holder." Let it be noted that the refusal of that demand makes the holder liable to the maximum penalties. It amounts to this, that the inspector may make an application to the yardman, and if there is any failure to produce records or documents the miller can be brought up and the maximum penalties imposed.
I have referred to this matter on several occasions, but I will repeat what I said in the hope that it may sink in this time. The penalties prescribed are maximum penalties. It is possible to have a very serious offence committed under this section. It is possible also to have a trivial offence committed. If the offence is trivial and a person is prosecuted, it is reasonable to assume that the judges will not impose the maximum penalties. But they should have the power to impose heavy penalties for serious offences which might be designed to facilitate frauds on the revenue or to wreck the whole scheme of the Bill.
Perhaps it might be as well for me to mention something also in the hope that it may sink in. In my opinion the Minister always argues too much. Why have any discrimination in the case of maximum penalties? There are three penalties set down by the Minister in the First Schedule of this measure. If the Minister is always going to rely on the reasonableness of the judge, where is the need for any more than one set of penalties? Why not take Part I of the First Schedule, for instance, and adopt that generally? The Minister must have some reason for Parts II and III. Why not leave in an overriding maximum penalty and be content afterwards to rely on the reasonableness of the judge?
To my mind this is what the Minister did: He prepared the section and then said "We must prescribe the penalties contained in Part I of the Schedule in relation to this section," and then he passed on to other sections. The Minister ought to remember that though he may be a very much overworked man——
I have not complained of being a bit overworked.
——there is all the more reason why he should constantly remember that it is his business, if he has three separate penalties, to see that they are allocated to the appropriate offences. It should not simply be the policy to attach one penalty to the whole lot merely because the Minister might think that it was not worth while to put in any other sub-section specifying particular penalties in accordance with the gravity of the misdemeanours that may be committed in contravention of this Act.
If we follow Deputy McGilligan's logic to its obvious conclusion we will have the death penalty for all offences.
It is not my logic, but the logic applicable to the Minisster's statement.
It is merely the logical conclusion of the Minister's attitude.
Amendment 73, by leave, withdrawn.
Amendment 74 not moved.
I beg to move amendment 75:—
In sub-section (4) (b), lines 52 and 53, to delete the words "in the employment of such holder," and substitute the words "charged by the holder with the custody of such document."
As the section stands, a miller might be prosecuted and be made liable to the very severe penalties that we have been discussing if an inspector demands from his yardman or the woman who sweeps out the dust or perhaps scrubs the floor the production of certain documents and fails to get them. If the records demanded are not forthcoming the miller is at once in serious trouble. This is rather a drastic provision. It is a serious thing to make an employer responsible for the action of any of his employees. I think the Minister ought to accept the amendment. If he does not he will be placing the millers in an impossible position. Any miller would be subject to grave penalties if an inspector thought fit to ask any of his employees for records such as are mentioned in this section and failed to get them. The employee might know nothing whatever about the records demanded. The section is obviously a ridiculous one.
The section may be, in the opinion of the Deputy, ridiculous but I would like to remind him that several times during the past ten years he voted for Bills containing precisely the same section. It is the common form of legislation in connection with Bills of this type. The Deputy's suggestion is that the demand should be made on the person charged with the custody of the documents. How is the inspector to know who is charged with the custody of the documents? Supposing the holder of the licence does not appoint anyone to hold the documents? Supposing that person is on holidays in the Riviera? Is the whole Bill to be held up on that account? It is the responsibility of the holder of the licence to have the documents available for inspection. The inspector presumably will be a reasonable man. Assuming he is not and he goes to the yardman, it is quite possible the yardman will refer him to the office. In the office there must be someone in a position to produce the documents. That is the responsibility of the licensed holder and not of the inspector.
The yardman might tell the inspector to go to some place where the Minister would not send him, or he might not. If the words I suggest are not agreeable to the Minister, perhaps he will undertake to put in more suitable words.
I am following a very good precedent. I am accepting the words inserted in every similar piece of legislation adopted by the Deputy's Party.
I am not concerned here with what happened in respect to other Bills. What I am concerned with is this section. It is a section which would impose upon a miller very drastic penalties through no fault of his.
Is there such a provision in the Eggs Act?
Can the Minister give us a definite precedent?
Not at the moment, but there are a number of cases of similar type.
Has the Minister seen any of them?
Would the Minister name any he has seen?
I do not want to be too precise at the moment, but if the Deputy raises the matter again, I shall get a list of them.
The Minister had notice of this by the putting down of the amendment.
I did not think it was seriously meant.
Here we get the contention that it is the duty of the holder of the licence to have the documents available. He might have them available, but if a part-time employee is on the premises and is asked for them the demand is duly made for the documents. That man may not know anything about the records. The miller must inform everybody who is in his employment, either temporarily or permanently, where these records are to be found. The next sub-section states that "a refusal or failure to produce a record or other document for inspection, if made or permitted on the mill, by a person in the employment of the holder of a milling licence, shall be deemed to have been made or committed by the holder of such milling licence." There is no question that the miller must have the documents available. That is perfectly sound. Insist upon that. But to insist that the demand for production can be made on anybody in the holder's employment is ludicrous under the circumstances of this Bill. The Minister has made the objection to the amendment that the person charged with the custody of the document might be on holidays.
Or there might be no such person at all.
That could be met by adding to the reference to the person charged with the custody of the documents "or if there is no such person present, on any person in the employment..."
How is the inspector to know?
It will have to be notified. The person charged can notify. Let us get some amendment that is reasonable. If this suggestion does not meet the situation, it can be amended.
A simple formula could be devised by which the demand would be made on the holder of the licence or some person in charge of the office. Nobody is going to permit yardmen, carters or men dealing with the transport of goods to be in charge of the office.
Does the Deputy think that the inspector is going to the yardmen to look for records?
The office is generally in a corner of the yard. It is quite easy to get a formula to meet the position. I could draft one myself in a few minutes.
The Minister says that nobody is going to be prosecuted but I very much object to becoming liable to prosecution. The average law-abiding citizen prides himself on the fact that he does not ordinarily do things that leave it open to anybody to prosecute him or to bring him before a court of summary jurisdiction on anything like a prima facie case. These provisions are, however, setting pitfalls all over the place. I quite agree that no sane judge would enforce a proviso of this kind. But the average law-abiding citizen objects to being put in the dock. I think that the Minister himself would object to being put in the dock in these circumstances. We ask the Minister so to frame the statute that no person will be put in the dock unless he is deliberately endeavouring to impede the inspector or to make the statute unworkable. In those circumstances, it is quite right that a penalty should be imposed upon him.
If there is not some person marked out for the production of those documents, there may be all sorts of friction between those entrusted with the administration of the Act and the millers. The inspector may go to a number of people—we may leave out the yardmen—and he may not be in the very best of temper. He may be sent about his business. If the Minister hears of the incident, it will be the inspector's side of the story he will hear. Complaints of that kind will become numerous and will lead to friction. Then we shall have more severe penalties imposed than we have heard of up to the present. Under Section 32, the Minister will have power to impose further penalties. There is no trouble in achieving what the Minister professes to aim at—that the records should be available. But to make the employer responsible for all the acts, in this respect, of his employees seems to court friction in the administration of the Act. If the Minister considers the matter calmly— he does not seem inclined to do that at the moment—he will see that there is a great deal to be said for the amendment of the section as it stands. The wording of the amendment may not be the best but the Minister could get an amendment drafted which would achieve the purpose of the amendment on the paper.
The section in the Bill is the result of years of experience. It is the common form and it is necessary to have it in that form to prevent an obvious method of evasion by people who want to escape their responsibilities under the Act.
The provision is so ridiculous that I do not want to say any more about it. The inspector might get off a train, meet a carter from the mill and ask him for these documents. He might not go any further.
If the Deputy had read the Bill, he would see that he would not do that.
Amendment, by leave, withdrawn.
Amendments 76 and 77 not moved.
I move amendment 78.
In sub-section (4), (d), page 14, to delete the said paragraph and substitute the following paragraph:—
(d) the expression "office hours" means——
(i) in relation to any day (not being a Sunday, a bank holiday, or a locally observed holiday or half-holiday), any time between the hours of ten o'clock in the morning and five o'clock in the afternoon during which business is being carried on or work is being done at the mill, and
(ii) in relation to any locally observed half-holiday, any time between the hours of ten o'clock in the morning and one o'clock in the afternoon during which business is being carried on or work is being done at the mill.
This is an elaboration of the definition of "office hours," which is designed to ensure that no misunderstanding will arise. Office hours are defined very precisely.
Amendment agreed to.
Section 30, as amended, ordered to stand part of the Bill.
SECTION 31.
I shall introduce an amendment to give effect to the idea contained in amendment 79. I am not sure that the amendment is in the best form.
There are a large number of amendments to the Bill in my name regarding the production of his authorisation by the inspector. Does the acceptance of the principle of this amendment cover the others?
Some of them. I shall indicate the amendments to which that applies as we reach them.
Amendment 79 not moved.
Section 31 agreed to.
SECTION 32.
(1) The Minister may at any time revoke a milling licence upon the application of the holder of such licence.
(2) The Minister may at any time without any such application revoke a milling licence granted in relation to any mill if—
(a) he is satisfied that such licence was procured by fraud or misrepresentation; or
(b) the business of milling wheat has ceased to be carried on at such mill, or
(c) the holder of such licence has been convicted of an offence under this Act, or (d) if he is satisfied that there has been any breach of any condition of such licence.
(3) Before revoking (otherwise than in accordance with an application in that behalf made under this section) a milling licence, the Minister shall give at least one fortnight's notice in writing to the holder thereof stating his intention so to revoke such licence and the reasons therefor, and shall consider any representations made before the expiration of such notice by such holder and may if he thinks fit cause an inquiry to be held in relation to the matter.
(4) A notice of the Minister's intention to revoke a milling licence may be served by delivering it to the person to whom it is addressed or by sending it by registered post to the person to whom it is addressed at the mill to which such licence relates.
(5) For the purposes of this section the holder of a milling licence shall be construed as meaning the person for the time being lawfully entitled by virtue of this Act to carry on the business of milling wheat at the mill to which such milling licence relates.
I move amendment 80:—
In sub-section (1), line 14, to delete the word "may" and substitute the word "shall."
This amendment is intended to ensure that it will be obligatory on the Minister to revoke a licence if the holder of the licence so requests. I think it is reasonable that a person who wants to give up a licence should be allowed to do so.
Ninety-nine times out of one hundred an application for the revocation of a milling licence by the licensee would be granted. In the hundredth case, it might mean that there would be a shortage of flour in the country over a period if the miller was released from his obligation to mill flour in pursuance of his licence. In that case, some period might have to elapse between the date of the application and the revocation of the licence until an alternative arrangement could be made. A discretion must be retained.
In that hundredth case could not the Minister take over the mill and run it?
He could if he thought it desirable.
If a man wants to have a licence revoked, the non-revocation of which would possibly subject him to penalties if he did not mill his quota in a particular year, he ought to get the revocation.
The Minister might require to keep the mill going until the necessary Vote for the money to purchase the mill had been taken in the Dáil.
Why even wait until that? Is there no other way of getting flour—no way of substituting it?
We can always substitute by importation, if flour is available.
Will the delicate machinery of the Bill be upset by changing this to "shall"?
Deputy McGilligan has a theory that "may" means "shall," and perhaps he will explain it to Deputy O'Sullivan.
Unfortunately, it is not anything that I think in these cases that goes. Is it seriously contended that amendment 80 is not going to be accepted? Is what the Minister has said the only argument?
There must be some element of discretion. In fact "may" does mean "shall" in that case. There is a certain elasticity provided by the word used in the Bill, which is desirable.
Once a flour miller always a flour miller until the Minister lets you off!
When a flour miller gets a licence he has got a valuable concession.
Has he? A lot of them do not think so, and they will think it less after they see this.
They must, judging by the rush of people who want to go into the business.
Amendment, by leave, withdrawn.
I move amendment 81:—
In sub-section (2) (a), line 18, to delete the words "he is satisfied" and substitute the words: "the court has decided."
I want to ensure that before a person's licence can be withdrawn the person should be brought before a court and convicted of fraud or misrepresentation.
Again, what is in the Bill is precisely the same as has been inserted in a number of Bills passed by the Dáil providing for licences of one kind or another. It is the usual form. Any departure from the form would be most undesirable.
The Minister is setting himself up as a court to decide whether a thing is fraud or not.
That argument was first debated here at least five years ago. Certainly, to my knowledge, it was very vigorously debated upon a Bill in 1927.
A licensing Bill relating to fresh meat, or eggs, or butter, or something of that kind. It has been revived upon occasions since. If the Deputy looks it up he will see that that section is taken from Bills introduced by the late Administration.
What is the objection to the Minister letting the ordinary courts decide whether a person is guilty of fraud or not?
Precisely the same objection that Deputy McGilligan had.
I never had a Bill in which that phrase was introduced.
Or your colleague, Deputy Hogan?
Do not take my name in vain.
The Minister cannot give any reason for taking this out of the jurisdiction of the ordinary courts.
There is no use founding arguments upon the Minister's vague statement about other Bills. Let us see the Bill, and get the circumstances in which it was debated. Let us see whether there is any comparison with what is talked of here, and then we will know where we are. Under this, the Minister, whose judgment, as we have observed during the progress of the Bill, is not very sound, is going to be allowed to decide such a question as has occupied the attention of many judges in relation to many measures—the question of fraud and the question of misrepresentation. I suppose there are chapters in all the books written upon contracts which deal with the dividing line between fraud, misrepresentation, and an innocent mistake. But the Minister is going to decide this in a measure as to which both himself and his colleague have decided that they cannot get a formula to define millable wheat. He is going to apply his judgment as to whether or not a man has procured a milling licence by fraud or by misrepresentation. He has not indicated what evidence will be produced with regard to it, who is going to be allowed to plead in the case, or anything like that. The Minister makes up his mind that the licence has to be revoked, and the livelihood of the individual is taken from him because the Minister says he has been guilty of fraud or misrepresentation in procuring a licence.
A citizen has always the right of appeal to the courts on a declaration.
If this were seriously meant, there would be no hesitation whatever in allowing a court to decide it. It is obviously a matter that requires legal skill and the mind of a judicial person to decide whether there has or has not been fraud. It is one of the most elusive things to determine. Misrepresentation is probably not so difficult, but certainly fraud is a very peculiar matter. The cases with reference to it are numerous. That there is any fair judgment possible from a layman in the matter is very hard to believe. As I say, if the Minister decides that a person has been guilty of fraud, the penalty is that he loses his licence and his livelihood.
Can the Minister give a definition of fraud or of misrepresentation, or draw a distinction between misrepresentation and fraud? I know perfectly well that he could not. There is no branch of law so highly technical as drawing the dividing line between misrepresentation and fraud. The Minister should take care to make provision that he will not withdraw a licence until an order of the court has been produced and he will want to distinguish between whether he has been found guilty of fraud or of misrepresentation. If a person is guilty of fraud in my opinion he is not entitled to any licence. When you come to misrepresentation, then you have serious misrepresentation and the mere technical offence of misrepresentation, which is a trivial thing. Anybody in business could be guilty of technical misrepresentation which would bring him within the law. Serious misrepresentation will nullify a contract altogether. This is a responsibility that I would not take upon myself if I were a Minister and I think anybody who has any sense of the gravity of the distinction between the two would not take on the responsibility.
"The Minister" means something more than the individual occupying the office of Minister for Industry and Commerce for the time being. "The Minister" means not merely the individual but the Department, and in that Department he can get all the legal advice he requires on any technical point that may arise. I was just going to say it was a pity Deputy McMenamin's services were not at the disposal of Cumann na nGaedheal when they were the Government. He might have prevented them from doing what I am doing now. This section is taken verbatim from quite a multitude of Bills passed through this Dáil.
None of which you can name.
In all the Bills requiring a licence for the exportation of eggs or meat or butter or any of the other articles subject to licence under the late Government. In any case I want Deputies to appreciate the fact that the Minister is responsible here for everything he does. I adverted to the fact yesterday, that because it was alleged in error that a certain concession granted under the Finance Act shut down Gallaher's factory, there has been public agitation for three months, we have had many debates here, and every attempt has been made to gain political capital out of that for the Party opposite, and to damage the reputation of this Party. Does any Deputy believe that if the Minister withdraws a licence from a flour mill and shuts it down he will not be subjected to the same type of comment?
It means the Minister must be able to justify his action here in every Bill. He cannot revoke a licence at all except the licence was secured by fraud or misrepresentation, except the conditions of the licence were departed from, or except the licensee was convicted by a court of an offence under the Act. These are the only three grounds on which the Minister can decide to withdraw a licence. I am leaving out (b) which does not matter—if for some reason "the business of milling wheat has ceased to be carried on at such mill"— but in the other three cases he must be able to stand public criticism on his action on one or other of these three grounds. He would want to be quite sure of his grounds.
The Minister has just proved how absolutely unfit he is to give a decision of this kind. First of all he referred to the fact that he will get help from his Department. In a case like this the decision must be the Minister's, not only based on the legal advice he can get from his Department. He must be capable of acting in a judicial capacity. He cannot leave a judicial decision of this kind to officials. He may take their advice, but the decision must be his.
Quite. I do not think there is necessarily in the Minister for Industry and Commerce this judicial capacity to give a decision of this kind. The remark he threw in to Deputy McMenamin about the distinction between an egg and an elephant shows that he has no conception of the difficulties that will arise. Far more absurd is the idea that the thing should be thrashed out judicially here in this House. The thing is absurd. The merits of it, from the point of view of employment, can be thrashed out, but not a question on the working of the judicial side of it, which is what the Minister acted on. Everybody knows that this House should not, except in exceptional circumstances, be subjected to matters of that kind. It is not what the House is for. It shows that the Minister has no appreciation of what he is required to do under this particular section. I put the question again, which I put at the beginning: Why is it he takes this out of the ordinary jurisdiction of the court, which is obviously the proper place to determine whether there is fraud or not, whether there is misrepresentation or not, and what is the penalty that ought to follow that? Obviously the court is the place to do it.
For about the nth time the Minister told us that the Minister is responsible for the Bill. If that is so, we could have been spared most of the sections of this Bill. The Minister might have been responsible for everything, and there would be no necessity for any of the sub-sections in it. I, for one, am not satisfied that the Minister is the proper person—or his Department—to determine whether a person is guilty of fraud or misrepresentation. It should be on the decision of the court that a person would be judged guilty or not guilty of fraud or misrepresentation. It is no use for the Minister to answer us in the flippant way in which he replied to Deputy McMenamin about the difference between an egg and an elephant. I might as well ask the Minister what is the difference between a top-hat and a chimney-piece.
It is a mere matter of definition.
The Minister mentioned precedents. He did not name the precedents. Even if there were precedents, even if at some time within the last ten years some Bill has been passed with this section in it, and the Opposition that were did not see it, it only proves that we are a more vigilant Opposition. We see what the Government, who were then the Opposition, did not see. We are a vigilant Opposition. I, for one, am not going to be a party to any person being convicted of fraud or misrepresentation by the Minister or his Department, and I think I will insist at this stage that the court must be the determining factor as to whether a person is guilty or is not guilty.
Did I hear the Minister aright when he said it was purely a matter of interpretation?
Of definition—the difference between an egg and an elephant, yes.
I wish the Minister would make a little journey with me some day to the Law Library at the King's Inns, and I will there show him tomes in plenty, investigating the question of what is fraud and what is not; I will then lead him to another section of the Library, and I will show him tomes just as big which have been written on the question of what is or is not misrepresentation. I fully appreciate that the quality of mind which characterises the Minister places him in a category apart from the Judges and Justices of the Irish Judiciary, but still, much as we appreciate that, a great many of us would prefer to commit our destinies to the hands of the judges and the courts of this country, rather than to the clear and crystal mind of the Minister for Industry and Commerce. I do not know whether there is a precedent or not. It does not matter whether there is or not. If there is a precedent it is a very bad precedent. If there is a precedent it is a precedent for setting the courts of this country at one side, and taking into the hands of the Minister for Industry and Commerce not only the power he denounced other members for taking when he was in Opposition—the power of making the law—but the power of administering the law. Bear in mind that the Minister's defence for this is that he has precedents for it in another Bill. What are they? Another Public Safety Act? This precedent might come in very useful to this Administration or some future Administration. If it did, the Minister for Industry and Commerce might have reason to regret the precedent. I submit to the Minister that the creation of precedents of this kind, interfering with the jurisdiction of the courts, is very dangerous. I will certainly challenge a division on this, and I hope the proposer of the amendment will challenge it.
I would like to say this, that I am prepared to accept evidence of the conversion of the Deputies opposite when they come here with proposals to amend the similar sections in the Dairy Produce Act, the Agricultural Produce (Eggs) Act, the Agricultural Produce (Fresh Meat) Act, and all the other Acts in which that section appeared.
Those are the only three you have got. Stick to them. The Minister's phrase is—if it were required, and I do not think it is required—sufficient proof that he is not fit to carry out the duties imposed on him under the section. If there were nothing but the cheap jackery of his remarks to Deputy McMenamin it would condemn him, and the equally absurd intervention he made—I suppose there is no third-rate music hall that could not produce a better retort —about the difference between an egg and an elephant, and that from a man who has decided that he cannot produce the definition upon which this whole Bill turns. He is going to take a judicial function and, funnily enough, he is going to take the judicial function of determining the very, very narrow matter of fraud or misrepresentation, whereas he leaves it to the court, in paragraph (c), to convict of an offence under the Act. There are certain cases laid down here that are to be offences under the Act. They are to have penalties attached to them that are, so far as the monetary side is concerned, none so bad as deprivation of a man's whole livelihood, and, yet, on a thing that will require great judicial discernment—that of deciding whether a thing is fraud or mispresentation—he takes the matter into his own hands and the penalty is forfeiture of the licence. But the other matter, a matter which is more a matter of fact determination, the offence under the Act, is left to the court and the court has to decide on the penalties. If he is going to be a judge, why should he not be a judge of the easy matters? If he is not capable of being a judge—and the drafting of the section shows that he is not capable of being a judge—of an offence under the Act, why does he become a judge in such a cryptic thing as fraud and misrepresentation?
I venture to suggest that the Minister at this moment could not tell the House what is fraud and what is misrepresentation.
So long as it is one or the other——
The Minister could not decide the difference between either of those two offences and a mistake.
What is fraud? I suggest that the Minister will not define that.
The Minister says that he is protecting himself, but the way to protect himself is to go in and get an order of the court and put it down on the bench, saying: "There is an order of the court in respect of a man who held a licence and who was found guilty by the court. There is my defence": and then sit down. That is all he has to do. I would ask him to arm himself with an order of the court for protection, and nothing else, because nothing else is a defence.
We have now got the point of view that apparently the Minister need not make up his mind as to whether it is fraud or misrepresentation. He can just leave it vague. It is not a question of what a man is guilty of. He will not decide whether he is guilty of fraud, and neither will he decide whether he is guilty of misrepresentation. He is satisfied if, in a vague way, he is guilty of one or the other, but the Minister will not go to the trouble, according to his interjection just now, of judging what he is guilty of. On this matter, I would like to point out to the Minister that one of his interjections was that a person has the remedy of going to the courts open to him. Where is it so far as this is concerned? He put an interjection of this kind in when the debate on the sub-section was going on, but where is that particular remedy as regards what we are now complaining of?
I must have misunderstood the Minister. I thought he said——
I said that any citizen can go to the courts for a declaration at any time.
About whether the Minister is right or wrong?
Not when the Act gives the Minister the right.
Is there an appeal, in other words? This is an important matter, and I would like to know what that means. The Minister convicts the holder of a licence of having procured the licence by fraud or misrepresentation. Is it the Minister's view that before there is revocation of the licence that person has a right to go to the court and get the Minister set aside?
What did the Minister say?
I said that any person can go to the courts and get a declaration from the courts as to the Minister's powers under this section.
That is what we object to. They are too clear.
And observe that a person has no remedy, according to the Bill, in the court, because the sole criterion is that the Minister is satisfied. It is quite sufficient for the Minister to go into the court and say "I am satisfied," and no mandamus will lie against him. The Minister says that a person can go in and get the protection of the court. That is precisely what we are trying to get for him here. If you put that sub-section in the Bill, he has no protection, but if you put in a provision, such as that set out in the amendment, he has every protection the Minister envisages—the protection of the court against the Minister. The Minister cannot penalise him without the authority of the court.
Question—"That the words proposed to be deleted stand"—put.
The Committee divided: Tá, 60; Níl, 43.
Tá
- Aiken, Frank.
- Allen, Denis.
- Beegan, Patrick.
- Boland, Gerald.
- Boland, Patrick.
- Bourke, Daniel.
- Brady, Bryan.
- Breathnach, Cormac.
- Breen, Daniel.
- Briscoe, Robert.
- Browne, William Frazer.
- Cleary, Mícheál.
- Colbert, James.
- Cooney, Eamonn.
- Crowley, Tadhg.
- Curran, Patrick Joseph.
- Keyes, Raphael Patrick.
- Kilroy, Michael.
- Kissane, Eamonn.
- Lemass, Seán F.
- Little, Patrick John.
- Lynch, James B.
- McEllistrim, Thomas.
- MacEntee, Seán.
- Maguire, Ben.
- Maguire, Conor Alexander.
- Moane, Edward.
- Moylan, Seán.
- Murphy, Patrick Stephen.
- Murphy, Timothy Joseph.
- Davin, William.
- Derrig, Thomas.
- Everett, James.
- Flinn, Hugo V.
- Flynn, John.
- Flynn, Stephen.
- Fogarty, Andrew.
- Gibbons, Seán.
- Gormley, Francis.
- Gorry, Patrick Joseph.
- Goulding, John.
- Harris, Thomas.
- Hayes, Seán.
- Humphreys, Francis.
- Kelly, James Patrick.
- Kennedy, Michael Joseph.
- O'Grady, Seán.
- O'Reilly, Matthew.
- O'Rourke, Daniel.
- Rice, Edward.
- Ruttledge, Patrick J.
- Ryan, James.
- Ryan, Robert.
- Sexton, Martin.
- Sheehy, Timothy.
- Sheridan, Michael.
- Smith, Patrick.
- Traynor, Oscar.
- Walsh, Richard.
- Ward, Francis C. (Dr.).
Níl
- Beckett, James Walter.
- Bennett, George Cecil.
- Blythe, Ernest.
- Bourke, Séamus A.
- Brodrick, Seán.
- Burke, Patrick.
- Collins-O'Driscoll, Mrs. Margaret.
- Conlon, Martin.
- Cosgrave, William T.
- Davis, Michael.
- Desmond, William.
- Dillon, James M.
- Dockrell, Henry Morgan.
- Doyle, Peadar Seán.
- Duggan, Edmund John.
- Esmonde, Osmond Grattan.
- Fitzgerald, Desmond.
- Fitzgerald-Kenney, James.
- Good, John.
- Gorey, Denis John.
- Hayes, Michael.
- Hennigan, John.
- Keating, John.
- Keogh, Myles.
- Lynch, Finian.
- McDonogh, Fred.
- MacEoin, Seán.
- McGilligan, Patrick.
- McMenamin, Daniel.
- Minch, Sydney B.
- Mongan, Joseph W.
- Mulcahy, Richard.
- Nally, Martin.
- O'Brien, Eugene P.
- O'Connor, Batt.
- O'Higgins, Thomas Francis.
- O'Leary, Daniel.
- O'Mahony, The.
- O'Shaughnessy, John Joseph.
- O'Sullivan, John Marcus.
- Roddy, Martin.
- Thrift, William Edward.
- Wolfe, Jasper Travers.
Tellers:—Tá: Deputies Boland and Allen; Níl: Deputies Duggan and Doyle.
Amendment declared lost.
I move amendment 82:—
In sub-section (2) (b), line 21, after the word "mill" to insert the words "for an extended period (save where such business has ceased through circumstances outside the control of the holder of such licence)."
I think it would be asking too much to revoke a licence because a mill had ceased to operate for a very short period—days or weeks. There ought to be some protection for the miller. The words suggested in the amendment would provide for an extended period. As the sub-section stands it is rather drastic, as a mill might stop on a Friday evening and might not start again until some time in the following week.
The amendment is not necessary. Paragraph (b) does not state that the milling of wheat has ceased at the mill. It means where the business has ceased. A temporary stoppage of machinery would not mean the cessation of business. The wording means that the mill would have to be out of action for an extended period, due to the fact that the company operating it had gone out of business.
If that is the Minister's reading of the sub-section I am satisfied. It appeared to me, as it might appear to the ordinary layman, that the mere temporary cessation of milling would bring the owner under penalties.
Amendment, by leave, withdrawn.
I move amendment 83:—
In sub-section (2) (c), line 22, to delete all words after the word "convicted" to the end of line 23, and substitute the words "twice of offences under this Part of this Act both of which convictions have resulted in penalties being imposed under Part I of the First Schedule to this Act.
I think it would be rather drastic to revoke a licence because there was a trivial offence.
I propose that the licence should not be revoked unless the holder of the licence shall have been convicted twice, and not for trivial offences either. The penalties are rather drastic—too drastic, in fact—and in this particular instance I think it offers a loop-hole to rather heavily penalise the individual miller.
The power to revoke the licence, if the licensee has been convicted, should be there. It is quite obvious that that power will not be exercised unless for sufficiently grave reasons. The shutting down of a flour mill would be a very serious thing for any Minister to contemplate, and he would need to have a good case to do that. The point made here is merely to get permission to withdraw the licence if the miller has been convicted. It is quite obvious that if it was for some trivial offence, or that there was going to be permanent damage done as a result of the fine, the Minister would hesitate to take such power, but the purport of the section is to give the Minister power to revoke the licence if, in his opinion, the conditions are sufficiently grave to justify such action.
In the various other parts of this Bill and in the First Schedule to the Bill, the Minister has detailed various maximum penalties but, in reality, here he has gone beyond all that and has a new maximum penalty so far as the miller is concerned. The amendment that the Minister refuses to have anything to do with allows him, on a second conviction of a person by a court, of the very many things under this Bill that are to be dealt with or which make a miller liable to incur the penalties mentioned under Part I— that is, the serious offences, as the Minister himself would call them— to take away that person's licence. He refuses to put that in or to give that particular safeguard in legislation, and again everything has to depend on the wisdom of the Minister; and the only remedies open to a person who thinks himself unfairly treated under this sub-section are that the matter can be questioned here in this House. That again, I think, is a most undesirable method of ventilating a grievance of that kind. It means that in order to remedy a matter of that kind the only thing to do is to bring about the defeat of the Executive Council. It is ludicrous from that point of view.
What is the Minister's objection, for instance, to limiting the penalties for offences incurred under Part I? The Minister himself must acknowledge that he has been pretty generous in the way he treated offenders under Part I. Surely the penalties prescribed in the Bill itself are heavy enough, but it does seem absurd that he should have power to inflict the loss of licence if the court thinks that the normal punishment is the punishment under Part II or Part III of the First Schedule. Furthermore, the court, from the evidence before it, would be in a position to judge of the merits or demerits of the case. I think that, if there is any objection to the amendment, it is that it does not give enough power. The Minister should not have power to give that maximum penalty, namely, the loss of livelihood of the miller, unless the court inflicts the maximum penalty. Having heard the case, and approaching it in judicial fashion, the court inflicts the maximum penalty under Part I of this Bill. That would seem a reasonable case for the withdrawal of the means of livelihood, but what the objection of the Minister can be to limiting his discretion to offences for which the penalties mentioned in Part I of the Schedule are prescribed, I do not know. Why he thinks that he must have the power to deprive of a licence those whom even the Bill itself normally would make liable only to the lesser penalties under Part I, Part II and Part III, I fail to see. In reality, the amendment is much better than the Bill as it stands, even to the ordinary person.
Again, I do not think that any useful purpose is to be served by going over again what has been already covered. This section is taken word for word from a number of similar sections. The considerations to which the Deputy has adverted were, I am sure, in the minds of the Executive in the past. The section is designed to give permission for the cancellation of the licence in certain circumstances. That power would only be exercised in extreme cases, but, nevertheless, it is a power that should be there, and the whole operation of the Bill might easily be negatived if that power were not there.
Does the Minister suggest that it would be an extreme case if the miller was guilty only of the offences punishable under Parts II and III?
It is impossible. A person might be charged with that offence and yet be deemed to be worthy of a fine of 5/-. Another person might be found guilty and, under Part II, be liable to six months' imprisonment. That is no criterion by which to judge of the two offences, the nature of which we do not know.
Has the Minister received any representations from the people concerned?
No grounds have previously been covered in relation to this amendment because it is an entirely new amendment. Any arguments used previously about fraud and misrepresentation were specially directed to that. This is where we have got away from the Minister's point with regard to who has power. All that he is asked to speak of is, where a man has been convicted "twice of offences under this Part of this Act, both of which convictions have resulted in penalties being imposed under Part I of the First Schedule to this Act." It is an entirely new proposal, and has not been debated before in the House, and no argument can apply to this, other than the arguments used previously under Sections 26 and 27 of this measure.
Under Section 26 of this measure a man who gets a licence is obliged to mill his quota. He is, under an amendment put down yesterday, obliged to mill 90 per cent. of the wheat that has been assigned to him under the quota. If he fails for two years or for one year to mill that ninety per cent. he can be charged, and can be convicted under Part III of the First Schedule. The moment that happens he can have his licence taken from him. The Minister's answer to that is that it is obvious it will not be. We want to translate "obvious" into "impossible"—that it will not be possible to take the licence from him. That is all that is aimed at. I should like to find out from the Minister how he proposes to square the policy set down here with the line of policy which I understand his Party have adopted with regard to endorsements on other licences, and the abolition of a licence on a certain number of endorsements being put on that licence. I understood that particular type of procedure did not meet with the approval of his Party. Yet here on one conviction, with the minimum penalties, under the least onerous section of the Schedule, the Minister has it in his power to destroy a man's livelihood. Surely it is much more serious to give that power to the Minister than to give to a judge the power, when it seems good to him, to record certain things on a publican's licence and to forfeit that licence after a certain number of endorsements.
If the Deputy knows as much as he pretends about law, he knows that there is no similarity between the two things. There is in one case the automatic cancellation of a licence, following three convictions.
Not automatic can cellation.
In this case there is no cancellation.
Does the Minister know that in the other case it is possible to sell the premises?
To sell premises under a threat of revocation of the licence? He would get no more for it than he would get for the millable wheat.
Amendment, by leave, withdrawn.
I move amendment 84:—
In sub-section (2) (d), line 24, to delete the words "if he is satisfied that".
The Minister may revoke a licence if he is satisfied under this section that there has been any breach of any condition of such licence. I think the words "if he is satisfied" are superfluous and that they should be deleted. It is quite sufficient to say that if there is a breach of the licence, a man's licence may be revoked. I do not think it needs the satisfaction of the Minister to emphasise the fact that there is a breach of the conditions.
The paragraph would be meaningless without these words.
No; a court would have to decide the matter. That is the proper place to have it decided.
We want to have the phrase merely "that there has been any breach of any condition of such licence". It is objectionable that the Minister should have it in his own power to decide that and hence it is suggested that these words be deleted.
It is quite clear so far as the legislation is concerned— that is all we are interested in—that we give power to the Minister not merely to inflict punishments off his own bat without reference to any court, not merely to inflict punishments under Schedule I, but much greater punishments——
What power is given to the Minister to inflict punishments under Schedule 1?
I say we are giving much greater power than that. In the Schedule certain penalties are put down. Now, to the Minister himself, without any court intervening, we are giving much greater powers merely because "he is satisfied" and there is no appeal from that. It is a sufficient answer of the Minister to anybody that the Minister will act. He will swear he has investigated it and that he has come to a decision. That is his answer, and there is no safeguard whatever. Though we may mention maximum penalties, we are giving the Minister, without the intervention of any court, power to inflict much greater penalties.
The amendment suggests that if there is a breach of the conditions, no matter how trivial the breach may be, the licence must be revoked.
No. The decision is left to a court.
Is this what Deputies want? If the court establishes a breach of the conditions, the licence will be revoked, if the court so decides?
Automatic revocation of the licence following the decision of the court?
No, the licence may be revoked.
And the Minister is going to decide that?
He is going to have what we have discussed so much here recently, a prerogative.
He is going to have the decision as to whether the breach of the conditions was so serious as to justify a revocation of the licence. The ultimate decision is made by the Minister.
The Minister has to give two decisions as the Bill stands. He will give only one in the other case.
I submit it is the final one that matters. The Minister has not merely to satisfy himself but to satisfy the House that not merely was there a breach of the conditions, but that it was so serious a breach as to justify the shutting down of the mill.
How can the Minister satisfy the House if the magistrate does not propose to fine the man a shilling bit?
It is a no more serious matter to take away the business of a miller than the business of an egg dealer, a butter factor or a fresh meat exporter.
I cordially agree with the Minister. I quite agree that penalties of that grave character should not be inflicted on the whim of any Minister. I cannot understand the mentality of a Minister of a Fianna Fáil Government who feels that he is bound by precedents created by a Cumann na nGaedheal Government. If the Minister is making that defence to me, I would respectfully assure him that I am not a member of the Cumann na nGaedheal Party and I do not think he is. Therefore, he is not in any way bound by the precedents set up by the Cumann na nGaedheal Party. Of course, the Minister may have such a high opinion of the prudence that characterised the Cumann na nGaedheal Administration that he is quite content to copy their methods, but I suggest that the Minister for Industry and Commerce should improve on the Cumann na nGaedheal policy when he has an opportunity. I make the suggestion to him now in this case that he could steer a more prudent course and set up a better precedent than this one now before him.
The Minister asked us to compare two discretions. There is, firstly, the discretion which now resides in the Minister under the Bill that he may revoke a milling licence if he is satisfied that such licence is procured by fraud or misrepresentation, or if he is satisfied that the holder of such licence has been convicted of an offence under this Act, or if he is satisfied that there has been any breach of the conditions. He asks us that that discretion should be compared with the discretion which would still reside in the Minister to revoke the licence but only after a court has decided that the licence was procured by fraud or misrepresentation or after the court had itself convicted and imposed penalties under Part I or after the court had decided that there was a breach of the licence. The Minister thinks there is no difference in these discretions. It is the Minister's contention as long as the discretion is still with him it does not matter, although there is a material difference in the conditions precedent to the exercise of the discretion.
The Minister is very fond of finding precedents. I have a measure here in which the Minister is given power to revoke a licence granted by him, but he is not allowed to revoke it except in accordance with the section, and the only two things that have any impact upon the licence through the section are (a) an application made to the court, or (b) that the holder of the licence has been convicted of a serious offence under the Act. That was the Control of Manufactures Act which the Minister passed. Why not apply it to this?
Perhaps, now that the Attorney-General is here upon the scene, he will be good enough to furnish the House, through the Minister, with precedents for the Minister taking on judicial functions, and with precedents for the attitude which the Minister is now defending.
I have got now the relevant section from the Agricultural Produce (Eggs) Act, 1924, and I must withdraw what I said that this section is similar to the one in that Act. It is not; it is much more moderate, because in the Eggs Act the Minister can withdraw a licence for a very much larger number of reasons, including this "(d) that there has been any contravention (whether by way of commission or of omission) of this Act or of any regulations made thereunder."
Does not the Minister realise a little difference between the two?
In this case a contravention of the Act must be established in court.
The Minister does not apparently realise any difference between the two. In one case certain necessary punitive steps had to be taken in order to establish a standard of quality for an exportable product. In this case there is no such thing, and the Minister knows it. Millers do not generally require any character from anyone here.
Mr. Ryan
Your Party held them to be inefficient.
That is the very thing we held they were not. We held they were able to do their business and to preserve their industry in the country. Apparently the opinion about the efficiency entirely relates to the Ministry, because it is there, amongst them, from one end to the other. In this case it is obvious that the Minister is called upon to come to a decision, so as to say there has been a breach of the conditions, and secondly that he is qualified by reason of that to annul a licence. It is all on a par with the usual theoretical business comprehension of Ministers over there. If there was a single business man amongst the Ministry this proposal would not be in the Bill.
I remember a time when the Minister for Industry and Commerce used to wrap the green flag round him, and that was the end of the argument. Now I understand his answer to every argument is to wrap the Cumann na nGaedheal flag round him.
I have withdrawn from that position.
I heard him defending himself on the ground that there was a little more stringent provision in the Eggs Act. If the Minister is going, tonight, to defend himself, not by reasoned arguments but by using Cumann na nGaedheal arguments, or Acts passed by them, I am prepared to leave it so. There is no use attacking this Bill if that is to be his defence but if he wishes to defend it, on its merits, some useful purpose might be served if he took up that attitude.
Again I emphasise that I am not concerned with previous Acts even if the Minister for Industry and Commerce is very much so. The Leader of the Opposition has shown that the Minister's analogy is false. The Eggs Act set up a standard of good eggs, as distinct from electioneering eggs. But the standard of quality in this Bill is conspicuous by its absence. It is the missing link in the Bill. What he tries to ensure in this Bill is to put excessive penalties on the millers and others—penalties which nobody could stand behind. The Minister, in his own person, is the court, and he judges beforehand. These are things that no one could stand over, and, I think, the Minister might reasonably accept some of the amendments that are being moved. I think at any rate he might accept this amendment.
I quoted the precedent of the Control of Manufactures Act, 1932. Section 10 of that Act says:
(1) The Minister may at any time alter or revoke a new manufacture licence upon the application of the holder of such licence.
(2) The Minister may at any time without any such application revoke a new manufacture licence if the holder of such licence has been convicted of a serious offence under any section of this Act.
(3) The Minister shall not revoke or alter a new manufacture licence save under and in accord with this section.
I quote that precedent for the Minister.
If I quote a Cumann na nGaedheal precedent in my defence, Deputy McGilligan quotes a Fianna Fáil precedent against me.
It seems to me that the section repeats, almost exactly, the provisions of the Agricultural Produce (Eggs) Act, 1923, referred to by the Minister. If there was a case against this section it surely would be shown, in practice, that this Act had worked injustice and that the vesting of these powers in the Minister had worked unjustly.
I have heard no evidence of it.
Who was it administered it up to date?
Mr. Maguire
The Minister did, but the Minister is not incorporated in the Act. Is it the Deputy's contention that the Act of 1924 was merely to last during the tenure of office of the Deputy when he was Minister?
No; but that the precedent established might be followed.
Mr. Maguire
I have not heard any suggestion made against the Minister for Agriculture that it worked otherwise than fairly.
This means that the Minister can take it upon himself to withdraw the licence. If you were here you would have learned that from the debate.
The Attorney-General missed the point.
I understand the point to be that objection was made to the effect of the section and that it gives the Minister powers that ought to be vested in a court. While in theory I agree with that principle, it seems to me that unless evidence was given that where a similar section has been in operation for a long period of years injustice and hardship has been caused, the case against this particular section has not been made out.
I think the real opposition to this section comes from Deputy McGilligan. It is not so much that these powers are vested in the Minister for Industry and Commerce as that he objects to the particular Party that forms the Ministry. That is a matter that we can settle in the Division Lobby and nowhere else, and Deputy McGilligan knows the result.
Deputy Dillon quoted a precedent that is not quite correct. That precedent dealt only with foreigners, and as this section deals with our own people we must put more stringent powers into the hands of the Minister for Industry and Commerce when dealing with our own people.
The Attorney-General referred to the Eggs Act, and said unless there was thoroughgoing evidence that this worked injustice the case against this provision breaks down. I contend that the provision in the Eggs Act does work injustice. I want to make it clear—I do not know how far any persons had their licences withdrawn by the Department of Agriculture—occasions have repeatedly arisen in which one felt that one had absolutely no defence and could get no protection against the Department of Agriculture's inspectors. They come down, under the Eggs Act regulations, and state that they require such and such a thing done. You say you do not think it necessary that it should be done. They say it is necessary and if you do not comply you commit a breach of the regulations. Therefore you have no protection from the suspension of your licence if the Minister listens to his inspectors. They present a case to the Minister and they tell you the protection that is required. You have no protection and none of the securities you would have if you fought the case if you were prosecuted. I had this experience repeatedly. I know the inspectors of the Department of Agriculture are men representing a very high standard, and are by no means fractious or contentious men, but there was a time when they took one view and I took another. We differed. I know they are acting entirely from a sense of their duty. I do not say that they were unduly fault-finding or vexatious. They were what the Minister would describe as reasonable inspectors, but I think I am entitled before my licence is taken away to the protection of a court. If a verdict was there given against me I would not feel the slightest hardship in complying with the regulations under the Act. I did feel a sense of hardship when I had no appeal against the inspector. Naturally the Minister believes his inspectors, looks upon them as reasonable men with a great variety of experience, and he would say: "This complaint is laid by some crank in some back part of Mayo. The inspectors are reasonable men and that is good enough for me." But I feel I am entitled to challenge the Minister to prosecute me for a breach of the regulations if he thinks I have committed it, and, then, if the issue is tried before an impartial judge, I am quite prepared to accept the judgment. But I do not believe that the Minister himself should have power to inflict the penalty which would result in the taking away of my licence. That is the power that we are now asked to give the Minister and that is a power to which I object.
Under the provision here by which the Minister may revoke a milling licence, granted to any mill, if he is satisfied that there has been any breach of the conditions of such licence.
He has no power to prescribe conditions in relation to this particular section.
He prescribes the powers attaching to the licence.
No power to prescribe new conditions apart from the powers attaching to the licence.
The Minister can put on any conditions when he issues the licence and he can decide whether they are broken or not.
But not to prescribe a variation of the regulations such as Deputy Dillon talks about.
The Minister is defending a principle, that if the Minister himself is satisfied there is a breach of regulations he can withdraw the licence.
A breach of the conditions attaching to the licence at the date of issue.
The Minister can decide to withdraw the licence. The contention here is that he has the right to act as a court. Is not that so? In defence of the Minister's position a paragraph in the Eggs Act was quoted and I pointed out to the Attorney-General that material injustice ensued by the mere fact that a person can be penalised under that paragraph and that there is no right of protection to appeal to a court of law against the Minister.
Amendment, by leave, withdrawn.
I move amendment 85:
In sub-section (3), line 28, to delete the word "fortnight's" and substitute therefor the word "month's."
Amendment agreed to.
I move amendment 86:
In sub-section (3), to delete all words after the word "holder," line 32 to the end of the sub-section.
I propose to delete practically the last two lines of the sub-section which are "and may if he thinks fit cause an inquiry to be held in relation to the matter." I do not think there is any necessity, if the Minister complies with the rest of the sub-section, to have any inquiry, and I think we might relieve him of that necessity by deleting these words.
Has the Deputy reconciled his view with that of Deputy McGilligan? I think we might take Deputy Bennett's amendment and Deputy McGilligan's amendment together.
If amendment 86 falls, amendment 87 cannot be moved.
I would prefer my amendment 87, which reads: In sub-section (3), line 32, after the word "fit" to insert the words "and shall at the holder's request," taken as one method of improving what is here. I would like, also, to have amendment 88 properly considered. If the only inquiry is one to be held when the Minister thinks fit I do not want that. But if an inquiry is going to be held when the Minister thinks fit I think the other party should be able to demand an inquiry. The words we are discussing in the sub-section are that the Minister "may if he thinks fit cause an inquiry to be held in relation to the matter." If the only inquiry, as I have said, is one the Minister thinks fit, then, so far as I am concerned, I do not want it. If he is to have power to call for an inquiry, then I think the other party to the business should be entitled to demand an inquiry; hence, the words in my amendment No. 87 "and shall at the holder's request." If one has a right to demand an inquiry let both have that right. If the holder of the licence has no right to demand an inquiry neither should the Minister. I prefer the words in my amendment to those in Deputy Bennett's.
Between the two I would prefer the case made by Deputy McGilligan embodying the principle that the licensee should pay the cost.
Because if he demands an inquiry by judicial persons then if he is found guilty of fraud or misrepresentation he should bear the cost.
Why should a man have imposed on him the necessity for paying for an inquiry which is brought about by the Minister's action? If the Minister had accepted, instead of the section as it stands, that where a man had been convicted twice of a serious offence that revocation should take place there might be some possibility of having expense imposed upon him, but as the section stands there is no necessity whatever to have expense imposed upon anybody, and a man ought to have the right to demand an inquiry and get it.
But I want it accepted on my argument.
Amendment agreed to.
I move amendment 88:—
At the end of sub-section (3) to add the words "and shall bring before and have passed by each House of the Oireachtas a motion revoking such licence."
There would be no necessity for this bringing of Orders before the two Houses and of laying them on the Table to be subject to annulment if the circumstances under which annulment takes place were possible as regards what is set out in the amendment. But since in the Bill before us the Minister is to be the judge of fraud and misrepresentation, that he is to decide whether there has been a breach of condition, then certainly the House ought to get some opportunity of revising the order. The amendment would not be necessary if the fraud or misrepresentation or the question of a breach of the licence were left to the courts.
This is an amendment that could not be accepted. The Minister is responsible to the House and it is open to any Deputy to put down a motion of censure on the Minister for revoking a licence. The Deputy argued earlier that that would be tantamount to a vote of censure on the Executive Council and consequently would be regarded as a matter in which the Party majority would operate. The same thing applies in this case. The bringing of a motion for the revocation of a licence before the House would be a purely automatic matter, as the Minister would have to be in a position to justify his action.
But the main thing is that it would bring him before the House.
Amendment, by leave, withdrawn.
I move amendment 89:—
In sub-section (4), line 35, after the word "by" to insert the words "a member of the Gárda Síochána."
There is no provision in the section as to how the delivery is to be made.
Delivered to the person to whom it is addressed.
The Minister or his agent.
The section does not say that. So far as I can make out, this thing is to be delivered by not delivering it. It is vital in this case that the notice should be delivered by some one in authority. Otherwise, how is the miller to know but that some anonymous person is serving a notice upon him. This amendment is introduced for the protection of the miller and for the protection of the Minister, too. The portion of the sub-section dealing with the serving of the notice by registered post is all right, but the other is not. It does not say that the notice is to be served by a civil bill officer or by an inspector of the Minister. As I have said, there is neither protection for the Minister nor for the miller.
Does the Minister intend to have this done by an inspector or by registered post?
By an inspector. Circumstances may arise in which it would have to be done by registered post.
Is the Minister's idea of delivery delivery by an inspector?
Then why not say so in the section?
Circumstances may arise in which it would be delivered in the offices of the Department of Industry and Commerce following discussion upon various points. It seems to me that as long as the notice is the proper notice, and as long as it is delivered to the person to whom it should be delivered, it is not necessary to specify rigidly that it must be delivered by a certain individual. I would be against having it delivered by a Civic Guard.
Why not put in "delivery by an inspector?" As the section reads it might mean delivery by ordinary letter post.
It is meant to mean hand delivery by an agent of the Minister, but not necessarily an inspector under the Bill.
What other agent would the Minister have?
An officer of the Department.
When documents are being delivered under Act of Parliament you must prescribe the mode of service. That must be made clear. If the service is not by the mode prescribed then it is not a good service. That is the position with regard to the service of documents under the courts, of civil bills and ordinary processes. In addition there has to be an endorsement of the service. Otherwise a man can go to the court and say that he did not get delivery of the notice.
Will the Minister define the word "delivery" on the Report Stage?
I will examine the point to see if it is necessary.
Examine it to see if there is any necessity to have any limitation of words to carry out delivery either by registered letter or by hand by an authorised agent of the Minister. I think the Minister should look into both points.
This is exactly as it is in other Acts. It does not mention how it is to be delivered.
This is the flag again. The Minister for Industry and Commerce and the Attorney-General have now wrapped the Cumann na nGaedheal flag around them. Why will not the Minister for Agriculture do the same, and then we will have the trio?
In providing for the service of documents you do not specify who is to deliver.
If you want to limit it to certain people you have got to so limit it, and the Minister says that he wants it limited.
Amendment, by leave, withdrawn.
Question proposed: That Section 32 stand part of the Bill.
On Section 32 itself, I will ask the House to divide, and I am not sure that there is not something to be said on it before we divide.
I think the section has been already very fully discussed and enough has been said on it.
Yes. I think all the points have been covered.
Question—"That Section 32, as amended stand part of the Bill"—put.
The Committee divided: Tá: 60; Níl: 42.
Tá
- Allen, Denis.
- Beegan, Patrick.
- Boland, Gerald.
- Boland, Patrick.
- Bourke, Daniel.
- Brady, Bryan.
- Breathnach, Cormac.
- Briscoe, Robert.
- Browne, William Frazer.
- Colbert, James.
- Cooney, Eamonn.
- Corish, Richard.
- Crowley, Tadhg.
- Curran, Patrick Joseph.
- Davin, William.
- Derrig, Thomas.
- Everett, James.
- Flinn, Hugo V.
- Flynn, John.
- Flynn, Stephen.
- Fogarty, Andrew.
- Gibbons, Séan.
- Gormley, Francis.
- Gorry, Patrick Joseph.
- Goulding, John.
- Harris, Thomas.
- Humphreys, Francis.
- Kelly, James Patrick.
- Kennedy, Michael Joseph.
- Keyes, Raphael Patrick.
- Kilroy, Michael.
- Kissane, Eamonn.
- Lemass, Séan F.
- Little, Patrick John.
- Lynch, James B.
- McEllistrim, Thomas.
- MacEntee, Séan.
- Maguire, Ben
- Maguire, Conor Alexander.
- Moane, Edward.
- Moylan, Séan.
- Murphy, Patrick Stephen.
- Murphy, Timothy Joseph.
- Norton, William.
- O'Grady, Séan.
- O'Kelly, Séan Thomas.
- O'Reilly, Matthew.
- O'Reilly, Thomas J.
- O'Rourke, Daniel.
- Rice, Edward.
- Ruttledge, Patrick J.
- Ryan, James.
- Ryan, Robert.
- Sexton, Martin.
- Sheehy, Timothy.
- Sheridan, Michael.
- Smith, Patrick.
- Traynor, Oscar.
- Walsh, Richard.
- Ward, Francis C. (Dr.).
Níl
- Beckett, James Walter.
- Bennett, George Cecil.
- Blythe, Ernest.
- Bourke, Séamus A.
- Burke, Patrick.
- Collins-O'Driscoll, Mrs. Margaret.
- Conlon, Martin.
- Cosgrave, William T.
- Davis, Michael.
- Desmond, William.
- Dillon, James M.
- Dockrell, Henry Morgan.
- Doherty, Eugene.
- Doyle, Peadar Séan.
- Esmonde, Osmond Grattan.
- Fitzgerald, Desmond.
- Fitzgerald-Kenney, James.
- Good, John.
- Gorey, Denis John.
- Hayes, Michael.
- Hennigan, John.
- Keating, John.
- Keogh, Myles.
- Lynch, Finian.
- McDonogh, Fred.
- McGilligan, Patrick.
- McMenamin, Daniel.
- Minch, Sydney B.
- Mongan, Joseph W.
- Mulcahy, Richard.
- Murphy, James Edward.
- Nally, Martin.
- O'Brien, Eugene P.
- O'Connor, Batt.
- O'Higgins, Thomas Francis.
- O'Leary, Daniel.
- O'Mahony, The.
- O'Shaughnessy, John Joseph.
- O'Sullivan, John Marcus.
- Roddy, Martin.
- Thrift, William Edward.
- Wolfe, Jasper Travers.
Tellers:—Tá: Deputies G. Boland and Allen; Níl: Deputies Bennett and Doyle.
Motion declared carried.
SECTION 33.
Amendment 90.
In sub-section (5), line 8, after the word "by" to insert the words "a member of the Gárda Síochána." (Daniel McMenamin.)
Amendment, by leave, withdrawn.
Section 33 agreed to.
SECTION 34.
(1) The Minister, after consultation with the Minister for Agriculture, may, if he so thinks fit, grant to any person (other than a licensed miller) a permit (in this section referred to as a milling (home-grown wheat) permit) to mill home-grown wheat at a specified mill.
(2) Every milling (home-grown wheat) permit shall—
(a) be in the prescribed form, and
(b) be expressed and operate to authorise the person to whom such permit is granted to carry on the business of milling home-grown wheat at the mill specified in such permit,
(c) be and be expressed to be granted subject to such conditions (including conditions as to revocation) as the Minister thinks proper and inserts in such permit.
(3) If any person to whom a milling (home-grown wheat) permit is granted fails to comply with the conditions subject to which such permit was granted, such person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to the penalties mentioned in Part III of the First Schedule to this Act.
Amendments 91 and 92 are in my name:
In sub-section (1), line 13, to delete the words "if he so thinks fit" and substitute the words "in accordance with regulations to be prescribed."
In sub-section (2), (c), to delete all words after the word "conditions" where it first occurs in line 24 to the end of the sub-section and substitute the words "as may be prescribed and are inserted in such permit."
The amendments deal with the old points about getting these things prescribed and brought before the House.
Is the Deputy anxious to press the amendments, or would he prefer to withdraw them?
In the circumstances, I have no objection to withdrawing them.
Amendments, by leave, withdrawn.
As regards the section, why insert the words "(including conditions as to revocation)" in paragraph (c)? Does it mean that there can be special conditions with regard to revocation?
This has relation to the conditions prescribed in the circumstances under which the licence would be revoked.
Sections 34 and 35 agreed to.
SECTION 36.
(1) For the purposes of this Part of this Act every mill (other than a mill which is situate within ten miles from the principal or only post office in the county boroughs of Dublin, Cork or Limerick or an appointed port area) shall be an inland mill.
(2) The Minister for Industry and Commerce may be order under this sub-section declare any port area to be an appointed port area and whenever any such order is made the port area to which such order relates shall, so long as such order remains in force, be an appointed port area for the purposes of this section.
(3) The Minister for Industry and Commerce may by order under this sub-section revoke an order under the immediately preceding sub-section.
(4) For the purposes of this section each of the following shall be a port area, that is to say:—
(a) the county borough of Waterford:
(b) any urban district, town or village situate on the sea.
(5) Every order made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution is passed by either House of the Oireachtas within the next subsequent twenty-one days on which that House has sat annulling such order, such order shall be annulled accordingly but without prejudice to the validity of anything previously done under such order.
Amendments to Section 36:—
In sub-section (1), line 37, to delete the word "ten" and substitute the word "five."—Aire Tionnscail agus Tráchtála.
In sub-section (1), line 37, to delete the word "ten" and substitute the word "seven."—Deputy Curran.
In sub-section (1) to delete the words "or only," line 38, and the words "or an appointed port area," in line 39 and also to delete sub-sections (2), (3), (4) and (5).— Aire Tionnscail agus Tráchtála.
In sub-section (4), line 50, to delete the word "a" and substitute the words "an appointed."—Deputy McGilligan.
I think it would be well to take all the amendments to this section together. I want to make a statement concerning this whole matter of subsidies for wheat in port and inland mills. When we were phrasing the Bill originally, it was intended that we would pay a small subsidy to inland mills for a limited period in order to redress what we considered to be the disadvantages which these mills laboured under as compared with port mills. That intention was based on the information then available. Since the Bill was framed I had an opportunity of going into this matter with much greater care and with much greater information than had previously been obtainable. I have come to the conclusion that, with the possible exception of certain peculiar cases, a subsidy for inland mills is not necessary.
I found it impossible to get from flour millers, as such, any precise statement as to what were the advantages or disadvantages, if any, of inland mills. I found some inland millers took the line that it would not be possible for them to complete successfully with the port mills without a subsidy, whereas other inland millers took a completely contrary view and, in fact, stated they did not want a subsidy under any circumstances. They said that they did not consider a subsidy was required to enable them to maintain their position, if certain disadvantages were overcome.
Did they know about Deputy Norton's amendment which the Minister accepted last night?
I do not think that alters the position in the slightest.
The millers do not think so.
Our proposal, therefore, is to amend this part of the Bill so as to make it clear that it will enable a subsidy to be provided if, in particular cases, the conditions would seem to warrant that. At one time I considered the deletion of this part of the Bill, but on examination it did appear that there might be cases where, because of natural disadvantages, it might be necessary for a period to provide some assistance from the Central Fund to enable mills to be carried on, and flour to be sold at a price comparable with the price at which flour would be sold in other parts of the country. That decision was easier to arrive at in view of the fact that there might be secured from the Bill certain revenues which would probably be sufficient to offset any subsidies which it might be decided to pay.
It is possible that in the case of some of the silent mills a subsidy for a short period might be necessary in order to get them reopened. In particular parts of the country, for example where the existence of a flour mill would be advantageous from the point of view of the cost of living in the district and from the point of view of those engaged in the bakery industry in the district, such a mill could be re-established, despite the fact that natural disadvantages, such as the absence of a port into which vessels of a reasonable size could go, might exist.
If the various amendments which I suggest are embodied in this part of the Bill it will enable subsidies to be paid after the Minister for Finance has made an order and subject to the necessary money being voted by the Oireachtas. In each case the proposal would have to come before the Dáil and be approved and then money would be provided for the purpose. I want it to be clearly understood that it is not intended generally to provide subsidies. There will be no general subsidy for inland mills. Any subsidy which will be provided for a mill will be limited in amount and strictly limited in point of time. It is in relation to this statement that I would like these amendments considered.
In amendment 93 I propose to delete the word "ten" and substitute the word "five." I do not know if there is any substantial difference made by that change, but it is conceivable that a mill may be established within the limit suggested, and the scheme of the Bill is merely to ensure that a subsidy cannot be provided, no matter what the circumstances are, in respect of a mill in Dublin, Cork or Limerick, and by far the greater part of the milling capacity of the country is situated in these three centres. I am not inclined to press this particular amendment if there is any very strong objection taken to it; but I think it is one which should be carried because the advantages or disadvantages which might exist within ten miles might also exist within eight miles of any of these ports. Consequently, I think that provision should be made for it. The other amendments I shall deal with when the time comes. They are all designed to effect that change in this part of the Bill to which I have referred.
Can the Minister tell us where, in the amendment or in the Bill, there is any provision which necessitates a special Vote being passed by the Dáil before a subsidy is granted to an inland mill?
There is no money provided in the Bill. There is another section which refers to that matter.
Section 38 says: "The Minister may... out of moneys provided by the Oireachtas pay... subsidies at the appropriate rate."
That is the section I was looking for.
Has not the Oireachtas provided moneys which covered all the purposes of the Bill in the Financial Resolution which preceded this?
To an extent that is so but money will have to be provided by annual Vote here. That is the intention.
There would be, in other words, a Vote appearing annually on the Estimates for moneys to carry out the Cereals Act. The Minister spoke as if there was a distinction being made between subsidies to be provided for inland mills and any other part of the Act. That is not so.
So far as I can understand these amendments, they come to this—that we want to have wheat milled rurally and the distinction we now have under the amendment to 36 (1) is that everything is considered rural except places which are within five miles of the main Post Office in Dublin, Cork or Limerick. Every other place is rural, or inland, for the purpose of this Act. Is not that so?
And that is the situation at present.
The situation at present is that every part of this country is inland except those parts within five miles of the principal Post Offices of Dublin, Cork or Limerick? I did not know that.
Let me read the definition as it is going to be:—
"For the purposes of this Part of this Act, every mill (other than a mill which is situate within five miles from the principal Post Office in the county boroughs of Dublin, Cork or Limerick) shall be an inland mill."
That is what we start off with. Shall we not, in fact, have dropped the distinction between inland mills and port mills when we incorporate the amendment? Is not the distinction founded on something else—probably the capacity of the mills within five miles of the principal Post Offices of Dublin, Cork and Limerick? Why not say so? We shall have got this section considerably readjusted by amendments and why keep this old idea of the distinction between inland mills and port mills? We are in the peculiar position that even a mill on the water-edge at Galway, Wexford or Waterford is an inland mill, but a mill which is almost five miles away from the Post Office in Limerick is a port mill. That is not a very logical distinction and keeping the old phrase seems to me rather to cloud for the future the point of discrimination. What that is has not been explained to us yet.
I do not want to raise the question of the whole purpose of this section. It was, apparently, to have milling decentralised. Why should you ask for milling to be decentralised if a mill situate on the water-edge, say, in Limerick, can, nevertheless, in competition, collect wheat milled inland from the hinterland around the port of Limerick, and sell the product more cheaply than the others? Have we a sort of constituency idea and do we want to have a mill per constituency so that Deputies, other than University Deputies, can go down to their constituencies and tell the people what they did for them with regard to milling? But what is the point of discrimination? If it is to be the capacity of the mill, why not determine it here and say that a mill of less than a certain sackage capacity may get a subsidy and mills above that capacity cannot and so drive people to build—if they are going to build in the future—mills of the limited and smaller type that will be required if they are to be spread all over the country? The section was better as it stood in so far as it did allow for some better differentiation as between inland mills and port mills. It would have been difficult, I think, to have got a mill in the county borough of Waterford or in an urban district, town or village situate on the sea determined to be an inland mill. Under the new scheme, those are definitely declared to be inland mills for the purpose of receiving subsidies. The idea does not commend itself to me but it is in the Bill and I suppose it is going to be pushed through. I do not know that the amendments, other than the one I referred to—No. 93— make any great difference. I do not think that they improve the measure in the slightest. I did not gather from the Minister's explanation that any difference is made by the amendments on the point of finance.
Is there any difference made by the amendments—except that they may be better phrased —in the matter of the subsidy being a general rate or a special rate for special areas?
It is only a matter of re-phrasing the same idea?
The Bill, as it stands, would do but its form pre-supposed a general subsidy for inland mills. The purpose of the amendment is merely to alter the form. Certain of my advisers argued that it would be better to leave the section as it stands and not go to the trouble of amending it. In view of previous statements and the form of the Bill on Second Reading, I thought it better that I should make clear that no such supposition was to be drawn from the form of the Bill. It is definitely intended that only in very rare and extreme cases will subsidies be provided at all.
That is more satisfactory, even though it is only a presumption. On the Minister's statement, the presumption is against subsidies being granted. As a result of amendment 93, Deputies who are interested in inland mills and who thought that inland mills, under this provision, might get a subsidy as against what we used to hear described as "the more favourably situated port mills," must realise that differentiation at the moment is between mills situate at Dublin, Cork or Limerick and all other mills and it is pre-supposed that these "all other mills" will not get any subsidy whatever. The presumption is generally in favour of a general rate, so that, if there is any rate struck, all will get it or none will get it.
I should have no objection to including the Port of Waterford in this but, in fact, there is no milling at Waterford at present and something more than 80 per cent. of the milling capacity is concentrated in the three centres mentioned. Any subsidy given would be limited to mills of certain maximum capacity or mills situate in a certain area. It would be exceedingly limited in amount and limited in point of time.
I appeal to the Minister to withdraw the amendment. In my opinion, the men engaged in the port mills are receiving a higher wage than the men who would be employed in inland mills. The amendment would mean that certain benefits would be given to certain mills against the interest of the workers engaged in the port mills. It will have an effect on the workers because it may possibly reduce the rate of wages paid in the port mills to the rate paid in inland mills.
I would prefer to leave it as it is. I am explaining to the Deputy that what he anticipates is not going to arise as, in fact, in the circumstances which he describes, no subsidy will be payable. It is definitely our intention not to do so. It is conceivable, however, that circumstances may arise at some time in the future in relation to another mill adjacent, say, to Limerick or Cork to which this would apply.
What will be the position of men who are already receiving a high rate of wages, as the mill in which they are working may be in competition with another mill not paying near the same rate of wages?
I take it the amendment accepted from Deputy Norton will regulate that position.
The men in the port mills are paid on a certain capacity and other mills may not have the same capacity. Therefore, it will have an effect on the high rate of wages paid in the port mills. I appeal to the Minister to withdraw this and the matter can be brought up on the Report Stage.
We have already inserted in the Bill an amendment moved by Deputy Norton which requires that the rate of wages paid in any mill will be the generally recognised rate for workers doing the same class of work in licensed mills. It seems to me that that meets the Deputy's contention. It is now part of the Bill and, consequently, there need be no such fear arising out of the acceptance of this amendment.
I do not want to interfere in this, because I was against Deputy Norton's amendment without the explanation that I requested, and I did not get the explanation. I should like to point out to Deputy Everett that I did ask whether the amendment down in Deputy's Norton name allowed for different rates of wages to be paid in different localities, and the only answer I could get was that the arrangements were those which have been made between the trade unions representing the men and the employers, and if these permitted of different rates for different localities, then they were there, but if they did not, then they could not come. I got no answer, either from the Minister or Deputy Norton, as to whether, in fact, the arrangements referred to did permit of a variation between locality and locality. That has still to be determined.
The position, as I understand it, under Deputy Norton's amendment is that we are to have in the mills what we have on the railways at present under which a railway porter in Dublin and a railway porter in Skibbereen get exactly the same rate of wages.
I do not think that is right.
I think the Minister will find that it is so. There may be a difference as regards years of service, but, as regards other factors, I think he will find it is so. I shall be glad if he will inquire. That is the intention.
That is not so. It is neither the case at present nor is it in the amendment.
Let the Minister read the amendment. It is the intention that it should be a flat rate. I was sorry last night that the Minister jumped at it so quickly before he had the explanation or the information he had later on in the debate. I think if he waited for a little while he would not have been so anxious to accept it. That is the intention, and Deputy Norton did not deny it. That is the position at the present moment. Of course, we may have this up for consideration on the Report Stage, but, as it stands at present, it is a flat rate, and the mill in Deputy Everett's constituency that may be some distance inland, or on the borders of it, will be called upon to pay the same wages as a port mill, and the result will be that the port mill will get all the business because it will be able to do it at a cheaper rate.
Deputy Everett is afraid that it will not happen.
There is no fear of it happening because the trade unions will always consider the rate of wages paid in an area. You cannot compel mills in other areas to pay the same rate as is paid in Dublin. I am dealing with mills in County Dublin that may get an unfair advantage over mills at the Port of Dublin by reason of paying low wages. If I am assured that mills in County Dublin will pay the same rate of wages, then I am prepared to accept the amendment. What I want is that workers who will be engaged in certain mills in County Dublin will not be paid less wages than the men are paid at present at the port mills in Dublin.
That cannot arise out of this amendment. It definitely cannot, and it is our intention that it will not arise in any event, because the general scheme has been altered and, as I said, subsidies will only be paid in relation particularly to small mills situated in particular districts where very abnormal and unusual circumstances are operating.
Then I will be looking for a subsidy for mills in my constituency.
There is no fear of the high rate of wages spoken of by Deputy Good prevailing in that area. I want wages in Dublin to be all at the same rate. I do not want men working a few miles from the Port of Dublin to be paid the same rate of wages as is paid in country districts, because the mills there will have the advantage of being near the Port, although the mill I have in mind would only get a similar subsidy and might be a hundred miles from the Port of Dublin.
What the Deputy wants is a differential rate of wages and I am quite with him in that. I should like to have the Minister with us and I hope he will be with us, otherwise he will shut up half the mills in the country.
Is it only mills which are not now working and new mills which may be started in the future that will get the subsidy? I think any subsidy given should come before the Dáil for ratification.
I should like to be able to say that there will be no subsidy at all, and Deputies may take it that that is the general inclination and the motive which will be behind the policy. There may, however, be exceptional cases of mills so situated, or under such initial difficulty, that it is no harm to have power to pay a subsidy. As I said, the amount of the subsidy will require to be voted annually by the Dáil and the matter will be discussed here.
Amendment put and agreed to.
Amendment 94 not moved.
The following amendment was agreed to:—
95. In sub-section (1) to delete the words "or only," line 38, and the words "or an appointed port area," in line 39 and also to delete sub-sections (2), (3), (4) and (5).—(Minister for Industry and Commerce).
Amendment 96 not moved.
Section 36, as amended, agreed to.
SECTION 37.
(1) For the purpose of determining the rate of subsidy to be paid under this Part of this Act on wheat milled at inland mills, the Minister for Finance may from time to time, after consultation with the Minister, by order under this sub-section do one or other of the following things that is to say:—
(a) fix by reference to weight, subject to the provisions of this section, a general rate;
(b) divide for the purposes of such order Saorstát Eireann into such and so many districts as he thinks proper and, fix by reference to weight, subject to the provisions of this section, separate, and if he so thinks fit, different rates of subsidy in relation to some or all of such districts.
(2) The Minister for Finance may, after consultation with the Minister, by order under this sub-section revoke or amend any order made under the immediately preceding sub-section.
(3) In this Part of this Act the expression "appropriate rate" in relation to an inland mill means:—
(a) where an order made under sub-section (1) of this section dividing Saorstát Eireann into several districts is in force, the rate fixed by such order or by such order as amended under the immediately preceding sub-section in relation to the district in which such mill is situate; and
(b) where an order made under the said sub-section fixing a general rate is in force, the general rate fixed by such order, or by such order as amended under the immediately preceding sub-section.
I move amendment 97:
To delete sub-sections (1), (2), and (3) and substitute the following three new sub-sections:—
(1) The Minister for Finance may, from time to time, after consultation with the Minister, by order (in this Part of this Act referred to as a subsidy (rate) order fix by reference to weight, subject to the provisions of this section, the rate of subsidy to be paid under this Part of this Act on wheat milled at any specified inland mill.
(2) A subsidy (rate) order may relate to several inland mills, and in such case such order may fix separate, or different rates of subsidy in relation to some or all of such mills.
(3) The Minister for Finance may, after consultation with the Minister, by order (in this Part of this Act referred to as a variation order) under this sub-section revoke or amend any subsidy (rate) order.
This has reference to the amendment we have been discussing and it affects changes in Section 37. In fact the changes are only in form, but they provide for the payment of subsidies under the special circumstances I have mentioned rather than generally.
Amendment put and agreed to.
Amendments 98, 99 and 100 relate to amendments 4, 5 and 8 which have been already debated.
No. Amendments 4, 5 and 8 had reference to the question of a standard for millable wheat. These deal with the question of standard or rate of subsidy for inland mills.
They may not have the same reference to the sub-sections because others have replaced them.
This section has been replaced by a new section.
Then it only means that I withdraw them and that I shall put them down on the Report Stage to the new section.
Amendments 98, 99 and 100 not moved.
Section 37, as amended, agreed to.
SECTION 38.
(1) The Minister may, with the consent of the Minister for Finance, out of moneys provided by the Oireachtas, pay during such period as the Minister may determine subsidies at the appropriate rate in respect of wheat milled at an inland mill which is the subject of a milling licence.
(2) Every subsidy paid under this Part of this Act in respect of any wheat milled at an inland mill shall be paid to the person who was the holder of the milling licence in respect of such mill at the time such wheat was milled or the personal representative or (in the case of a body corporate) the liquidator of such person and in any case shall be paid at such time, calculated in such manner, and on such quantities of wheat as shall be prescribed.
(3) All claims for payment of a subsidy under this Part of this Act shall be made to and determined by the Minister and the decision of the Minister on any such claim shall be final and conclusive, but may be revoked or amended at any time by the Minister on the ground of fraud, misrepresentation or mistake.
(4) No subsidy shall be paid on any wheat milled by the Minister under Part VIII of this Act.
I move amendment 101.
In sub-section (1), line 41, after the word "may" to insert the words "by order."
This amendment, Sir, was my attempt to have these special subsidies brought before the House. The Minister said apparently that is going to be the procedure. If that is to be the procedure my amendment is not necessary. I wanted to have them brought in by order so that they will come before the House.
Of course an order fixing the rate of a subsidy, and Allocation Orders, must come before the House. That is done by order of the Minister for Finance, in amendment 97, which we have accepted. I take it, though, that the Deputy's amendment relates to the period during which the subsidies may be paid. Amendment 101 is to insert after the word "may" in line 41 the words "by order," so that the section would be "such period as the Minister may by order determine?"
If the Deputy attaches the same meaning to it as I do, I am accepting it.
Yes, but I understand that the fact of the subsidy and the amount of it is going to be brought before the House in a special order.
I do not see where that is compulsory on the amendment. I intended to raise the point on Section 40: "The Minister may by order make regulations for all or any of the following purposes that is to say:—
(a) prescribing any matter or thing referred to in this Part of this Act as prescribed." Supposing he makes an order, and by the order does not make a regulation, and is not bound to make a regulation because it is not a matter that has to be prescribed, must that order come before the House?
Sub-section (5) of Section 37 says: "Every order under this section shall be laid before Dáil Eireann as soon as may be after it is made."
That is under Section 37. Does that apply to an order made under Section 38?
Of course at present there is no order made under Section 38. As Section 38 stands at present there is no order made under it.
And I want to have this enshrined in an order, so that caught up in Section 37, if it is possible to entangle it in Section 37, the order will come before the House.
That is the order regulating the period during which the subsidy should be paid?
Yes. At the moment, the only compulsion on the Minister with regard to an order coming before the House is the order referred to in Section 37?
Now I was in doubt as to whether any other matter that is going to be determined in a later section to this was going to be caught up by Section 40, and I do not see that it was. I would like to get most of the things caught up in the order, and I put in a specific amendment on one special point. If that is going to be accepted it would require the acceptance of the phrase, and the transfer of sub-section 5 of Section 37 down to that section as well as 37.
If the Deputy would leave it over there may be a simpler method of doing it.
Certainly, if that is done.
Amendment withdrawn.
Could the Minister say as to whether it is his intention that the subsidy for inland mills if given should be equal in all cases—should be the same for all mills.
It would be intended that a subsidy would be fixed at a rate which would apply to, say, all mills in a particular area, or all mills of a particular size, or all mills of a particular size in a particular area, but it would have general application within these limits.
But it would be a varying subsidy?
It might vary as between area and area. I move amendment 102.
In sub-section (1), page 17, to delete all words from the word "at" in line 41 to the end of the sub-section, and substitute the following words "on all wheat (subject to the limitations (if any) imposed under the next following sub-section) milled at an inland mill, which is the subject of a milling licence and of a subsidy (rate) order for the time being in force, at the rate fixed in respect of such mill by such order or by such order as amended by a variation order.
This amendment is consequential on 97.
Amendment 102 agreed to.
I move amendment 103:—
To insert before sub-section (2) two new sub-sections as follows:—
(2) Whenever a subsidy (rate) order is made in relation to an inland mill, the Minister for Finance, after consultation with the Minister, may from time to time by order under this sub-section declare that where in a cereal year the wheat milled at such mill exceeds in amount the amount (in this sub-section referred to as the maximum) fixed by such order, no subsidy shall be paid on any wheat milled at such mill in any cereal year which is in excess of the maximum, and whenever any such order in relation to an inland mill is in force and there is milled at such mill in any cereal year wheat in excess of the maximum fixed by such order, no subsidy shall be paid on any wheat milled at such mill in such cereal year in excess of the maximum fixed by such order in relation to such mill.
(3) The Minister for Finance may, after consultation with the Minister, revoke or amend an order under the immediately preceding sub-section.
The same applies to this amendment.
Amendment 103 agreed to.
I move amendment 104:—
In sub-section (2), line 48, after the word "corporate" and within the bracket to insert the words "in liquidation."
I am advised that this is not necessary.
I wanted to raise the point. Sub-section (2) says that the subsidy shall be paid "to the person who was the holder of the milling licence in respect of such mill at the time such wheat was milled or the personal representative or (in the case of a body corporate) the liquidator of such person." You would not pay to the liquidator unless the body corporate were in liquidation. It seems to me there is something wanting.
Of course the word "person" includes body corporate. "Every subsidy paid under this Part of this Act in respect of any wheat milled at an inland mill shall be paid to the person," which includes body corporate, "who was the holder of the milling licence in respect of such mill at the time such wheat was milled or the personal representative or (in the case of a body corporate) the liquidator of such person." Of course the words in brackets are only put in there because "the liquidator" only applies in a case of a body corporate.
If "person" includes "body corporate" what is the necessity for putting in the words "body corporate," unless it was intended to put in the words "in liquidation"?
Obviously it only applies where the person is in liquidation.
In that case the personal representative of such person, or the liquidator of such person, only applies of course in the case of a body corporate. It was merely for clarification that the words in brackets were inserted. So I am advised.
Certainly it reads very oddly to say that the subsidy shall be paid either to the individual or to his personal representative or to that company's liquidator, without mentioning the circumstances of liquidation. However, leave it alone.
Amendment 104, by leave, withdrawn.
Amendment 105 is out of order. It would be a charge.
It is to change "no subsidy" into "subsidies." It would potentially do so.
It would still be out of order.
There is an overriding maximum put down in sub-section (4) of not more than 1/- for every 400 lbs. If the subsidies paid to the Minister would be subject to that limitation——
You say "subsidies shall be paid on any wheat milled by the Minister."
I do not say subsidies shall be paid. I put in the word "subsidies" and I continue so that the phrase reads "subsidies paid on any wheat milled by the Minister under Part VIII of this Act" shall not be subject to the overriding limitations of 1/- for every 400 lbs. My idea is if the Minister is going to mill wheat he will require all the subsidies we can give him.
The Deputy has been disappointed before.
Section 38, as amended, agreed to.
On Section 39 I just want to point out that there is the same objectionable phrase in paragraph 2 to which definite exception is taken when it occurs in other sections, namely, that a certificate signed by the Minister "stating that a person has obtained a payment of a specified amount by way of subsidy under this Part of this Act, and that such person was not entitled to such payment or to a specified part thereof" shall be conclusive evidence. I do not object to it here, because I think anything is good enough for anybody who is to get a subsidy under this particular section.
Section 39 agreed to.
Section 40 agreed to.
Section 41 is again very severe, but seeing it deals with persons who get subsidies I do not object.
Sections 41 and 42 agreed to.
SECTION 43.
(3) There shall be entered in every such register the matters required by this Part of this Act to be entered therein.
I move amendment 106:—
106. In sub-section (3), line 8, to delete the words "required by" and substitute the words "prescribed in."—
Might I ask with reference to this amendment, what are the matters that are required under Section 3, sub-section (4)? Are they only the matters that are mentioned in Section 46? Is it only a question of the name and address of the applicant and particulars of the premises? Is that all that is required, because if it is the phrase might stand as it is. Is it clear that that is all, because it is not objectionable to have it if that is all, but if anything comes in——
Very good—on that assumption.
Amendment 106, by leave, withdrawn.
Sections 43 and 44 agreed to.
I want to ask a question on Section 45. Is there good legal precedent for the use of the word "premises," as it is used in line 41 with regard to the sowing of wheat— that you have to sow wheat on premises? The word "premises" everywhere else has relation to buildings— buildings where a man is going to mill or store. Is there legal justification for the use of the word "premises" without any other phrase joined to it as meaning lands?
The Department of Agriculture raised that matter and we were advised that "premises" was the proper word to use, or at least that it would be a correct word.
It might be correct in certain circumstances. A lot of people hold you should grow wheat in this country under glass and premises would be a very good word there.
Section 45 agreed to.
SECTION 46.
(1) On receipt of an application for registration in a particular register under and in accordance with the immediately preceding section the appropriate Minister shall, subject to the provisions of the next following section, enter in such register the name and address of the applicant and particulars of the premises specified in such application in respect of which registration is sought.
I move amendment 107:—
In sub-section (1), lines 18-19, to delete the words "subject to the provisions of the next following section."
This is a point I can argue better on the various amendments that are down to Section 47 if just I might anticipate Section 47. I do not know what is the necessity for the proviso to it. I have called attention in amendment 108 to the words "other than Great Britain or Northern Ireland," and there are various other points I called attention to by amendments. If these are to be kept as they are, then I would rather have the phrase "subject to the provisions of the next following section" left out. If they are innocuous—they were explained as being more or less innocuous—the phrase in Section 46 might stand. If we could hold it over until we see Section 47 it might be better.
Very well, I will put it down again if required.
Section 46 agreed to.
SECTION 47.
(1) Subject to the provisions of the next following sub-section, the Minister for Industry and Commerce may refuse to register an applicant for registration in the register of flour importers if, in his opinion, the registration of such applicant is, having regard to the number of persons already registered in such register, not desirable in the public interest.
(2) The Minister for Industry and Commerce shall notwithstanding anything in the immediately preceding sub-section, not refuse to register an applicant for registration in the register of flour importers if such applicant was bona fide engaged either as agent for the importation of flour milled in Great Britain or Northern Ireland or as a direct importer of flour from any country other than Great Britain or Northern Ireland in the business of importing flour during any part of the appointed period, and the application for registration is made not later than one month after the appointed date.
(3) Subject to the provisions of the next following sub-section the Minister for Agriculture may refuse to register an applicant for registration in the register of wheat importers, the register of wheat dealers, the register of maize importers, or the register of manufacturers of compound feeding stuffs if, in his opinion, the registration of such applicant is, having regard to the number of persons already registered in such register, not desirable in the public interest.
(4) The Minister for Agriculture shall, notwithstanding anything in the immediately preceding sub-section, not refuse to register an applicant for registration in the register of wheat importers or the register of maize importers in respect of any premises if—
(a) in the case of an applicant for registration in the register of wheat importers, either—
(i) such applicant is the holder of a milling licence in respect of such premises, or
(ii) such applicant was bona fide engaged in the business of importing wheat during any part of the appointed period, and the application for registration is made not later than one month after the appointed date; and
(b) in the case of an applicant for registration in the register of maize importers, either—
(i) such applicant is a registered maize miller in respect of such premises, or
(ii) such applicant was bona fide engaged in the business of importing maize during any part of the appointed period, and the application for registration is made not later than one month after the appointed date.
(5) Subject to the provisions of the next following sub-section, the Minister for Agriculture may refuse to register an applicant for registration in the register of maize millers in respect of any premises if, in his opinion, either—
(a) such premises are not suitable and are not adequately equipped for the purposes of the business to which such register relates, or
(b) such premises and the equipment thereon are not in a state of good repair, or
(c) the registration of such applicant is, having regard to the number of persons already registered in such register, not desirable in the public interest.
(6) The Minister for Agriculture shall, notwithstanding anything in the immediately preceding sub-section, not refuse to register an applicant for registration in the register of maize millers in respect of any premises, if such applicant was bona fide engaged in the business of milling maize at such premises during any part of the appointed period and the application for registration is made not later than one month after the appointed date.
(7) In this section the expression "the appointed period" means the period commencing on the 1st day of January, 1929, and ending on the 19th day of October, 1932, and the expression "the appointed date" means the date of commencement of this Part of this Act.
I move amendment 108:—
In sub-section (2), line 50, to delete the words "other than Great Britain or Northern Ireland."
This is one of the points I was querying. In Section 47, sub-section (2), line 50, the phrase comes in "other than Great Britain or Northern Ireland" and I want to know what is the meaning of having it put in here. The whole sub-section has to be taken in the framework of the section. Sub-section (1) of the sections says "subject to the provisions the Minister may refuse to register an applicant if he thinks it is not desirable in the public interest having regard to the number of persons already registered in such register." Then when we come on to the sub-section it says "notwithstanding anything in the immediately preceding sub-section the Minister shall not refuse to register an applicant if such applicant is bona fide engaged either as an agent for the importation of flour milled in Great Britain or Northern Ireland or as a direct importer of flour from any country other than Great Britain or Northern Ireland." Why the limitation? Why not leave it from any country?
The Minister for Industry and Commerce has been acting on the assumption that there is a difference between those who are importing flour directly from Great Britain and Northern Ireland, and those who have been importing flour from other sources and in the allotment of the quotas for imported flour a difference has been made between the two classes. He was anxious to keep this distinction in the Bill.
What is the reason for the difference? For instance, a man must be registered "if he can show he is bona fide engaged either as an agent for the importation of flour milled in Great Britain or Northern Ireland" and he must get a licence if he can prove he is an importer of flour from any country other than Great Britain or Northern Ireland. Apparently he is not entitled to his place on the register if he can only prove that he was importing directly from Great Britain or Northern Ireland. Why? If he is an agent for British flour, you allow him to register if he is importing from any place other than Great Britain and you will not allow him to register if he has been importing directly from Great Britain. Why?
I would prefer if the Deputy would raise this matter later. I cannot give any further information other than what I have given.
Let us hold it over to the Report Stage.
Amendment 108 temporarily withdrawn.
I move amendments 109 and 110:—
In sub-section (2), to delete all after the word "period," line 52, to the end of the sub-section.
In sub-section (4), page 21, to delete all after the word "period," line 9, to and including the word "date" in line 11.
Previously, we had in regard to application for licences that the man who had previously been engaged in milling flour must make his application within three months. I want to know why he should not be allowed to get his licence to mill if he applied at any time, say, within a year. Now, we get this period cut down even more when it comes to the registration of premises; where a man is entitled to get his registration you put a very narrow limit of time upon him. He must make his application not later than a month after the appointed date. Why the provision of the month?
There must be some time limit with regard to these applications. After all, in those registers we have to have regard to the number of people registered in the different registers. If we had to keep in mind the fact that such people might come along to register within the next six months, we could hardly act unless we put some limit on the time within which they must come in.
Why a month as the time limit?
We must decide on something. I think a month is quite reasonable.
Let us decide on three months. I think a month is very unreasonable, and three months would be perfect.
No. 119 is a similar one. It is of the same character.
What is the necessity of rushing this to the point where only one month is allowed. It is quite clear the register must be made up, and the register with regard to the new applicants can only be made up after the register of those who must get their licences has been made up, because there is the consideration whether it is desirable in the public interest having regard to the number of persons already registered. You cannot consider the new people until you know about the other persons. In regard to milling licences, it has been decided, and I think the time is considerably short, but at any rate, three months is going to be given for that, although the Minister told us to-night every 1931 vintage miller of wheat has his application in, and yet three months is given there. Here, where we have not heard a statement, at any rate, that all these various people, the flour importers, distillers, wheat importers, wheat dealers, maize millers, maize importers and manufacturers of compound feeding stuffs, have all their applications already listed, it is only proposed to give a month after a particular date. I suggest that this might be held over with a view to getting the time extended.
The appointed date is, of course, when the Act comes into operation.
It may be any time; it may be a different point for this section alone.
Oh, no. I hope it will apply to all indiscriminately.
Would there not come a time, if a miller did not apply for his licence, when, to continue his operations would be illegal. The Minister apparently apprehends that if he does not prescribe a very strong time limit, millers will go on milling without bothering to apply for a licence. Would not a time then arise when, if they did not apply for a licence, their operations would be illegal?
Not if this amendment were carried, so far as I can see.
Suppose there is no proviso about time at all. They must get a licence at some juncture in order to entitle them to continue their operations?
Therefore, you have a double safeguard and you could afford to give them a little longer time. There is no serious danger of any miller getting mislaid and not seeking his permit in due course, but there is the possibility of inconvenience being caused by giving him so short a time. He may be a day or two over the time and it will involve the Minister and him in the inconvenience. I suggest that the Minister might give him three months or go half way and give him two months.
He might still be a day late.
He might still be a day late, but all reasonable men would say that he has been given every conceivable facility and that he is a sluggard. One month, however, seems to be rather too short a time and it has been suggested by those interested that, if the time were extended somewhat, it would greatly convenience them, and as no vital principle is at stake, I think the Minister might meet them.
I cannot see any hardship on any miller in having to apply within one month from the appointed date.
If the Minister was a busy miller or if he was striving to make both ends meet in spite of trade depression——
I am trying to be under this Bill.
The Minister is not a miller on this occasion and he is supported by a very brilliant collection of advisers but where a miller is standing alone, frantically trying to earn a living in times of great difficulty, it is wonderful how rapidly a month will pass by. It is perfectly true, as the Minister says, that if he got two months he might be a day late, or even if he got six months, but what we are asking the Minister to do is to show the miller every consideration consistent with the efficient administration of the Act.
Amendment 109 withdrawn.
Amendment 110 not moved.
I move amendment 111:
In sub-section (4) (b), page 21, to delete all words from and including the word "either" in line 13 to and including the word "or" in line 15.
The point there is that where a maize importer is also a maize miller, we think it advisable to put certain restrictions on him. The person who is a maize importer and not a maize miller would have the wider powers specified in the section.
Amendment 111 agreed to.
I move amendments 112 and 113:
112. In sub-section (5), line 24, to delete the words "in his opinion" and substitute the words "in agreement with the Maize Milling Advisory Committee he is of opinion that".
113. In sub-section (5), to delete paragraphs (a) and (b).
When amendment 112 was put down I had expected that a maize milling advisory committee would have been constituted under this Bill. That has not been done, but I understand that the Minister has said that, under another Act, he intends to set up such an advisory committee.
I am taking power under another Act to do so.
Mr. Lynch
The Minister intends to set up a maize milling advisory committee?
Mr. Lynch
If I got an assurance that, when that committee has been set up, it would be consulted in regard to matters of this kind, I would be prepared to withdraw my amendment.
I am not sure. I wonder would it be in the interest of the person who is applying to consult the advisory committee? I think they would be very much inclined to be against any more licences being granted.
Mr. Lynch
I imagine that, for the Minister's own protection, it would be advisable for him to take a step of that kind. There may be allegations that favouritism is shown or something of that nature and the Minister, I think, should take every possible step to prevent any such allegation being made. No such allegation could be made if he had consulted the maize milling advisory committee even though he might not necessarily act on their recommendation.
The Minister must consider this amendment in relation to the Bill as it is at present drawn and not as it is proposed to be amended by a later amendment. At the moment, the Minister has power to decide, not merely what is in (c), namely, that the registration of the applicant is undesirable in the public interest having regard to the number of persons already registered on such register—he might have passed a favourable judgment on that and said that it is not undesirable in the public interest to have new entrants into the milling business— but he can also decide to throw out the application on the ground that the premises are not suitable or that the premises or equipment are not in a state of good repair. Surely, these are two matters, apart from (c), on which the Minister might, with advantage, consult that committee he is going to set up under some other Act. I agree that it would be undesirable to consult them with regard to (c), because I think the tendency, under all the provisions of this Bill, is to associate these bodies into rings, and if they are to be asked whether new entrants will be allowed into their ring, clearly they will go against them, but certainly I think they should be consulted on the question as to whether the premises are suitable or the premises and equipment are in good repair.
It will be necessary for the working of this Bill to have milling experts on the staff of the Department of Agriculture and they would appear to be the best people to consult in regard to premises and so on.
We were told yesterday, on the financial resolution, that the staff that would be required this year would not entail a cost of more than £1,500, and in no year would it entail a cost of more than £4,000. Does it mean that the year this Bill is going to operate we are going to get experts, in addition to the staff required, and that the total cost will not be more than £4,000?
The experts we will require under this Bill will be two milling experts.
Two milling experts at £1,500 yearly. That is £750 each. I wonder what the Civil Service will say to the introduction of experts at these salaries?
Mr. Lynch
Having regard to the subsequent sub-section in regard to premises, as far as I see no matter how dilapidated the premises may be, or how inadequate the equipment, if the applicant has been milling during the required period he will have power.
Mr. Lynch
There is really no point at all in having that provision there about premises and equipment in view of the next sub-section.
Sub-section 5 would apply to new applicants.
It will apply to new applicants where the Minister thinks the premises, in respect of which the application is made, are not in good order and repair.
It does not apply to those at present engaged in the milling industry. They are saved by sub-section 6.
I am speaking of new applicants. Still here we have power given the Minister with regard to new applicants. He is going to decide whether their premises are suitable and if their equipment is in repair. If a man proposes to establish maize milling he ought to be the best judge whether the premises are suitable and if they are in good order and repair. If not he will soon go out of business. Why not let business have a part some time?
I would be almost tempted again to go back and vary the Dairy Produce Act. People were put out of that business.
Exporters of eggs and the manufacture of dairy produce. If their premises were not suitable they were put out of business.
I am glad we have the Minister at last wrapping the Cumann na nGaedheal flag around him. He is the third to do so.
I am pointing out how we are merely adapting what Cumann na nGaedheal did. We could go a good deal further before we would be as bad as Cumann na nGaedheal.
The point is that we have not yet got any equation of the Eggs Act to this.
We know that eggs are different.
I quoted the manufacturers of dairy produce.
I do not accept that comparison.
I must say that I had the unpleasant duty of withdrawing a licence from a man under the Dairy Produce Act.
I imagine it could be unpleasant for the Minister, whose whole idea is to demoralise the country by subsidies and flapdoodle of every kind.
We are going to be stricter in this.
Amendments, by leave, withdrawn.
Mr. Lynch
I move amendments 114 and 115:—
In sub-section (5), (c), line 31, after the word "register" to insert the words "or likely to be registered."
In sub-section (5), (c), line 32, after the word "register" to insert the words "under the next subsequent sub-section."
The insertion of the amendments would improve and clarify the section.
I think the point is covered, but I am quite prepared to accept it.
Will the Minister say where it is covered?
Amendments, by leave, withdrawn.
Amendment 116 not moved.
Question—"That Section 47, as amended, stand part of the Bill"— put and agreed to.
SECTION 48.
(1) Any person who is registered in any register kept under this Part of this Act may apply to the appropriate Minister to be registered in such register in respect of additional premises and upon receipt of such application the appropriate Minister shall, subject to the provisions of this section, register such person in such register in respect of such additional premises.
(2) The appropriate Minister may refuse to register an applicant for registration in respect of additional premises in any register kept by him on any of the grounds on which he would be authorised by the immediately preceding section to refuse to register such applicant, if such application were an original application by such applicant for registration in such register in respect of such additional premises.
Amendment 117 seems superfluous, but I am prepared to hear the Deputy on it.
I move amendment 117:—
In sub-section (2), line 55, after the word "applicant" to insert the words "but subject to the provisions of that section."
We have regulations laid down for registration of premises and they run that certain people "must" get premises registered and that certain others "may" get them registered. Then we come to the registration of new premises. I want to have it that the registration of the new premises shall run exactly on the lines of Section 47. If a person has been already in business, and has occupied more than one premises he will be registered in respect of one or two premises and will not be limited to a single set of premises. I think that is the intention of the section, but it is not in it.
That is the intention of the section. I do not think the amendments are required.
Let me point out that sub-section (1) merely states that any person who is registered "may" apply to be registered in respect of additional premises, and the Minister "may," subject to the provisions of this section, register them. When we look at the provisions of the section they relate only to provisions which may nullify the application, because the next section only talks about refusing to register. Under the sub-section, a man may apply, and shall, subject to the provisions of the section, be registered, but we come later to a subsequent provision and find it only applies to refusal. The obligation is carried forward under Section 47. Is it not clear that there is under Section 47 an obligation on the Minister to register premises if a man had been in the business. Is there the same obligation to register other premises than the first lot, if a man had been using them in the business previously? That is what I want to achieve. I do not think that is in the section.
I am advised that the section, as it stands, would have that effect. That is to say, the registration of additional premises other than those on the register will have to be on the same conditions of registration as those in which he is now milling maize.
All I can say is that it is nowhere in the section. The first sub-section says that a person may apply, and that the Minister "may" register, subject to the provisions of the section. Under this section, there is nothing to oblige the Minister to register. Sub-section (2) deals entirely with refusal. Where is the obligation? However, leave it alone.
Amendment, by leave, withdrawn.
I move amendment 118:—
At the end of sub-section (2), line 57, to add the words "but shall not refuse to register an applicant for registration in respect of additional premises in any register kept by him if such additional premises had in fact been used by the applicant for the purposes of his business during any part of the appointed period as defined in the preceding section, or if such additional premises are required by the applicant in substitution for other premises used by the applicant for the purpose of his business during any part of the appointed period so defined, or as a necessary addition to premises previously so used."
My amendment is much on the same lines as the previous one, but I think it makes the point clearer. I do not think this matter is covered. The latter part of the amendment would not be covered by anything in the preceding section. If any miller or person in any other business was to carry on successfully it would be necessary, on occasions, to make additions, or to substitute new buildings for old ones, maybe in a different place. It is not asking too much of the Minister to take from him the powers of refusal of a licence for additional premises under such circumstances. I am of the opinion that they are not covered by anything in the section. They are not covered certainly by anything under Section 48.
Might I add to what Deputy Bennett said that amendment 118 might be divided into three sections. If Section 48 is so divided it would cover additional premises acquired in substitution for other premises used by the applicant for the purpose of his business during any part of the appointed period defined, or as a necessary addition to premises previously so used. Let me take the second of those—substituted premises. This runs in a series of pairs. Sub-section 6 of 47 is the one which obliges the Minister to register, or rather "that he shall not refuse to register an applicant for registration in the register of maize millers in respect of any premises." That seems to be wide enough, but the limitation occurs in the next phrase: "if such applicant was bona fide engaged in the business of milling maize at such premises." Is it not clear enough that the Minister has to give a licence in respect of particular premises used? Supposing the premises are burned down, does not Deputy Bennett's amendment cover that?
The other point is that a man may be carrying on a business and the business has outgrown his original intention, and he wants to add to it. He puts part of his machinery into the new development, but it is part of the same mill. Is that man bound to get a licence for this addition which he has made to his business? It is the same business but he wants to get additional machinery to carry on developments in that business. That position is not covered by the section.
With regard to the points raised by the Deputy as to a man's premises being burned down and his wanting to replace them by another building and also the point of a man carrying on the business of maize milling wanting to add to his business, he is entitled under Section 48 to register additional premises. That would appear to cover the first part of Deputy Bennett's amendment.
Section 48 does not empower the Minister to do that subject to the provision of this amendment. It does not give you the power of the preceding section, as Deputy McGilligan pointed out.
I have been advised by the legal advisers at our disposal that Section 48 does give security to the people who want additional premises. If the man wants to get additional premises, he need not show that they are any addition. He can get them in any case. That would be covered by the term "additional premises" and this amendment would only mean adding what is unnecessary.
If it clarifies what is meant by the Section, there can be no great objection to it. Still, whatever the Minister is advised as to the first part of the amendment being covered. I am of opinion that the first section in Section 48 does not refer explicitly to Section 47. The Minister says that it does, but it is doubtful in my mind and in the minds of many members of this House whether that is so. If it does, all right, but if the only objection the Minister has to it is that it makes what is clear more clear I do not see why he should resist the amendment.
I do not think that it makes it more clear, subject to the draftsman changing it.
It does appear to us, subject to the draftsman changing it, that it is not covered by the Section. We are not satisfied that the Bill might be so interpreted by other authorities. Would the Minister re-consider putting the amendment in some other words?
All I can do is to consult the draftsman again, but I think it is all right.
Amendment 118 by leave withdrawn.
Agreed that Section 48 stand part of the Bill.
Section 49 agreed to.
Section 50 agreed to.
SECTION 51.
The appropriate Minister shall on the application of any person who is registered in any register kept by him and upon payment to such Minister by such person of the fee of one shilling issue to such person a certificate of such registration.
I propose amendment 120 which means the adding of three new sub-sections to Section 51. We have no provision in the Bill for the return in case the registration was cancelled. This amendment is to provide that it would be returned.
At the end of the section to add three new sub-sections as follows:—
"(2) Whenever the appropriate Minister has issued to a person who is registered in any register kept by that Minister a certificate of such registration and such person ceases to be registered in such register, the person to whom such certificate was issued shall within three days or (where such person is dead) the personal representative of such person shall within one month after such death deliver to that Minister such certificate of registration.
(3) If any person who is required by the next preceding sub-section to deliver up a certificate of registration fails or neglects so to do in accordance with the said sub-section, such person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding two pounds and to a further fine not exceeding five shillings for every day during which such offence is continued.
(4) An offence under this section in relation to a certificate issued under this section by the Minister for Industry and Commerce may be prosecuted by or at the suit of that Minister as prosecutor, and an offence under this section in relation to a certificate issued under this section by the Minister for Agriculture may be prosecuted by or at the suit of the Minister as prosecutor."
Amendment 120 agreed to.
Agreed: That Section 51, as amended, stand part of the Bill.
Agreed: That Section 52 stand part of the Bill.
SECTION 53.
(1) The Minister for Industry and Commerce may by order make regulations in relation to all or any of the following matters, that is to say:—
(a) the returns to be made to him by registered flour importers and registered distillers;
(b) the times at which such returns are to be made;
(c) the forms in which such returns are to be made.
(2) The Minister for Agriculture may by order make regulations in relation to all or any of the following matters, that is to say:—
(a) the returns to be made to him by registered wheat importers, registered wheat dealers, registered maize millers, registered maize importers and registered manufacturers of compound feeding stuffs;
(b) the times at which such returns are to be made;
(c) the forms in which such returns are to be made.
(3) Every person required by regulations made under this section to make any return who fails or refuses to make such return in accordance in all respects with such regulations shall be guilty of an offence under this section and shall be liable on summary conviction thereof to the penalties mentioned in Part II of the First Schedule to this Act.
(4) An offence under this section by a registered flour importer or registered distiller may be prosecuted by or at the suit of the Minister for Industry and Commerce as prosecutor.
(5) An offence under this section by a registered wheat importer, a registered wheat dealer, a registered maize miller, a registered maize importer, or a registered manufacturer of compound feeding stuffs may be prosecuted by or at the suit of the Minister for Agriculture as prosecutor.
The following amendment (No. 121) is in the name of Deputy Dillon:—
In sub-section (3), line 61, to delete the figures "II" and substitute therefor the figures "III."
This is an amendment merely to change the penalties. That is to say, that for an offence under this section the defendant shall not be liable to the penalty of imprisonment that is scheduled in Part II of the section, but should be subject to a fine as set out in Part III of the Schedule. I think that an offence of this kind does not justify imprisonment.
I regard this section which has regard to the returns to be made by registered persons, as very important.
You must have imprisonment?
We must have powers of imprisonment.
Amendment 121, by leave, withdrawn.
I move amendment No. 122.
Before sub-section (4) to insert a new sub-section as follows:—
An appeal shall lie in accordance with Section 18 of the Courts of Justice Act, 1928 (No. 15 of 1928), against any conviction under the next preceding sub-section.
I should like to get the Minister's view on that particular matter, as to whether there is to be an appeal to the High Court as provided by the Act of 1928.
I am advised that the right of appeal under the Act of 1928 applies to all criminal cases whether the offences come under an Act passed before or after that Act.
That is the Act of 1928 works forward and takes this in?
Yes. The amendment is unnecessary.
Amendment, by leave, withdrawn.
This is the first of a number of similar amendments aiming at an appeal. I presume they all stand under this decision.
Section 53 put, and agreed to.
SECTION 54.
(2) In addition to the statements required by the foregoing sub-section, every registered wheat grower shall upon being served by the Minister for Agriculture with a notice send to that Minister within ten days after such service, a return giving such particulars in relation to any wheat sown by him as may be specified in such notice.
(3) If any registered wheat grower fails to comply with the provisions of this section or in any return made under this section makes any statement which is false or misleading in any material respect, such grower shall be guilty of an offence under this section and shall be liable on summary conviction thereof to the penalties mentioned in Part II of the First Schedule to this Act.
I move amendment No. 123:—
In sub-section (2), line 21, after the word "be" to insert the words "prescribe and."
This is again offered to try to get some publicity for the arrangements the Minister is making. Has he any objection to consider that, as he has promised to consider various other suggestions?
You cannot prescribe a thing in a notice. The sub-section would read with the amendment "particulars in relation to any wheat sown by him as may be prescribed and specified in such notice." I do not know how that could be done.
Amendment, by leave, withdrawn.
Amendment 124 not moved.
I move amendment No. 125:—
In sub-section (3), line 28, to delete the figure "II" and substitute the figure "III."
I rise merely on this amendment to ask the Minister to consider that he is dealing here with a body of people who have not been making returns of this nature. He is dealing with a somewhat different class of people from those he has been dealing with up to the present. In this particular section he is dealing with the ordinary farmer throughout the country. The maximum penalty may be imprisonment, and I doubt if the Minister should ask here for imprisonment, because it will undoubtedly be difficult for the ordinary farmer to make the prompt return required under this particular section. I think owing to the class of people referred to here the plea for the mitigation of the penalty stands on stronger grounds than the previous pleas which we put forward.
I am inclined to agree with the Deputy's statement.
Taking the circumstances of the ordinary farmer into account it is rather too hard.
The term "false or misleading" in sub-section (3) is rather severe.
If it were inadvertently false or misleading the court would not inflict any penalty.
Would you put in "careless" then?
I do not know whether we could go so far as that. There may be wanton carelessness.
The Minister should know that the answers he would get in some cases, while quite clear perhaps to the people who prepare them, might mislead his officials.
The Deputy knows that the Government Department would not be too hard on them then.
I suggest that the Minister should consider that matter when he is considering the mitigation of the penalty.
Amendment, by leave, withdrawn.
Might I call the Minister's attention to the date, the 30th April, and suggest that it might be changed to the 15th May? It is quite possible that all the wheat might not be sown on the 15th April.
The point about that is that sometimes you do not get returns at the proper date and you have to send out a second whip. In cases like that it would probably be later than the 15th May before you would get the return.
Section 54 put and agreed to.
SECTION 55.
(1) It shall be the duty of every person registered in the register of flour importers, or the register of distillers in respect of any premises to keep or cause to be kept at such premises in the form prescribed by the Minister for Industry and Commerce the following records, that is to say:—
(a) if such premises are entered in the register of flour importers, records of all wheaten flour and wheaten meal brought on to or dealt with at such premises and of all dispositions of such flour and meal; or
(b) if such premises are entered in the register of distillers, records of all home-grown millable wheat purchased by him and brought on to such premises and of all dispositions of such wheat,
and within twelve hours after such importations, purchases or dispositions to enter or cause to be entered in such records the particulars thereof prescribed by the Minister for Industry and Commerce.
(2) It shall be the duty of every person registered in the register of wheat importers, the register of wheat dealers, the register of maize millers, the register of maize importers, or the register of manufacturers of compound feeding stuffs in respect of any premises to keep or cause to be kept at such premises in the form prescribed by the Minister for Agriculture the following records, that is to say:—
(a) if such premises are entered in the register of wheat importers, records of all imported wheat brought on to or dealt with at such premises and of all dispositions of such wheat; or
(b) if such premises are entered in the register of wheat dealers, records of all home-grown millable wheat purchased by him and brought on to or dealt with at such premises and of all dispositions of such wheat; or
(c) if such premises are entered in the register of maize millers, records of all maize and home-grown cereals brought on to such premises, of the quantities of such maize and home-grown cereals on such premises into a maize meal mixture and of all dispositions of such maize meal mixture; or
(d) if such premises are entered in the register of maize importers, records of all maize brought on to or dealt with at such premises and of all dispositions of such maize; or
(e) if such premises are entered in the register of manufacturers of compound feeding stuffs, records of all raw materials used in the manufacture of compound feeding stuffs, of all compound feeding stuffs manufactured on such premises and of all dispositions of such feeding stuffs;
and within twelve hours after the completion of any such importations, purchases, millings, manufactures or dispositions to enter or cause to be entered in such records the particulars thereof prescribed by the Minister for Agriculture.
(3) Every record kept in pursuance of this section may be inspected at any time during office hours by, in case such record is kept at premises registered in the register of flour importers, or the register of distillers, any inspector of the Minister for Industry and Commerce or, in case such record is kept at premises registered in the register of wheat importers, the register of wheat dealers, the register of maize millers, or the register of maize importers, any inspector of the Minister for Agriculture and it shall be the duty of the person liable under this section to keep such record to produce for the inspection of such inspector on demand such record and also all invoices, consignment notes, receipts, and other documents (including copies thereof where the originals are not available), reasonably demanded by such inspector for the purpose of verifying any entry in or explaining any omission from such record.
(4) If any person liable under this section to keep a record at any premises—
(a) fails to keep or cause to be kept at such premises such record as is required by this section, or
(b) fails to make or cause to be made in such record within the time fixed by this section any entry required by this section to be made therein, or
(c) fails to produce or cause to be produced for the inspection of an inspector on demand any record, document, or copy of a document which he is required by this section so to produce, or obstructs any such inspector in the making of such inspection, or
(d) wilfully or negligently makes or causes to be made in such record any entry which is false or misleading in any material particular,
such person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to the penalties mentioned in Part I of the First Schedule to this Act.
(5) For the purposes of this section—
(a) inspection of a record or document shall include taking copies thereof or extracts therefrom; and
(b) a demand for inspection of a record or other document shall be deemed to have been duly made to the person liable under this section to keep such record if such demand is made verbally on the premises at which such record is required by this section to be kept to any individual in the employment of such person, and
(c) a refusal or failure to produce a record or other document for inspection if made or committed on the premises at which such record is required by this section to be kept by an individual in the employment of the person liable under this section to produce such record or other document shall be deemed to have been made or committed by such person; and
(d) the expression "office hours" means any time between the hours of ten o'clock in the morning and five o'clock in the afternoon during which business is being carried on or work is being done on the premises.
(6) An offence under this section, if committed by a registered flour importer, or a registered distiller, may be prosecuted by or at the suit of the Minister for Industry and Commerce as prosecutor.
(7) An offence under this section, if committed by a registered wheat importer, a registered wheat dealer, a registered maize miller, a registered maize importer, or a registered manufacturer of compound feeding stuffs, may be prosecuted by or at the suit of the Minister for Agriculture as prosecutor.
I move amendment 126:—
In sub-section (1), page 23, line 37, after the word "premises" to insert the words "or at such other associated premises owned by such person as shall have been designated by such person for a specified time for the keeping of the required records and notified to the Minister for Industry and Commerce."
Again, in a rather similar case dealing with the mills, the Minister agreed to consider the advisability of introducing an amendment in regard to where these registers should be kept. This deals with the importers, and I suggest that a similar provision should be made here, that so long as the place is designated, and so long as the Minister knows where he can get the registers and get at them, that should be sufficient.
I agreed to consider that, but I stated that there would be a condition that the offices would not be in point of distance too far away from the mills.
May I ask the Minister to consider it with quite an open mind, and that in this case, as in the case of the millers, he should not consider the convenience of the officials, but consider the running of the business itself? Whereas you may have three or four business premises or mills you may have only one central office. The inconvenience of the officials should not be allowed to weigh against the serious interference that may be caused to the business.
Amendment, by leave, withdrawn.
I move amendment 127:—
In sub-section (1), page 23, lines 43, 46 and 47, to delete the word "dispositions" where it occurs and substitute the word "sales."
I just want to get information on this as to what exactly besides sales the Minister means by the word "dispositions."
There might possibly be other things. A maize miller may have a shop, and he might be transferring to his own shop for sale there, or he might dispose of some stuff that would be inferior. He may have to destroy it. He may have to dispose of some stuff in compound stuffs. In any case, "dispositions" would include the whole lot. It is a wider term.
Would that mean for instance that the officials would have the right to pursue the stuff if it were mixed by some secret process and that the importer would be bound to reveal that secret process? Would it not be better to enumerate the different things which the Minister has in mind? The objection to the word "dispositions" is that it is too vague. What are precisely its merits in the Minister's eyes seems to make it objectionable from the point of view of a person who may have a secret mixing process and who is liable to be compelled to reveal that process.
The point in regard to inquiring into secret processes may come up on the section dealing with feeding stuffs.
Would the Minister consider such a man when he is dealing with the matter?
Amendment, by leave, withdrawn.
Amendment 128 not moved.
I move amendment 129:—
In sub-section (1), page 23, line 48, to delete the word "twelve" and substitute the word "twenty-four."
Amendment put and agreed to.
Amendment 130 not moved.
On behalf of Deputy O'Neill I move amendment 131:—
In sub-section (2), page 23, lines 56 and 57 to delete the words "in the form prescribed by the Minister for Agriculture."
We have been discussing for a long time this evening difficulties with regard to the keeping of registers, the situation of offices and other matters. To add to the difficulties of the millers they are now asked not only to keep records but to keep them on certain forms. We all know that departmental and Government forms are rather difficult to keep. One could easily make a little mistake and that might render one liable to be imprisoned by the Minister for Agriculture or the Minister for Industry and Commerce. The millers may be relied on to keep their records in a very good way and in a manner that will satisfy the Minister. The amendment asks for the deletion of the words set out.
The difficulty about this is that one would require to have some knowledge of accountancy in relation to the business of millers to appreciate the significance of this amendment. If the Deputy who moved the amendment got an assurance that whatever forms were prescribed would conform, as nearly as possible, to those the millers have been accustomed to keep it might satisfy him. Any alteration in the manner in which the information must be kept would be a matter of much concern to the millers. There are various Government forms which prescribe different methods for the making up of accounts and so on. These are objectionable to business people who have their own methods of keeping their accounts, the methods to which they have been accustomed for years. I take it the fear behind the amendment is that a whole new series of forms will be prescribed with which the millers will not be familiar.
This prescribed form will be drawn up in consultation with the Advisory Committee. Naturally we would call the Advisory Committee together and put our form before them.
On that undertaking I withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment 132:
In sub-section (2) (c), page 24, line 4, to insert after the word "cereals" the word "milled."
This is a drafting amendment.
Amendment agreed to.
Amendments 133 and 134 not moved.
On behalf of Deputy O'Neill I move amendment 135:
In sub-section (2) (e), page 24, to delete all after the word "stuffs," line 12, to the end of the paragraph and substitute the following:—"such records of the quantities of all raw materials brought on to the premises for the manufacture of compound feeding stuffs, of the quantities of all compound feeding stuffs manufactured on such premises, and of all disposals of such feeding stuffs as may be required for the purpose of supervising and enforcing the provisions of a licence granted under Part VI of this Act: provided that nothing hereby required shall be construed as obliging the production of any information relating to or disclosing the composition of any special mixture or any secret process used by the person registered."
The object of the amendment is to protect the secret processes and prescriptions which may be of great value to the owners of mills. These prescriptions relate principally to compound feeding stuffs. Some millers, I understand, have paid considerable sums of money for these secret processes, and naturally will not want to make the secrets available to inspectors of the Department when they visit their mills. The amendment seeks to ensure that the millowners will be safeguarded to the extent at all events that no inspector, acting under the authority of the Minister, will have the right to ask for these secret processes and prescriptions.
Perhaps it is just as well that I should make it clear now that inspectors will have the right to inquire into such matters. Otherwise we could not carry out the clause about compound feeding stuffs. We want to see that the compound feeding stuffs turned out will be good in every way as feeding stuffs and also fair value for the money paid for them. We could not do that unless we had this power. Apart from that we will need to be able to trace the maize and other cereals through their different stages in the mill. We will require to have power to trace where these go to. In addition we may have to examine the books of the miller to see in what mixtures they went. Of course these officials will be bound by the Official Secrets Act, and that should be sufficient protection for the manufacturer. I do not think myself that there is much in those secrets.
The question is, is it the secrets that you want?
No. We do not want them, but we may come on them inadvertently.
There is just one thing about the Official Secrets Act. If the Minister is correct in saying that he does not want the secrets, then the information that is given to the official does not matter. If, on the other hand, it were required for that purpose, then the Official Secrets Act will not be worth the paper it is written on.
I think the Minister was doubtful about the value of the Official Secrets Act because I think at first he was going to complete his sentence by saying "if that is of any use," but changed it and said that the Official Secrets Act ought to be sufficient protection. Possibly he had some doubt in his mind.
What I did doubt was the value of the secret.
Surely that is a matter for the people who have the secrets to produce these peculiar proprietary stuffs. I did not gather that from the Minister's statements on previous amendments in which reference was made to the word "dispositions." I thought he was quite willing to consider how this could be dealt with. I do not know how many officials in the way of inspectors the Minister will have to administer this Act. Has he any idea?
If necessary, we could confine the inspection of compound feeding stuffs to one inspector, if a case be made about these secret processes.
I would prefer if the work were divided, and not have all this information concentrated in one person.
So far as these proprietary feeding stuffs are concerned, the Minister may have his views as to their value as feeding stuffs in his capacity as Minister for Agriculture, but I suggest that the only persons who can have views of their commercial value are the public or the owners of those particular secrets. It would be a very serious thing if this Bill could be used so that these secrets could be made known to quite a number of people. I do not know what the rank of the inspectors to be appointed will be or what their salaries will be. These are matters that now become important if the inspectors are to be in a position to inquire into and to have full knowledge of these things. Certainly the position, rank and salary of the inspectors will then become a matter of importance. Could the Minister give us any idea as to the type of man he has in mind for the position of inspector dealing with this?
At the present time we have power to take a sample of feeding stuff, analyse it and get the amount of carbohydrates and proteins which it contains. I think as far as that goes if it proves satisfactory and if it is found that the price is not exorbitant we would not go any further into an inquiry, but if we felt that it was a case of a real fraud we would be entitled to go into it and find out if it was a fraud. Some few years ago the Department of Agriculture knew that there was a compound feeding stuff sold in this country for about eight times its real value. They exposed that, but all they could do was to publish the matter. They could not go any further. It was not very effective. We want to be effective, and to get the real contents of that stuff. Then we can warn the manufacturer that he cannot continue it, and if he does so we can refuse to give the licence.
These are two different methods of getting information. If you get information by analysis you can utilise this information in the same way as a person in the revenue service could get information about clients in a bank, but the information in the two cases would be different. The information you get by analysis is one thing, but the information by this backdoor method is another thing if you utilise it for another purpose altogether. It may not be the mere question of the actual proportion of the contents of the compound, but the actual way in which the process is carried out. You are using the information given in the Bill and not merely utilising it yourself, but the secret is no longer a secret of the owner. The secret is given to an official and we do not really know what his position is.
This matter will again come on under the feeding stuffs section, but still it was necessary to discuss it here on account of this amendment.
I quite agree. The suggestion that the Minister made earlier that it would come up under the section dealing with the feeding stuffs is not sufficient because it is here under this section that the right is given. It may have reference to the compound feeding stuffs, but an opportunity of getting the information is given here.
What we are dealing with is the composition of maize and the home-grown feeding stuffs. If there is poultry meal or pig meal for which the proprietor claims to have a secret —but which we are informed at the present time is only a myth—he certainly will not object to making known the amount of maize in the feeding stuff. He may object to the official knowing the amount of lime or iodine or any of the other things that work the miracle.
That is precisely where the difficulty is, the wording is so vague that you do not know what is to happen to it.
But we are only dealing with the amount of maize here.
We will go into this matter again when we see what is done under the other section.
Amendment 135 withdrawn.
Amendment 136.
In sub-section (2) (e), page 24, line 15, to delete the word "dispositions" and substitute the word "sales."—(Patrick McGilligan.)
This amendment is governed by amendment 127. We had it twice already.
Amendment not moved.
Amendments 137 and 138:—
137. In sub-section (2), page 24, line 17, to delete the word "twelve" and substitute the word "forty-eight."— (Patrick McGilligan.)
138. In sub-section (2), page 24, line 17, to delete the word "twelve" and substitute the word "twenty-four."—(Aire Talmhaíochta, Jasper Travers Wolfe.)
These amendments are analagous to amendments 69 and 70. Amendment 137 is not moved and amendment 138 is agreed to.
The following amendments were on the Paper:
139. In sub-section (3), line 24, after the word "distillers" to insert the words "or premises associated therewith."—(Patrick McGilligan.)
140. In sub-section (3), line 25, to delete the word "such record is kept at premises" and substitute the words "the premises to which such record relates are."—(James M. Dillon.)
These are similar to amendment 68.
These will be reconsidered.
We will take them as not moved.
Amendment 141:—
In sub-section (3), line 28, after the word "Agriculture" to insert the words "on production of his authorisation in writing as such inspector."—(James M. Dillon.).
Amendment 141 is decided by amendment 79.
The Minister has already promised to deal with that point. I presume the same applies to this particular part of the Bill.
Amendment not moved.
Amendment 142:
In sub-section (3), line 31, before the word "invoices" to insert the word "such" and in line 32, after the word "documents" to insert the words "as have been prescribed."—(Máirtín O Rodaigh.)
This amendment is really a further attempt to restrain the inquisitorial powers of the Minister and his officials. The section reads ... "and it shall be the duty of the person liable under this section to keep such record to produce for the inspection of such inspector on demand such record and also all invoices, consignment notes, receipts and other documents ... reasonably demanded by such inspector for the purpose of verifying any entry in or explaining any omission from such record." Now the verification of an entry might assume considerable proportions if free scope were given to the Minister and his officials. It may be that the official would insist on inquiring into the actual profits earned by the owner of the firm concerned; into the actual working costs of the concern and many other matters of a purely private nature which it appears to the owner are of no use and of no advantage to the official in the carrying out of his duties. But on account of the way in which the section is worded there is no doubt that under the Bill the Minister is given very wide authority and naturally the section has caused a great deal of uneasiness in the minds of millers because they do not know if this Bill is passed into law what sort of information the official may ask or demand. It appears that the section as worded gives the official a right to demand the actual working costs, the rate of wages paid to the men working on the premises and so on. It seems to me that that is an entirely unreasonable position and I hope the Minister will take some steps to amend the section so as to make it quite clear that when his officials do visit mills of that kind carrying on this business that they will be restricted to the information necessary for them.
This point was argued before on another question and I demonstrated on that occasion that it would not be possible to confine the section as the Deputy suggests. It is clear that the inspector would not have the power that the Deputy says he would have. The inspector is only entitled to "demand invoices consignment notes and so on for the purpose of verifying any entry in or explaining any omission from such record." If the owner of the premises felt that the inspector was exceeding his rights and was demanding some document that he could not reasonably require for the purpose of carrying on his duties, then he could reasonably refuse to give him the documents, and he has a good defence if he could establish that the document could not be reasonably required for the purpose of verifying the record. We must assume that the inspectors will be reasonable people, and that if they are not reasonable people the Minister will remove them.
What do they want "receipts" for?
For the purpose of verifying the record; they want the receipts for the sale.
Why for sale? I do not know that receipts are required for any sale.
The point is that these documents, ordinary business documents, should be made available for inspection. There might, for instance, be some suspicion of attempted fraud and the inspector might be anxious to verify certain matters by reference to the records. If the owner of the premises believes that the inspector is acting in excess of his authority and is demanding documents that are not necessary in the performance of his duty, then the owner can refuse to allow those documents to be inspected.
Has the Minister any objection to amendment 143?
That amendment is not necessary.
In my opinion, it will make the section clearer and more definite.
It is quite possible that there could be a misinterpretation in respect of this part of the section which might give an official the right to ask for certain private information which would not be quite necessary for the purpose of his investigations. Perhaps the Minister will consider between now and the Report Stage inserting a suitable amendment which will make it quite clear that the official will not be entitled to information relating, for example, to the working costs of a mill?
We asked the draftsman to frame the section so as to cover that possibility.
But the draftsman is not a business man. This thing of receipts appears to me to vitiate the whole measure. It would seem to me that an inspector might require to know the details of a man's entire affairs, as distinct altogether from whatever he might be engaged in manufacturing. Under this section the details of the private business of any person could be ascertained.
All the inspector will require will be documents to verify entries and things of that sort.
The sub-section states "all invoices, consignment notes, receipts and other documents ... reasonably demanded by such inspector." I cannot see how a man's private affairs will escape.
This section is so defined as to give the owner of the premises a good defence.
A good defence? Did one ever hear the like of that?
Has the Minister any objection to inserting the word "solely," as suggested in amendment 143?
There seems to be doubt expressed amongst the people concerned as to what this will leave them open to. If there is no harm in it, I do not see why the word should not go in. Surely, there can be no objection to finding out whether its insertion will upset the whole drafting of the section?
It would be very bad English.
Do not give me any Act of Parliament as an example of good English, whatever else you do.
Or any legal document, for that matter.
Will the Minister consider the points we have made?
I will ask the draftsman about the word "solely" in order to see what limitation, if any, it will impose.
Amendments 142 and 143, by leave, withdrawn.
Amendment 144: In sub-section (4), paragraphs (a), (b) and (c), before the word "fails" where it occurs in lines 38, 40 and 43 to insert the word "wilfully".—Deputy Wolfe.
This amendment is governed by amendment 72.
It covers a matter we have already discussed—it was fully discussed on Section 30.
There was a somewhat similar amendment, but it was not in Deputy Wolfe's name.
This is a different matter.
From what the Minister said a short time ago I think it would meet his wishes if the words "wilfully or negligently" were inserted before the word "fails" in the appropriate places in this sub-section. I believe that would remove the anomaly of finding a man guilty of an offence and sending him to prison for six months while all the time he would be absolutely innocent of moral guilt. Take the case of a director going away. Before he leaves he takes every precaution to have the necessary forms filled. When he comes back he finds that he has earned for himself an additional leave of absence of six months at the public expense although he would be entirely innocent of any crime. Take the man who always keeps his own records and who becomes ill. When he recovers he finds that he has secured a cheap rest for six months although he is absolutely innocent of criminal intent.
I agree that the section must be stringent, but I think it is going a little bit too far to have it so drawn that a man may, without his knowledge or consent, commit a criminal offence. The probabilities are that he might have done everything possible to avoid that. I wonder what would the Minister say if he found a similar section inserted in the Constitution (Amendment) Act? I am sure there would be a good deal of trouble about it. I think it is a mistake to strain the law. There is a well-known principle that a man ought not to be found guilty of an offence of which he is, at all events, morally innocent. If, as I suggest, the Minister inserts before the word "fails" in paragraphs (a), (b) and (c) the words "wilfully or negligently" I think it will meet the case.
Amendment 146 is in the following terms:—
In sub-section (4), line 51, to insert after the word "person" the words "unless such failure, or such false or misleading entry is due to a strike, to a lock-out, or to any circumstance outside the control of such persons."
This amendment deals with the same idea, but it strengthens and explains what I have said in respect of amendment 144. I suggest to the Minister that he might safely accept the suggestion I made in amendment 146. Somebody might raid the premises and take away the records. One can easily imagine dozens of instances where a man, without any negligence, might be in such a position that he would fail to produce the documents required by the inspector. To make that man liable to imprisonment would be straining the criminal law to breaking point.
I think that point is governed by amendment 50—"unless he satisfies the court that such failure was attributable to circumstances over which he had no control."
I agree that if the Minister would put into Section 55 a clause similar to that in amendment No. 50 it would meet the case. It would be well that the same idea should not be expressed in two different forms of words. That would completely cover it. If you put the same tag on to Section 55 that you have put on to Section 26, it would meet that portion of the case. But I would still press for the insertion of the words "wilfully or negligently.""Wilfully" alone might raise difficulties, judging by what the Minister for Agriculture said in connection with another section. "Wilfully" alone might not be strong enough here, because negligence might not be wilful, and it is quite right that a man who is guilty of negligence should be held to be guilty of an offence under this section.
It is clear that the section as it stands does not take away the licence-holder's right to plead in the court that the omission to keep the record, or the other offences under (a), (b) or (c), was not done wilfully or was occasioned by causes outside his control. The court would take that into account, but what the Deputy's amendment would require would be that the prosecutor should prove to the court that it was done wilfully.
That is so. It places the burden of proof on the prosecution and it would be impossible to prove wilfulness in the matter.
I do not think that the Minister is taking me up correctly. If what the Minister states were so, I should agree with the Minister. Though the burden of proof in criminal cases is cast on the prosecutor, all the prosecutor would have to prove in this case would be that the accounts were not, in fact, kept. Once that were done, it would be for the defendant to rebut the presumption of wilfulness and to show that the omission was not, in fact, wilful. In practice, the onus would be entirely on the defendant.
It is clear that it is essential for the proper carrying out of the Bill that these records should be kept. There must be a definite onus on the licence holder to keep the records. It is not a matter about which he can be careless. He is liable to severe penalties if he fails to keep the records. If he is prosecuted for failing to keep them or for failing to produce them when required by the inspector, he can plead, in mitigation of his offence, that his action was not done wilfully or that it was occasioned by causes outside his control. No doubt, the court will take that into account. It is essential that he should keep the records. In the case of (d), which deals with the deliberate falsifying of records or the putting in of a misleading entry in order to defraud the revenue or to defeat the purposes of the Bill in some way, the onus should, undoubtedly, be on the prosecution to show that it was done wilfully. But in the other case, the mere failure to keep records for any cause should be an offence, even though the court might say that the circumstances were such that no penalty should be inflicted. It is the duty of the person who gets a licence and who is responsible for keeping records to secure that staff shall be provided or other arrangements made to prevent any mishap arising which would mean that the records would not be available for inspection, if required.
I am sorry if I have not made myself clear. I quite agree with what the Minister has said, but everything he has said will apply equally well if the words "wilfully or negligently" are placed where I suggest they should be placed. I ask the Minister to consider that because, at present, the section creates a very dangerous precedent. If the Minister will consider the matter, he will find that the view he has expressed will not be in any way affected by inserting those words. On proof being given of the omission, the defendant will have to show (1) that he did not do it wilfully and (2) that he did not do it negligently. For instance, it might be said that he had completely forgotten it. That would not be wilful but it would be negligent. If the Minister decides to put in those words, he will find that they will not interfere with the view he has expressed, with which I am in agreement, as to the desirability of having ample power in the section for compelling the miller to keep these records.
I am advised that the insertion of the words would have the effect I mentioned and would create considerable difficulties in the operation of the Bill. I am prepared to have the significance of the insertion of the words examined, but if it would have the effect of making more difficult the punishment of people who fail to keep records, it will have to be turned down.
The amendment I suggest would eliminate carelessness, because carelessness or forgetfulness would not be wilful, but would come under "negligence." In lieu of amendment 146, the tag to Section 30 should, I think, be added to this also. It reads better than the amendment I have drafted and would be in conformity with the wording in another part of the Bill.
I am not going to intervene in the legal aspect of the case, as to where the onus of proof lies. I was, however, under the impression, as an ordinary layman, that murder must be wilful but that when the killing of the man is proven, the burden is not on the State to prove wilfulness but on the prisoner to prove that it was not wilful. I suggest that that is an analogous case to the case with which Deputy Wolfe has been dealing. Though, to constitute the crime of murder, there must be wilfulness and malice, if the killing has been brought home to the prisoner, the onus rests on him to establish that there was no wilfulness or malice. That is precisely the point that Deputy Wolfe was arguing.
There is also the point that this must be done within twenty-four hours. In the twenty-fifth hour a man is liable to prosecution if it is not done. The question of staff arrangements arises, and it is quite possible that a clerical staff would be kept only on certain days of the week. The writing up of a register or journal or any of those books ordinarily kept would not constitute a defence, because the records must be kept in a form prescribed by the Minister. It seems unreasonable to prosecute a man for not having this done in twenty-four hours.
"Wilfully or negligently" might meet my point, but I should like to consider the matter.
There is the question about the short period allowed for the record.
I think that that has been extended.
Amendments 144 to 150, inclusive, not moved.
The following amendment was agreed to:—
151. In sub-section (5), page 25, to delete paragraph (d) and substitute the following paragraph:—
"(d) the expression ‘office hours' means—
(i) in relation to any day (not being a Sunday, a bank holiday, or a locally observed holiday or half-holiday), any time between the hours of ten o'clock in the morning and five o'clock in the afternoon during which business is being carried on or work is being done on the premises; and
(ii) in relation to any locally observed half-holiday, any time between the hours of ten o'clock in the morning and one o'clock in the afternoon during which business is being carried on or work is being done on the premises."—Minister for Agriculture.
Section, as amended, put and agreed to.
SECTION 56.
(1) The registers shall respectively be—
(a) deemed to be in the proper custody when in the custody of the appropriate Minister or of any officer of that Minister authorised in that behalf by that Minister; and
(b) admissible in evidence without further proof on production from the proper custody.
(2) Prima facie evidence of any entry in any register may be given in any Court or any legal proceeding by the production of a copy of such entry purporting to be certified to be a true copy by any officer of the appropriate Minister authorised in that behalf, and it shall not be necessary to prove the signature of such officer or that he was in fact such officer or was in fact so authorised.
(3) A certificate, purporting to be under the hand of an officer of the appropriate Minister authorised in that behalf by that Minister, that any person specified in such certificate is not entered in any specified registers kept by that Minister shall be conclusive evidence of the matters so certified, and it shall not be necessary to prove the signature of such officer, or that he was in fact such officer, or was in fact so authorised.
(4) Any person may—
(a) inspect any register on payment to the appropriate Minister of the fee of one shilling;
(b) obtain a copy, certified in manner hereinbefore mentioned to be a true copy, of any entry in any register on payment to the appropriate Minister of the fee of one shilling;
(c) obtain such certificate as is hereinbefore mentioned that any specified person is not registered in one of the said registers kept by the Minister for Industry and Commerce on payment to that Minister of the fee of one shilling;
(d) obtain such certificate as is hereinbefore mentioned that any specified person is not registered in one of the said registers kept by the Minister for Agriculture on payment to that Minister of the fee of one shilling.
The following amendments stood in the name of Mr. Wolfe:—
152. In sub-section (2), line 23 to delete the words "purporting to be."
153. In sub-section (2), line 24, to delete the words "by an officer" and substitute the words "under the seal."
154. In sub-section (2), to delete all words after the word "Minister," line 24, to the end of the sub-section.
155. In sub-section (3), line 28, to delete the words "purporting to be."
156. In sub-section (3), line 32, to delete the word "conclusive" and substitute the words "prima facie."
157. In sub-section (3) to delete all words after the word "certified," line 32, to the end of the sub-section.
Subject to your approval, sir, these amendments might be conveniently taken together because the same idea runs through them. In sub-section (2) a peculiar provision is brought in which I agree is not entirely without precedent. There is, I think, one precedent where the same course was adopted in what was looked upon as emergency legislation during the Great War (sub-section read). There is a rather dangerous precedent for that sub-section which, I suggest should not be followed and that the words "purporting to be" in line 23 should be deleted. I am also suggesting that in line 24 and the following lines the words "by an officer" should be deleted and " under the seal of the appropriate Minister" should be substituted; and that all words after the words "appropriate Minister" should be deleted. These are the three alterations I suggest. I do not know whether reliance will be placed on the precedent, which is the only one I know of, and which is one that I think ought not to be followed, having regard to the exceptional circumstances in which it was adopted. Personally I think it is very drastic. If any one is prosecuting on behalf of the Minister all he has to do is to write out the necessary certificate on a piece of paper, sign it with any name he likes and hand it in, and it is evidence. I suggest that instead of that the old procedure, which existed before the Great War, and which is followed in another portion of this Bill, should be followed here. It is in Section 28 (2) of this Bill and it follows the procedure of the Land Commission Court, and the procedure of all courts, so far as I know, prior to this unusual and emergency legislation. It is as follows:—
In any proceedings by the Minister under this section to recover any sum from the holder of a milling licence the production of a certificate under the seal of the Minister certifying that such sum is due by such person shall be prima facie evidence of the facts so certified.
I suggest that there is no reason why in this Section 56 the procedure adopted in Section 28 should not be followed. I suggest that it is inconsistent, and that to have in Section 28 one method and one procedure and have that reversed as regards a somewhat similar undertaking in Section 56 would be wrong.
Again in sub-section (3) there is an extraordinary provision which is contrary, I think, to all precedent (sub-section read). The certificate produced might be absolutely false and the man prosecuted might have absolute evidence that it was false, but whether he was registered or not it would be said that the man had no right to make a defence although he had one, because the certificate was evidence. I never heard of such a thing before. Section 28 as drawn, was obviously taken from the Land Commission precedent which is a fairer one. I suggest as regards sub-section (3) to delete the word "conclusive" and substitute the words "prima facie." To have it otherwise would be absolutely unconstitutional and there could be no answer to it, I submit. In Section 28 the position is that it is under the seal of the Minister. It is there and it remains there as prima facie evidence and can only be dislodged by counter evidence, which cannot be given only in a very few cases. Even Ministerial books are sometimes wrong and Ministerial records sometimes get lost. In some Land Commission cases I have known the records to be wrong through no fault of the Land Commission officials. That might also be the case with the Minister's records, through no fault of his officials. This is very drastic, more drastic than any legislation that has ever come before the House. It is not a good precedent and is not one that should be followed. I suggest to the Minister that in this section he should adopt the procedure which he has adopted in Section 28. It will be doing the right and the wise thing and will really do no harm to the prosecution and will do no harm to the Department. With regard to the other amendments, they deal with Section 34. I have dealt with the first six— 162 to 167 inclusive.
We did not go back as far as the Emergency Bill that the Deputy refers to. As a matter of fact the clause is an exact copy out of the Agricultural Produce (Eggs) Act of 1924. However, that is no defence for it, I suppose. The same clause, I believe, is in the Dairy Produce (Fresh Meat) Act.
The Agricultural Produce (Eggs) Act.
And that clause is taken out of it?
Yes. The Deputy should have been a little more active when the Agricultural Produce (Fresh Meat) Act was going through, because the same clause is there. A man might be hanged for having fresh meat on his premises just the same as under this.
He is bound to be, under this.
Clause 2 of Section 28 is in a different form and after the very able case the Deputy has made I think it would be worth considering putting it the same as Section 28.
Is sub-section (3) a copy of what is in the previous Acts, too?
You ought to have been able to improve on that.
Amendments 152 to 157 inclusive, by leave, withdrawn.
I move amendments 158 and 159:—
In sub-section (4) to delete paragraph (a).
In sub-section (4) to delete paragraph (b).
Amendment 158 deals with sub-section (4) and the amendment is to delete paragraph 4 (a). The paragraph reads:—
"Any person may—
(a) inspect any register on payment to the appropriate Minister of the fee of 1/-.
That is the clause which requires amendment. I suggest that it is a very tall order. There should be no objection to the Minister, for any purpose, granting leave to the parties interested to inspect the register, but the Minister has not yet issued his regulations, and there may be in his returns something that would be used by rival traders.
Section 46 tells you what is in it.
Even so, you have not made the regulations yet.
The name and address of the applicant and particulars of the premises, that is all would be on the register.
But under Section 46 you may make regulations. As I understand the position it is open—and properly open—to the Minister to make regulations, and from time to time he may find it necessary to get a considerable amount of information, for the proper working of the Act, which would be of assistance to rival traders. What useful purpose can be served by keeping Clause (a) of sub-section (4) in the Act?
We can only put in the name, address and particulars of the premises. That is all that can be put on the register.
Section 46, sub-section (1).
There is something more. "In accordance with the immediately preceding section, the appropriate Minister shall, subject to the provisions of the next following section, enter in such register the name and address of the applicant and particulars of the premises specified in such application." There is some portion of the Act I suggest that gives the Minister power to make regulations.
Yes, but not about what appears on the register.
The register may be inspected by anybody on payment of 1/-.
There may be on that register, under the regulations to be made by the Minister, information that would be of advantage to another trader or to competitors or other persons, and it is not intended, I should think, that the register under this Act should be used for the assistance of creditors or rival traders. I do not want to say the Minister is likely to make such regulations, still I know there is a feeling amongst millers that this clause will lead to abuse. What I fail to see is why this clause is there at all. What purpose can it serve? Who wants to inspect the register? Is it to be open to the Press to go in, and on payment of 1/- inspect and publish a man's business.
They will only see the name and address and description of the premises.
And such additional information as you may, by regulation, add.
If only the name and address are there, in the name of all that is wonderful, why would anyone want to look at that?
If they are willing to pay 1/- for looking at it why should we not take it?
If the only information to be got from the register is information as to the nature of the premises, will not all that be met under section (c), under which a person can get a certificate that a certain specified person is not registered.
A person might like to get the whole list of persons registered.
Let us consider the purpose of the clause. Can the Minister tell us how he envisages a person having that desire? What legitimate purpose is there for inspection of this register? That a person may want to see if an individual is on it? Is that right?
He can get that by asking the Minister to certify whether he is or is not registered.
The Minister can certify that he is not.
If the Minister refuses to give the certificate that a person is not registered clearly he is registered.
A maize importer can only sell maize to a registered maize miller. A maize importer might like to have a list of the maize millers, so that he would know, every time he got an order from a miller, whether he is entitled to deal with him. He would be entitled to have the whole list.
Under Section 46, in addition to any further regulations the Minister may make, he shall enter on the register "the name and address of the applicant and particulars of the premises specified in such application in respect of which such registration is sought." What business has the public of knowing that? Is not that a matter between the Minister and the Miller?
What purpose could be served by publishing particulars of a man's mill, and the clause might be used for very malicious purposes. I suggest that clause (a) serves no useful purpose.
Could the Minister not consider it from the other angle? Let him leave out the fact that he has put a certain thing into the Bill and has got to stand over that for the moment. Why ought the register to be open for inspection? Why ought a person to be allowed to inspect it? I say you cannot have busybodies running around and inspecting the register and the only purpose that is legitimate is that a man would want to know is he entitled to deal with a certain person. That will always arise, I suggest, in relation to a particular person. A man would want to know "may I deal with Mr. X, of a particular place?" Under (c) he can get a certificate as to whether a man is on the register or not. What else is required? What information is a man entitled to get? I can see the difficulty that a person does not know whether he is entitled to deal with a certain man. He ought to be able to get a certificate that such man is registered and that he is entitled to deal with him. He could get that under (c). What more does he want?
Which one are you objecting to?
I am objecting to (a) and (b).
Take the Eggs Acts, just to show the section was there. The fact that it was there perhaps induced the draftsman to put it in here. Even if it had not been in the Eggs Acts, there would be great necessity for it in this Act. A maize importer is not allowed to sell maize except to a registered maize miller. He must know whether the miller is registered or not before he will deal with him.
That is all he wants to know. Is a maize importer, under the Deputy's suggestion, to write up to the Minister every time he gets an order and say: "Is this man on your register or not?" It would be much more convenient for him to walk in and look at the register and get the whole list. In the same way with wheat dealers, and wheat importers, they can only deal with certain people.
Is not anyone of these people on the register entitled to get a certificate from the Minister stating that, under an earlier section?
I am going to deal with a certain man who wants to know if a person is registered. Could he not ask him to produce a certificate?
So the Deputy's way of settling the question would be for a maize importer to send his certificate every time to show he is registered.
Clearly the doubt is not going to arise every time.
What is the difficulty about this being in. The Deputy wants to raise all sorts of difficulties about anyone wanting to see the register of the list of names and address, and particulars. If anybody is curious enough, as Deputy McGilligan seems to think, and if there are a lot of curious people running around looking for information, why should we not take one shilling from them for their curiosity?
Amendments 158 and 159, by leave, withdrawn.
Section 56 agreed.
SECTION 57.
(1) The appropriate Minister may publish in such manner as he may think fit—
(a) all or any of the matters in any register kept by him; and
(b) notice of the cancellation or alteration by him of the registration of any person registered in a register kept by him.
(2) No individual return or part of a return furnished in pursuance of this Part of this Act shall be published or disclosed except for the purposes of a prosecution under this Act.
(3) The appropriate Minister may from time to time collect and publish such statistical information (including statistics derived from returns made to him pursuant to this Part of this Act) with respect to the extent of the business carried on by persons registered in any register kept by him as he may think fit.
Are not amendments 160 and 161 already covered by 34?
If they are covered in the sense that they are accepted, yes.
Then they are not covered. Amendments 160 and 161 stood in the name of Deputy Roddy:—
160. In sub-section (1), line 53, to delete the words "he may think fit" and substitute the words "is prescribed."
161. In sub-section (3), page 26, line 4, to delete the words "he may think fit" and substitute the words "is prescribed."
This is the same point as before—instead of leaving it to the Minister to publish in such manner as "he may think fit" that the Minister shall give notice to the House as to what he does think fit by having the matter covered by regulation. That regulation does not impose any limitation on the Minister. It only means he will notify the House of what he is doing.
Are amendments 160 and 161, by leave, withdrawn?
They do not refer, exactly, to the same things. Number 161 is in regard to statistical returns. On Section 57, I did not understand amendment 161 had been dealt with at all.
But I made objection to the two being put together.
If the Deputy wants to discuss 161 he can do so now.
Yes, because they have not by any means the same reference. Amendment 160 refers to the Minister publishing in such manner as he may think fit certain matters entered in the register. Then we come on to sub-section (3).
"The appropriate Minister may from time to time collect and publish such statistical information (including statistics derived from returns made to him pursuant to this Part of this Act) with respect to the extent of the businesses carried on by persons registered in any register kept by him as he may think fit."
Whatever is to be said for letting the minor matters of the manner in which these things are to be published be as the Minister thinks fit, surely there is a great point here—the collection of statistical material. If it were clear that this is governed by the secrecy which is imposed under the Statistical Act itself, then of course a certain amount of the anxiety would be cleared away, but I rather take it, that this is outside the Statistics Act, and that there is not the same secrecy imposed, and that the Minister might, therefore, err in his judgment and publish matters which would give away the extent of an individual's business—an event which of course we always guard against in the promulgation of any information so derived.
That is another point. It is not the point made by the Deputy's amendments. The mere prescribing of the form and manner in which information will be published will not safeguard the position, if, in fact, statistical information, which should not be published, will be published.
It will give the House an opportunity of seeking that if he so published it, it conflicts with the secrecy previously imposed. I would rather have the other situation brought about, that this is entirely governed by what was previously put in and definitely fought for in this House, the necessary secrecy with regard to statistical matters.
I will have the point attended to certainly.
Amendments 160 and 161, by leave, withdrawn.
Section 57 agreed.
SECTION 58.
(1) An inspector shall be entitled at all reasonable times to enter any premises entered in any register (other than the register of wheat growers) or the premises of any person who has made an application for registration in any such register in respect of such premises, and there do all or any of the following things, that is to say:—
(a) examine any wheat (whether imported or home-grown) flour, wheaten meal, maize, maize meal, home-grown cereals (other than wheat), offals or screenings of wheat or other cereals, maize meal mixture or compound feeding stuff, found on such premises and take reasonable samples of such wheat, flour, wheaten meal, maize, maize meal, home-grown cereals (other than wheat) offals, or screenings of wheat or other cereals, maize meal mixture or compound feeding stuff, and
(b) if such premises are not registered in the register of distillers or are not the subject of an application for registration in such register inspect all or any part of such premises and the equipment, appliances and fittings therein.
(2) Any inspector shall be entitled at all reasonable times to enter upon any premises entered in or the subject of an application for entry in the register of wheat growers and to inspect all or any part of such premises or the crop of wheat growing or grown thereon or the produce of such crop.
(3) Every person who shall obstruct or impede any inspector in the exercise of any of the powers conferred on him by this section shall be guilty of an offence under this section and shall be liable on summary conviction thereof in the case of a first offence, to a fine not exceeding five pounds or, in the case of a second or any subsequent offence, to a fine not exceeding ten pounds.
(4) An offence under this section if committed on premises entered in or the subject of an application for entry in the register of flour importers, or the register of distillers may be prosecuted by or at the suit of the Minister for Industry and Commerce as prosecutor, and if committed on any premises entered in or the subject of an application for entry in any other register may be prosecuted by or at the suit of the Minister for Agriculture as prosecutor.
(5) In this section the expression "an inspector" means—
(a) in relation to premises entered in or the subject of an application for entry in the register of flour importers, or the register of distillers, an inspector of the Minister for Industry and Commerce, and
(b) in relation to premises entered in or the subject of an application for entry in any other register, an inspector of the Minister for Agriculture.
Amendment 162 is governed by the previous arrangement. I move amendment 163:—
In sub-section (1), line 5, after the word "times" to insert the words "during office hours."
No. 163 is "during office hours." Is it being taken that way? Am I to understand the Minister is accepting 163?
An inspector must be entitled at all reasonable times to enter a flour mill. Flour mills work three shifts a day, but office hours are defined from 10 to 5. An inspector must be entitled to enter flour mills any time the mill is working.
Why not say during either office hours or any other hours in which the mill is, in fact, working?
All reasonable times would cover it.
We have in No. 151 "reasonable hours" during which business is carried on.
That is put in by the Minister.
That is, amendment 151. That only relates to office hours. The phrase "all times" is indefensible.
If you were to enter at a time the mill was not working you could be accused of housebreaking.
I am getting quite a number of legal defences from the Minister for Agriculture.
Can we get any sort of authority for that—that any attempt to enter a mill when the mill is not working is to be regarded as housebreaking?
If an inspector tries to get into a mill when the doors and windows are locked he certainly would be accused of housebreaking.
And there would be no penalty on the person who has not been there to let him in during those hours? That is a better situation. It is not in the section.
A person is not compelled to stay there all night to let our inspector in.
I understood that the Minister for Industry and Commerce objected to the phrase "during office hours"?
Because the office hours and the working hours in the case of a mill are different.
Would the Minister agree to "during office hours" or, "alternatively, during working hours," the hours when, in fact, the mill is working?
I think that is what is in the Bill.
And if I produce an amendment on Report Stage, is it likely to be accepted?
It is not a question of reading, man.
Very good. Leave it over.
I take it that that covers No. 165.
I move amendment 164:—
In sub-section (1) (a), lines 14 and 19, to insert after the word "mixture" the words "raw materials for the manufacture of compound feeding stuffs."
Raw materials for the manufacture of compound feeding stuffs were omitted. They should be inserted.
Amendment 164 agreed to.
Will amendment No. 165:—
In sub-section (2), line 25, after the word "times" to insert the words "during office hours"
be considered?
If it is put in one place it will be put in in the other.
Does the Minister think so? I should think not, if consideration is given to it. This refers to wheat growing. What are the office hours or the reasonable time for growing wheat, except growing it in glass houses as before?
If the Deputy wants to put in the term, he can try.
Amendment 165, by leave, withdrawn.
Amendment 166 not moved.
Amendment No. 167 is not moved. It is covered by No. 162.
There is this appeal always.
Yes, so the legal authorities say.
Do not weaken that first statement.
Section 58, as amended, agreed to.
SECTION 59.
(1) The appropriate Minister may, at any time, alter or cancel the registration of any person in any register kept by him upon the application of such person, or, in the case of an individual, his personal representative or, in the case of a body corporate, the liquidator.
(2) The appropriate Minister may at any time without such application as aforesaid alter any registration in any register kept by him in any respect in which such registration appears to him to be erroneous or misleading.
(3) The appropriate Minister may at any time without any such application as aforesaid cancel any registration in any register kept by him if he is satisfied that—
(a) the registration was procured through fraud or by misrepresentation whether fraudulent or innocent; or
(b) the person registered in such register has ceased to carry on the business in respect of which he was so registered; or
(c) the person registered in such register, if an individual, has died, or, if a body corporate, has been dissolved and no other person has within one month after such death or dissolution, been registered in the place of the registered person so dead or dissolved; or
(d) the person registered in such register has been adjudicated a bankrupt; or
(e) the person registered in such register has been convicted of an offence under this Act.
(4) Before altering or cancelling (otherwise than in accordance with an application in that behalf made under this section) the registration of any person, the appropriate Minister shall give at least one fortnight's notice in writing to such person or his personal representative (if any) or its liquidator (as the case may be) stating his intention so to alter or cancel such registration and the reasons therefor, and shall consider any representations made before the expiration of such notice by such person or personal representative or liquidator (as the case may be) and may, if he thinks fit, cause an inquiry to be held in relation to the matter.
(5) A notice of the appropriate Minister's intention to cancel or alter a registration may be served by delivering it to the person to whom it is addressed or by sending it by post to the person to whom it is addressed at his last known place of abode.
(6) Where the registration of any person has been cancelled under this section (otherwise than at the request of such person) by the Minister for Industry and Commerce the following provisions shall have effect, that is to say:—
(a) that Minister may, without notice, cancel the registration of such person in any other register in which he is registered under this Part of this Act and kept by such Minister and may at any time thereafter refuse to register such person in any register kept by him under this Part of this Act,
(b) if such person is registered in any register or registers kept by the Minister for Agriculture under this Part of this Act, that Minister may without notice cancel the registration of such person in such register or registers or any of them and may thereafter refuse to register such person in any register kept by him under this Part of this Act.
(7) Where the registration of any person has been cancelled under this section (otherwise than at the request of such person) by the Minister for Agriculture the following provisions shall have effect, that is to say:—
(a) that Minister may without notice cancel the registration of such person in any register in which he is registered under this Part of this Act and kept by such Minister and may at any time thereafter refuse to register such person in any register kept by him under this Part of this Act,
(b) if such person is registered in any register or registers kept by the Minister for Industry and Commerce under this Part of this Act, that Minister may without notice cancel the registration of such person in such register or registers or any of them and may thereafter refuse to register such person in any register kept by him under this Part of this Act.
Would the Minister say if there are enough inspectors in the Department to carry out all the purposes of the Act or will there be some new jobs created?
We are to have two extra inspectors.
There are quite enough inspectors in existence?
Why not have some Fianna Fáil Deputy showing interest in this Bill?
Is it being sympathetically considered?
If it had been moved, we might have considered it sympathetically.
Well, we will discuss it on the section.
Amendment 169 is covered by amendment No. 104.
What is the situation with regard to this amendment?
It is the same point that we discussed before.
We are to assume that all corporations are in liquidation?
A liquidator cannot be appointed for a corporation unless it is in liquidation.
Amendment 169 not moved.
I move amendments 170 and 171:
170. In sub-section (2), page 26, line 59, after the word "which" to insert the words "the person registered agrees that."
171. In sub-section (2), lines 59-60, to delete the words "appears to him to be" and substitute therefor the word "is."
The reason I move these amendments is that it seems to me that the person registered ought to have some say in the matter of the alteration of the registration. I do not think it is right that the Minister should have power to alter without reference to the persons concerned. I do not think there is any use in arguing it further but it appears to me that it is a desirable amendment.
I do not think these amendments are necessary. As the sub-section stands it sets out the common form that is used in all other Bills.
We are not discussing any Bill except this and let us keep to it.
The Deputies need not be repudiating their past like that.
The Minister is to be the judge of whether the registration is misleading or not?
We want a statement from the Minister on this amendment.
Are the amendments being withdrawn?
They are apparently being accepted.
What is the attitude of the Minister on them?
Is there any answer to them except tradition? We might as well debate them, if they are not going to be replied to. At the moment, the proposal is that the Minister may alter any registration and any register in any respect in which such registration appears to him to be erroneous and misleading. Deputy Bennett moves to change that and to prescribe that the Minister may alter it where there is agreement, after notice given to the person registered, that the entry is in fact erroneous and misleading. Why object to that? If it is a matter of fact that can be shown to the person, surely he will be as anxious as the Minister to get a correct entry made? Why not have it done with his approval? That is all that Deputy Bennett sets out to have.
The Minister must have the final word.
Who is responsible for the registration—the person who moves in the first instance?
The Minister is responsible for the register.
For keeping it; but for supplying the information, it is the person who has asked to be registered.
The argument that the Minister must have the final word will apply whether the entry was erroneous or misleading or not.
Amendments 170 and 171, by leave, withdrawn.
Amendment 172 not moved.
I move amendment 173:—
In sub-section (3) (a), line 65, to delete the words "whether fraudulent or innocent".
I respectfully suggest to the House that the provision in this section is one which is absolutely without precedent, and that it is an innovation to put into a statute a declaration that "registration was procured through fraud or by misrepresentation whether fraudulent or innocent." I submit that if a man makes an estimate as to the height of a house, or as to its width, and if he makes a mistake, that would be an instance of misrepresentation, and in that case the Minister might cancel his registration. Such a provision is entirely without precedent and in the best interests of the State should not be allowed to stand.
In the first place, it is not without precedent, as we can refer to a decision in this case also. The fact is that this provision has been adopted word for word from the provisions of Acts passed by this House. I believe the sub-section is there in order to ensure the accuracy of the records. If, in fact, registration was secured by fraud or misrepresentation, whether such misrepresentation was fraudulent or innocent, the Minister should have power to revoke the registration. That is all that is implied.
Is this a willing or an unwilling tribute to the last administration?
The fact was merely referred to to show that the Deputy was wrong in saying that it was a precedent.
Is the amendment withdrawn?
Surely not. I want to ask if the words apply to misdemeanours, or only to the last phrase. If the phrase is going to be kept it is better to have it drafted so as to be clear as to the meaning. How could you have an innocent fraud? If it is only to apply to misdemeanour or misrepresentation, is there any equity at all in taking power to cancel a registration, where the Minister is satisfied that the misrepresentation has been innocent?
Surely the Deputy considered that when he decided to support the Eggs and the Butter Acts?
I did not support them with this phrase.
Section 10 (3) of the Agricultural Produce (Eggs) Act says:
The Minister may ... cancel the registration of any premises ... if he is satisfied (a) that the registration of the premises was procured by fraud or by misrepresentation, whether fraudulent or innocent.
The Government of which the Deputy was a member passed that Act.
The Minister says I supported it. I want to have some evidence given of that.
As no evidence is given, well and good, we will take it that way. What were the circumstances of the Eggs Act? Was the licence or the registration of the premises to be withdrawn? Were they the only premises a man had? Was it with regard to the export business in eggs or what? When we know these things we will know what the circumstances are. We will know further whether this particular phrase had the approval of the representatives of the industry. Then we will understand if there is equation, and the claim why it is there. It should not be there, if it is there under circumstances at all comparable to this, because a man's livelihood, and the premises he has got registered, may be broken on the definite statement of the Minister, that there has been innocent misrepresentation. That is beyond the bounds of all justice, and no check by the Government is going to have the slightest effect. That is not justice in this Bill.
I am moved by the Deputy's remorse, and I am accepting the amendment.
Amendment agreed to.
Amendments 174 and 175 not moved.
The following amendment (176) was on the Paper:
In sub-section (3), (e), page 27, line 12, to delete the words "of an offence under this Act" and substitute therefor the words "twice of offences under this Part of this Act both of which convictions relate to offences committed in the carrying on of the same business in respect of which he is so registered and both of which convictions have resulted in penalties being imposed under Part I of the First Schedule to this Act."— (Deputy Bennett.)
That is governed by amendment 83, which was not moved.
They deal with quite different things. Because an amendment in similar language has been put down it by no means follows that they are the same kind.
They appear to be remarkably similar.
They appear to be similar but there is power of appeal applicable to a different registration.
The object is the same, to remove an injustice, but it is not applicable to the particular section here related. If the amendment is not going to be moved I will speak on the section.
Amendment not moved.
The following amendments stood in the name of Deputy Wolfe:
At the end of sub-section (3) (e), page 27, line 12, to add the words "and the court has recommended such cancellation."
At the end of sub-section (3) (e), page 27, line 12, to add the words "and the court has certified that the offence is a serious one warranting cancellation."
At the end of sub-section (3) (e), page 27, line 12, to add the words "and the said conviction has not been appealed against, or, having been appealed against, has been confirmed on appeal."
I move amendment 177.
The witnesses will be before the court, and the District Justice, or the Circuit Judge on appeal, will have an opportunity of judging on the facts, the guilt or the innocence of the defendant I think it would not be unreasonable to give the Justice power to make a recommendation. He has the sworn testimony and hears both sides, and all that can be urged on behalf of the appeal, so that a man will have a fair trial. If that is not done, and if a man is tried in Dublin behind his back he will not be satisfied. He cannot be blamed for that. I think the first amendment might be usefully accepted. As to amendment 178 I think the wording there provides an alternative. As a safety valve I suggest inserting the words in amendment 179. It would be manifestly unfair for a man who gets the right of appeal under Section 18 of the Courts of Justice Act, on the one hand, to have it taken away on the other hand, if pending the hearing of the appeal he loses his licence.
Was amendment 179 discussed on amendment 122 to Section 53?
That is not the same. This is a matter which has been argued before with regard to the licence for flour millers, I think. It was pointed out by the Minister for Industry and Commerce that the Minister had power to alter, or cancel, registration in case the Minister is satisfied of certain things, amongst them that the registered person has been convicted of an offence under this Act. Deputy Wolfe wants us to give power to the court to decide whether it should be removed or not. The second amendment is similar and the third amendments asks us to hold off for an appeal in case there should be one. I do not think that the court would be the best tribunal to decide whether the person should be removed from the register or not, because that would be a matter for the Department concerned. Whether there was a considerable amount of laxity on the part of the person, or whether the offence was a serious one as far as the carrying out of the Act was concerned would be a matter for the Department, and I submit that a Judge would not be in the position to judge whether that person should be removed from the register. He would not be as well qualified to give an opinion on that matter as the officials working the Act. Therefore, I think that the Minister should have complete power to remove a person from the register or to cancel his registration or take whatever other action would seem to him fit and proper.
I intended to say that a person should be convicted twice, because as it stands the effect would be that the Minister should have power to remove a person off the register because of trivial offences. I think that amendment 177 would provide for that contingency better by adding the words "on an appeal." I think that that would meet the case, and I suggest that the Minister should accept Deputy Wolfe's amendment 179.
That would mean accepting amendment 177 with it. I would say that amendments 177 and 178 are alternatives. I think it is wrong to suggest, as has been suggested here, that an official of the Department is a better judge of the circumstances than the district justice who has heard all that has been said and has taken the testimony on oath of the accused and the other persons concerned. I suggest that it is a tall proposition to state that a clerk in a Dublin office is better able to decide the question than a district justice, or that a district justice would not be as competent or would be more likely to be swayed by certain circumstances. I, for one, will not believe that of any district justice. They are a very competent tribunal, and I think it is better for all of us, who wish that the law should not only be observed but that the people should have confidence in it, that such matters should be left for the district justices. I would respectfully press this amendment and ask the Minister to give the district justice the power of cancellation and not let the matter go without trial, because that is what it will mean for the man who is charged and who will not get proper facilities for defending himself.
It is not done without trial under that particular clause. Under that clause it says that the man "has been convicted of an offence." That means that the case has been tried.
That may be, but that might mean that he had been found guilty of some trivial offence and fined, perhaps, sixpence. Surely, the district justice is the better judge of the truth or falsehood of the testimony? He has the opportunity of seeing the witnesses examined and hearing their testimony, and he is in a much better position to judge all the facts of the case than any official of the Department. If the Minister adopts the amendments, this work will be taken off the officials of the Department and that could be brought about by the adoption of amendments 177, 178 and 179. I would, therefore, press for these amendments.
They would not come before the court without first being subjected to the Minister. If that is so he will have his own office and numerous inspectors, and any decision will be subject to, and influenced by, any ruling made by the Minister on the matter.
The Minister said, in answer to Deputy O'Neill, that all prosecutions would be under his supervision.
I did not say that. Deputy O'Neill said would I not be consulted.
The Department of Agriculture would report to me.
Is the Department of Agriculture the only person, or body, to prosecute? There is a clause here that any suit instituted under this may be prosecuted "by or at the suit of the Minister for Agriculture as prosecutor." Does that preclude anybody else from prosecuting?
The Minister may not be a lawyer, but there are plenty of lawyers whom he could consult— there are plenty of lawyers here—but that is not an answer. The Minister is responsible for the Bill, but the Minister is in the invidious position of putting through a technical Bill such as this which is imposing a number of new offences in law, and surely a Deputy is entitled to ask whether anybody else is precluded from setting a prosecution in motion under this Bill?
How does that arise on this motion?
It arises in this way —that we have been told by the Minister that prosecutions in this connection will only be instituted by him.
I want to repeat that no inspector of mine will institute a prosecution without consulting me.
We do not know whether other people may prosecute but if other people may prosecute, then the Minister has nothing to do with it and therefore the supervision which the Minister can exercise over his Departmental inspectors will not be exercised over outsiders. Therefore he will have no control.
I have control over the inspectors.
The other people may prosecute. At least we will have to assume that they can until we get a definite statement that they cannot until we get some clarification of the position. The Minister has made the point that there has to be a conviction. Deputy Wolfe has pointed out that any offence under the Act may have been marked by the particular district justice who tried it as a slight offence by the fact that he imposes a very slight penalty indeed. Nevertheless powers are given to the Minister to withdraw, alter or cancel registration.
Let me refer again to the Control of Manufactures Act, Section 10 of which states the conditions under which a new manufacture licence can be revoked. I think it will be recognised that a new manufacture licence is a licence given to people who up to, or prior to, a certain date have not been living in this country. Definitely a new manufacture licence under the Control of Manufactures Act will be in the hands of foreigners, non-nationals of this country. With regard to non-nationals in this country who have entered on a new manufacturing process after 1932, the Minister may on the application of the holder revoke. The Minister without such application may revoke if the holder of such licence —here is the phrase—"has been convicted of a serious offence under any section of this Act." The third sub-section winds up by saying "shall not revoke or alter a new manufacture licence save under and in accordance with this section." That is what we laid down in regard to, as I say, foreigners coming in to manufacture in this country for the first time after this Bill became an Act. Outside revocation on application made, there is only power given to revoke or alter if the holder has been convicted of a serious offence under the Act. Here we have "convicted of an offence."
Let us look at some of the offences. Section 53 ordains that the Minister for Agriculture may make regulations in regard to any of the returns to be made to him by registered wheat importers, registered maize millers, registered maize importers and registered manufacturers of compound feeding stuffs, the time at which such returns are to be made and the forms in which such returns are to be made. Then it goes on to say that:
Every person required by regulations made under this section to make any returns who fails or refuses to make such returns, in accordance in all respects with such regulations, shall be guilty of an offence under this section and shall be liable on summary conviction thereof to the penalties mentioned in Part II of the First Schedule to this Act.
We have it now that that is an offence that would be absolutely put out of consideration if the phrase used in this were a phrase corresponding to that used in the Control of Manufactures Act—"convicted of a serious offence." It would be in very exceptional circumstances that any court would hold, I think, that failure to make returns up to a certain time or in a certain form would be a serious offence. Consequently it would not be possible to have registration cancelled or altered because of a breach of the Act arising under sub-section (3) of Section 53. It is possible here. It is undoubtedly somewhat better than the phrase under this sub-section (a) because it is only the Minister's satisfaction that operates under sub-section (a)—the Minister's satisfaction with regard to such things as fraud or misrepresentation. Here we have it down that there has to be a conviction but it may be a slight conviction.
In that connection, I feel that right through the Bill the sections and the different parts were drawn up without there being any proper relationship between the parts. A section that, in what we might call its framework, compared with this was Section 32. Section 32 has the phrase "he is satisfied" as the governing phrase only with regard to fraud or misrepresentation but that phrase does not govern the phrase comparable with the one we are discussing—that the holder has been convicted of an offence under the Act. In this, the phrase "he is satisfied" has to govern everything. Is that deliberate? In other words, are we going, in regard to cancelling or altering the registration, to have the mind of the Minister operating on the point as to whether or not there has been a conviction? There is something to be explained in the peculiar position of the words.
I wonder is the Minister following the point I am making. In Section 32, sub-section (2), the phrase is clear and distinct "if the holder of such licence has been convicted." The phrase "he is satisfied" does not come in. That is, in this, the phrase "he is satisfied" is not applicable to the separate paragraphs but governs the whole lot of them. Has it any meaning more than what was intended to be given under Section 32? Unless it is a sort of mistake in the drafting—the fact that the point has not been appreciated and is going to be cleared up—it looks as if there is deliberation about this and the deliberation can only have the result of bringing in the mind of the Minister to operate on that very point—as to whether or not there is a conviction. What I mean can possibly be better understood if I put it this way, that previously under the circumstances to which Section 32 referred, the revocation of a milling licence, unless a court was satisfied that there was a conviction there would not be an offence and a conviction could only be proved by the production of the court order. In this it is for the Minister to say "I am satisfied there is a conviction." Again I ask the Minister to say whether there is any deliberateness in that and whether he is satisfied that the phrase is applicable only as it is in Section 32 to fraud or misrepresentation. Would the Minister answer that point?
I am afraid this is a direct copy of the other Acts.
That does not seem to be a sufficient justification for having the mind of the Minister interposing as to whether there is a conviction. There should be some evidence other than the Minister's certificate that he is satisfied.
I move to report progress.
Progress reported, Committee to sit again to-morrow.
The Dáil adjourned at 10.30 p.m. until Friday, 25th November, at 10.30 a.m.
