Dáil Éireann díospóireacht -
Thursday, 22 Feb 1945

Vol. 96 No. 5

Customs (Amendment) Bill, 1945—Committee Stage (Resumed).

Minister for Finance (Mr. O Ceallaigh)

I move amendment No. 4:—

Before Section 9 to insert the following new section:—

A judge of the Circuit Court may, on the application made, before judgment is delivered, by any party to an appeal pending before him under Section 9 of this Act, refer any question of law arising in such appeal to the Supreme Court by way of case stated for the determination of the Supreme Court.

Section 22 of the Courts of Justice Act, 1936, provides for reference by way of case stated to the Supreme Court by a judge of the Circuit Court of any question of law, on application by one of the parties to the matter, provided that all other parties to such matter consent. That is the law at present. In view of the many complex questions of customs law which arise from time to time, which widely affect the general public, it is desirable that such reference by way of case stated may be allowed on application by any of the parties to the matter and thereby to avoid the impasse that would ensue should one of the parties interested refuse consent and so hinder the proper elucidation of the position.

Mr. Coogan

The Minister has not given us any explanation for the insertion of this amendment at this stage. We thought in a matter of this kind it would have appeared in the original draft of the Bill. The same arguments apply to this, more or less, as apply to the insertion of the proposed new Section 9. We feel that the ordinary citizen is being deprived of certain rights which he held heretofore. In the ordinary case, if a citizen were charged with a customs offence heretofore and succeeded in getting a dismiss, either on the merits or without prejudice, that was an end of the matter and the State could not appeal to the Circuit Court or to a higher court. Here we have a new position being created where the State is taking to itself the right to bring the citizen not only to the Circuit Court on appeal, but if necessary on a point of law to the Supreme Court. We feel the procedure is unduly weighted in favour of the State; that the citizen, who is very often a poor man, will be put to enormous expense to test his rights if these provisions are inserted.

My principal objection to the insertion of these amendments is that we are now deciding that customs proceedings are criminal proceedings and, in the ordinary course of criminal proceedings, no such right exists on the part of the State. We are here introducing a new and, to my mind, a vicious principle against the rights of the citizen. The position is not at all clear at the moment whether or not customs proceedings are criminal proceedings. Undoubtedly, in O Croinin's case it was decided that they were civil proceedings. In the case upon which the Minister is basing these amendments, the Gethings case, that was clearly a case of an offence against an emergency Order made under the Emergency Powers Act of 1939 and the Supreme Court did decide that proceedings under that Act were in their nature criminal proceedings. But that is entirely a different matter from deciding that customs proceedings are criminal proceedings. Apparently, the State is taking advantage of the decision in the Gethings case to insert this provision into this Bill, solely on the ground that the Bill prohibits the exportation of certain classes of goods. Beyond that analogy there is no analogy whatever between the two types of proceedings and I hold it is wrong and unreasonable and unjust to the citizen who is charged with a criminal offence to deprive him of his rights.

Mr. O Ceallaigh

There is nothing in this amendment about that, Deputy.

Mr. Coogan

But this is part and parcel of the other proposals; it ties with No. 3.

Mr. O Ceallaigh

There is no relation.

An Ceann Comhairle

No. 3 was decided yesterday.

Mr. Coogan

If there is an appeal taken by the State to the Circuit Court, before judgment is delivered in that case the State may take the citizen to the Supreme Court and I hold that is an undue weighting of the procedure as against the citizen. When we take into account the fact that under this Bill the revenue authorities have got extraordinary powers to bring suspect smugglers to justice, we feel that it is an additional injustice to pile this provision on top of citizens.

Mr. O Ceallaigh

There is no compulsion of any kind suggested here. All we are doing is giving the citizen an additional right as well as giving the State the same right. Heretofore, the ordinary citizen could not take a case to the Supreme Court, unless everybody in the case agreed, but here the citizen is given the right to go there without the agreement of the other party. The State will also have the same right. This gives to the citizen a right which he did not have before, a right which, it seems to me, it is proper the citizen should have. He need not go there if he does not wish. We are not asking anybody to make any compulsory law. He is given the right and privilege of going to the Supreme Court, if he is so inclined, without asking anybody's leave, whereas, heretofore, he had to get the consent of the other parties to the case before he could do so.

Mr. Norton

Would the Minister say what inspires the State to give him that right in this case?

Mr. O Ceallaigh

The customs law is an intricate and difficult law. It is full of tangles of all kinds and we are as interested as any other Party in the State in getting a clear declaration from the highest law authority in the land as to what is the law. Heretofore, neither the State nor the ordinary citizen could go to the Supreme Court unless everybody agreed. We now leave it open to the State or to the citizen to go there, if either the State or the citizen so wishes.

Mr. Coogan

The Minister, of course, is begging the question when he says that. It is a fact that appeal to the Supreme Court under Section 22 of the 1926 Act could not be taken, except with the consent of both parties, but in this case you get one party into the Circuit Court on appeal under the provisions of the previous section when you could not have got him there before. It is not a fair comparison. You have got him there against his will, as it were, on appeal, against the rights he heretofore had. You could not have got him there without this provision and you are depriving him now of that right.

Mr. O Ceallaigh

We do not deprive anybody of any right by this amendment. We are giving additional rights. That is a plain statement of fact. We are giving additional rights to everybody concerned—the State and the private citizen.

Mr. Coogan

The position is that it is the complainant who has the right of appeal under amendment No. 3.

Mr. O Ceallaigh

The State or the citizen will have the right to appeal.

Mr. Coogan

You are giving the complainant that right. You have him in court and you want to open the door wider and put him to the expense of a Supreme Court hearing.

Mr. O Ceallaigh

Everybody gets the same right—the State and the citizen.

Mr. Coogan

It is like getting a person into jail and telling him that he has the right to appeal to the Minister to get out.

Amendment put and agreed to.

Sections 9, 10 and 11 agreed to.

SECTION 12.

Mr. Coogan

I move amendment No. 5, in the name of Deputy McGilligan:—

Before Section 12 to insert the following new section:—

(1) This Act may be cited as the Customs (Temporary Provisions) Act, 1945.

(2) This Act shall continue in force until the thirty-first day of March, 1948, and shall then expire.

In introducing the Bill, the Minister said that there was an extraordinary state of affairs on the Border and that the House did not appreciate the seriousness of the smuggling problem; but, in support of that argument, he did not give us any figures of the offences of smuggling detected in any given period on the land frontier, nor did he give us any statistics to show the degree to which that smuggling is taking place at present. Extraordinary powers are conferred by the Bill upon the revenue officers. They have all the powers of stopping, searching and questioning. There is also the extraordinary position that where a person is suspected of committing an offence, the onus of proving his innocence is placed upon him, and also the extraordinary position that an attempt at an offence is defined to be an offence and the citizen is more or less put in the position of having to explain the inner workings of his mind to the revenue officers.

These are very extraordinary powers to confer on any State department, and we feel that, having regard to the drastic nature of these powers, they should be given, if at all, only for a limited period. We say that that period should be the duration of the emergency. Apart from that aspect, there is the position that a good deal of the present day smuggling is of a temporary character. It arises from the fact that certain goods are in short supply on either side of the Border, and it is probable that that state of affairs will disappear with the ending of the emergency period. We feel that that is an additional argument for the acceptance of this amendment, which proposes that this measure shall continue in force until 31st March, 1948, and shall then expire. That date has been taken as the date which will probably see the ending of the emergency period. Powers such as are contained in the Bill should not be granted by the House, except in extreme emergency and for the duration of that emergency. We have no objection to giving the powers, provided they are limited in their operation to the duration of the emergency.

Mr. O Ceallaigh

Something could be said for the Deputy's point of view if we were satisfied that prohibitions against goods leaving this country were likely to disappear at the end of the emergency, but, as a matter of fact, we had prohibitions against the exportation of quite a considerable list of goods before there was any thought of an emergency. I think I would not be wrong in saying that when the emergency is over that list will be very considerably extended, and extended not for a short period but may be for quite a long period—possibly for many years after the emergency is over. There was quite a variety of articles whose export from this country was prohibited before the war in Europe arose at all and there was always some attempt at exportation of these articles. That list, during the emergency, as the Deputy has properly said, has grown considerably, but even though it has grown considerably, and probably will be reduced when the emergency ceases, it will remain and will be much longer than it was before the war. So that the powers we ask for here extend the law relating to smuggling goods into the country. We want the same law to apply to goods smuggled out of the country as applies to the smuggling of goods into the country. That is all we are doing in this Bill. We want the same law to apply to the exportation of prohibited goods as now applies, and has applied since the State was established, to the importation illegally of goods. That will be necessary, not for a year or two or three years after the emergency, but probably, whatever my lifetime is, it will be required that length and maybe for the lifetime of others who are much younger than I am.

Mr. Norton

This is emergency legislation, quite clearly.

Mr. O Ceallaigh

Not necessarily.

Mr. Norton

Not necessarily, quite. This is mainly emergency legislation and has been conceived very largely out of a recognition of what is happening during the emergency, but I do not think we should allow an emergency condition such as we are now passing through completely to colour our outlook in regard to the codification of the law in relation to smuggling. I know the Minister is too old and too sagacious a politician to imagine that this Bill or any other Bill will end smuggling.

Mr. O Ceallaigh

What does the Deputy mean by saying "too old"? Too old for what?

Mr. Norton

Too old in sagacity, too young to be a President. But I put it to the Minister that smuggling has thrilled schoolboys in all climes and in all generations. Not if we sit until doomsday will we pass a Bill which will prevent smuggling. That is the kind of thing we have to provide for every day, just as we have to provide for dressing and washing every day. The State is taking very unusual powers in this Bill. In the amendment which the Minister introduced last night, the State has got very unusual powers, powers which I would not like to see written into our permanent legislation unless we were likely to be confronted with that kind of menace permanently, and I am not too sure that we are likely to be so confronted with that type of menace.

Yesterday evening when discussing an Estimate in relation to the Department of Justice, the Minister for Justice told us that, while there was a good deal of crime at present, he did not think it right to appoint permanent judges to deal with the abnormal amount of crime to be dealt with because he said that he felt that after the emergency a lot of this crime would pass and there was no use in piling on to the pay-roll permanent judges, when the condition of affairs was transitory. Apparently, he preferred the almost unconstitutional procedure of appointing what are really removable judges, who are responsible to the executive Government and who can be removed if the executive Government do not like them or get tired of them.

We are writing into our permanent legislation here certain restrictions which I do not think ought to be regarded as permanent and I think the amendment gives the Minister a very convenient way out. In other words, it says that this Bill, when enacted, will operate until 1948. We will all be older and wiser then. We will have a better idea of the kind of problems that have to be dealt with in regard to smuggling. I think the Minister might very well accept the amendment and say: "All right. The State, my Department, and particularly the Revenue Commissioners, will serve three years' apprenticeship in this matter and, at the end of 1948, we will come back to the Dáil and tell the Dáil what our experience of the past few years has been and, if necessary, ask the Dáil to continue the legislation."

May I draw the Minister's attention to this fact? In 1939 we passed what is probably the most revolutionary Act that has ever been passed by this Dáil, namely, the Emergency Powers Act, which, in a whole lot of ways, supersedes the Constitution, which takes away a whole lot of rights the citizen normally had and which he could exercise under the Constitution. We were satisfied to put that Act on a yearly basis. Each year we renew that Act. It expires in September and in the month of June or July the Taoiseach comes along and says: "We have to continue this for another year." That Act is the basis of the State's existence and its capacity to function in the circumstances in which the State finds itself. If we can renew the Emergency Powers Act from year to year, the Minister is getting very considerable liberty in being allowed to continue this Bill for three years and I suggest he might very well accept the amendment and come back at the end of three years and tell us what the experience has been and then ask us to pass some kind of customs law which will deal with whatever circumstance the Minister has to deal with. Meanwhile, the Minister's hands are not tied.

Mr. Roddy

The Minister did not make himself very clear when he was replying to Deputy Coogan's statement in regard to this amendment. He indicated that, in his opinion, at all events, it would be necessary to continue this legislation even after the emergency had passed because he anticipated that there would then be a bigger list of articles smuggled across the frontier than even there was during the emergency. He went on further to say that, even before the emergency, legislation of this kind would have been justified. If the Minister was entitled to take stronger powers prior to the emergency for the purpose of dealing with smuggling, I can only assume that the Minister must have been guilty of negligence when he did not put the position clearly and fully before the Dáil. In any event, I assume the Minister was disturbed, probably by his constitutional outlook, and felt that the situation, at all events prior to the emergency, was not so bad as to justify him in disturbing the rights of the people living on both sides of the Border. After all, this amendment only asks that the Bill will operate until the 31st day of March, 1948. As Deputy Norton has pointed out, the Emergency Powers Act has to be renewed year by year. If the Minister does feel that it is necessary, in the interests of the country and for the purpose of putting an end to the smuggling business, that legislation of this kind should be continued beyond the end of the emergency, then he can come back and ask the Dáil to give him permission to continue the legislation.

In any event this legislation embraces most objectionable features. It enshrines a bad principle because it renders every person living on either side of the Border suspect by the Revenue Commissioners. I think that is a condition of affairs that cannot be justified in a country that still claims to be democratic. Obviously, the Minister has made up his mind that the Border is to continue because he seemed to indicate that, as long as he is alive, probably some legislation of this kind will be necessary. I sincerely hope the Minister is not quite correct in his outlook and that he and the members of his Party will justify the promises they made with regard to Partition.

Mr. O Ceallaigh

This would apply to the whole of Ireland if the Border were removed to-morrow.

Mr. Roddy

However, I think the Minister would be well advised to accept the amendment. He has admitted, more or less, that there is a great deal to be said for it.

Mr. O Ceallaigh

In certain circumstances, I said.

Mr. Roddy

We are dealing with circumstances here at the moment. I think that the Minister, in his heart of hearts, does really believe that legislation of this kind cannot be justified except in the most extreme circumstances and, in view of what he admitted here to-day, the fact that he delayed so long in introducing legislation of this kind shows that it was with a considerable degree of hesitation and reluctance that he finally introduced this Bill. I do suggest to the Minister that he should accept this very reasonable amendment and if he does desire to continue it after the emergency has passed then he certainly can come back to the Dáil and, when the circumstances are explained fully to the House, I am sure there will be no hesitation in giving him whatever powers he requires to deal with whatever situation may exist at that period.

Mr. O Ceallaigh

I do not like to seem to be unreasonable. I have always stood for what I have regarded as democratic Government. I would like that the Dáil should be satisfied as to the necessity for any law that it would pass and that it should be quite convinced that any powers sought from it are clearly necessary, arising out of such circumstances as those proposing the laws would produce to the House to satisfy it that they were necessary for the time being. Before the emergency, there were 17 cases of prohibitions. I do not know how many there are now. Of the 17 that were there before the emergency, some of them related to dangerous drugs, firearms, scrap-iron, agricultural and dairy produce. The exportation out of the country of all those things was prohibited and a lot of others. There will be many more. There is nothing in what we are proposing here that is not there already in the law relating to smuggling into the country. We are asking you to give us the same powers in reference to smuggling out of the country. As there is a very strong feeling on the matter I do not like to seem to steam-roll it through. We have the power to do that with our majority, but we do not want to do it.

Mr. Norton

You may have it in 1948.

Mr. O Ceallaigh

And for many long years afterwards, looking at things as we see them now.

Mr. Norton

Do not be too cocky.

Mr. O Ceallaigh

I am a democrat first of all and I should like to convince the House, if I can convince it, as to the necessity for this law. If the House is prepared to give it to me up to December, 1950, I will accept the amendment.

Mr. Norton

You will be out of office by then.

Mr. O Ceallaigh

There is not the slightest chance.

Mr. Roddy

We will agree to that. Amendment agreed to in the following form:—

Before Section 12 to insert the following new section:—

(1) This Act may be cited as the Customs (Temporary Provisions) Act, 1945.

(2) This Act shall continue in force until the 31st day of March, 1950, and shall then expire.

(3) This Act shall be construed as one with the Customs Acts.

Section 12 deleted.

Schedule and Title agreed to.

Bill reported with amendments.

Report Stage ordered for Wednesday, 28th February.