Léim ar aghaidh chuig an bpríomhábhar

Dáil Éireann díospóireacht -
Wednesday, 12 Feb 1958

Vol. 165 No. 1

Public Business. - Prices Bill, 1957—From The Seanad.

The Dáil went into Committee to consider amendments from the Seanad.

I move that the Committee agree with the Seanad in amendment No. 1:—


In page 4, sub-section (2), lines 26 and 27, "the 1st day of January, 1958" deleted and "such day as the Minister appoints by order" substituted.

This is merely consequential on the fact that amendments were introduced in the Seanad which involved postponement of the date for the coming into operation of this Bill.

Question put and agreed to.

I move that the Committee disagree with the Seanad in amendment No. 2:—


In sub-section (1) (d), line 35, "reasonably" inserted before "require".

I am sure there are a number of Deputies opposite who will have learned from experience that one of the biggest nuisances a Minister can encounter when he is trying to get a Bill through the Oireachtas is the "sea lawyer", who believes he can improve on the work of the Parliamentary Draftsman. This amendment was a product of a belief that the Parliamentary Draftsman had slipped up.

The amendment is quite trivial. It was put forward in the Seanad in the belief that the Parliamentary Draftsman made a bona fide mistake. The section of the Bill dealing with powers of inspection says that the inspector may go into premises at a reasonable time, may examine books and get any information from these books that he may reasonably require for the purposes of his investigations, or he can seek other information he reasonably requires. There is one section where that word “reasonably” does not appear. It was assumed that that was an oversight and the amendment was moved to put that word in. When I brought this to the attention of the Parliamentary Draftsman he said it was not an oversight, that it should be presumed to be reasonable for the inspector to ask the question, “who is carrying on the business?”, and that in all similar sections in other measures that was presumed to be reasonable.

When the amendment was put in the Seanad I must admit I conveyed to the Opposition that I thought the amendment of so little importance that I was prepared to accept it if they completed the Bill so that I could get it back to the Dáil to be dealt with before the Recess. But when they came along with a more foolish amendment, that did not prove possible. If we are now dealing with these amendments, we may as well stand for purity of drafting and accept the advice of the Parliamentary Draftsman that the word is not required.

The Minister has stated that one of the big difficulties a Minister may have in piloting a Bill through the Oireachtas is the fact that he may come face to face with a "sea-lawyer." The Minister's statement to us here now that he has been advised that the requirement of the authorised officer should be presumed to be reasonable would seem to indicate that whether the word "reasonable" is inserted or not makes no difference. If that be correct—and we must accept the Minister's statement as indicating that is the advice he has got—what is the reason why this House should be asked to set aside a considered decision of Seanad Éireann, a decision which was come to, not with haste but after due consideration in the other House?

May I remind the House, when the Minister refers to sea-lawyers, that the sea-lawyer in this particular case was the Minister's own Parliamentary Secretary, who agreed with this amendment in the Seanad and who had it inserted in the Bill with the unanimous support of the Upper House. The position now is this. The amendment was passed by the Seanad. Later on, when the Minister came into the House, apparently rather angry, he asked the House to reconsider their decision and they decided not to do so. They decided not to do so because they were told by the Minister, as we have been told here, that, whether the word is in or not, it makes no difference. Even if it makes no difference as far as legislation is concerned, we should ensure that any authorised officer operating the wide powers set out in Section 24 should, under our legislation, be told that he must act in a reasonable manner and that the information he requires must be reasonable.

I want to say a word on this. When we pass an Act of Parliament here, we create an offence against the law for anybody who does not comply with the requirements of our Act of Parliament. That is a work about which we should go circumspectly. There still survives in this country a section of people who do not willingly place themselves in conflict with the law because it is the law.

What does this Bill say? In sub-section (d) where it is proposed to insert this amendment, it says that an authorised officer of the Minister for Industry and Commerce may require the person referred to in the sub-section to give him any information the officer may require in regard to persons employed in connection with the business. It does not say that he is strictly confined to inquiring who runs the business. He has full power under this sub-section to require persons in authority to give him any information he chooses to require about any person employed in connection with the business. And the person questioned, if he chooses to refuse to answer any such question and is summoned for his failure to do so and charged with a breach of the law, is not entitled to go into court and say: "I did not think the question was reasonable; I did not think it had any bearing on the business. I thought it was pure snooping on the part of an excessively zealous minor bureaucrat."

But the bureaucrat is entitled to say: "I do not care what the defendant thought. I was given explicit power under this sub-section to ask any questions I want." He is entitled to say: "There are several other places in the Bill where my conduct was restricted by the terms of the Bill to reasonable conduct. Here is a sub-section which deliberately excludes the word ‘reasonable' and it is clearly designed to give me unlimited power to ask the proprietor any question about any person employed in connection with the business."

I think that, under that section, the inspector might come into court and say: "I did not believe this fellow and I determined to test his veracity by asking him a question—the answer to which I knew—about one of his employees, to invoke the power I have under this section and challenge him to answer it, and he did not tell me. I knew why he would not answer me— because he did not want to admit what I knew."

Is that the power we want to give to a minor bureaucrat? I can conceive circumstances in which it is necessary to confer very wide powers on highly responsible public servants if they are dealing with some particularly grave evil that cannot be grappled with by the ordinary processes of the law. But we have always agreed in this House that where we have conferred very wide powers of that kind, we have always restricted them to a very limited class of very high officers in the police and high officers in the public service, such as assistant secretaries and secretaries of Departments.

We have always tried to hedge around with adequate safeguards the exercise of power by minor bureaucrats, who, after all, would not be minor bureaucrats if they were people who used discretion and people in whom we had 100 per cent confidence. They would be senior bureaucrats. I can tell the Minister that he alternates to-day between his role of gamin and his role of archangel. At the moment, he appears to have cast himself for the role of mischief. May I suggest that he should now reassume the wings and the haloes? The Minister himself says that the insertion of the word makes no difference at all, that it does not make the section better or worse. We, the Opposition, think it will improve the section.

Why did the Deputy not think about it in time?

That is the very reason that when the Taoiseach and his Leader were trying to abolish the Seanad in this House, we used to say: "Do not abolish the Seanad; a second Chamber has a useful purpose."

The Deputy should discuss amendment No. 2.

Am I not entitled to answer the Minister when he asks why we did not think about the matter in time? That is one of the reasons we have a Seanad. After a Bill has been exhaustively debated in this House, it goes to the Seanad, where it is debated and reviewed, and, if there are any imperfections left in it, they correct them. Is that not the purpose of the Seanad? If the Seanad does not serve that purpose, what is it there for? The Seanad has done its work and directed our attention to the matter. We had another case to-day when I was obliged to confess that I did not know where Section 21 of the Agricultural Institute Bill came in. We passed it in this House. The Taoiseach promoted it in this House. The Seanad removed from the Bill a section which, had it stayed in, would have made the Bill unconstitutional. When the Seanad sent it back to have the section deleted, we deleted it and expressed appreciation of the action of the Seanad.

All we ask is to insert the word which the Minister says is in no way injurious to the purpose we have in mind. Is the truth not this? The Minister sent his Parliamentary Secretary into the Seanad with that Bill and the Parliamentary Secretary was trying to get the Bill through. The Minister lost his temper and said to his Parliamentary Secretary that he was allowing the thing to go too slowly— had he forgotten the Bill had to be passed by the first of January?—and that he would go in and fix the Seanad? He went in and ate the face off the Seanad. Is that not so? The Minister lost his temper in the Seanad.

Some of them had very hard faces.

That may be so. All of us, when we were Ministers, had to bear with the Oireachtas on occasions. I even had to steer the Greyhound Industry Bill.

A Deputy

It is still running.

It is still running and the very Bill that Fianna Fáil opposed for three months in this House is to be brought in by them to-night, line by line and word for word as I sought to get it passed.

The Deputy should get back to amendment No. 2.

That is the fruit of losing one's temper. All I am asking the Minister to do is to put on the haloes and wings again. He looks better with those than he does as the naughty gamin of 30 years ago. The Minister should shoulder his responsibilities and shock the neighbours by getting up and saying: "You can have your blooming amendment, if you want to. It does not make any difference to me." A man ought not be hauled before the court and charged with an offence in that he withheld information without at least the right to make the plea that he was asked a question that had nothing on God's earth to do with prices.

The inspectors will ask these questions only for the purpose of obtaining the information the Minister requires.

If an inspector asks me a question about a person "employed in connection therewith," I should be able to go into court and say I did not think this question was reasonable. It had no relation to prices or any matter.

The only question involved here is who runs the business.

It is not. It is "any information that may be required".

"Or employed in connection therewith,"

He can ask questions for the purpose of obtaining the information the Minister requires.

I am not saying that if the administration of the Act was exclusively in the hands of the senior officials of the Department of Industry and Commerce, there would be any reasonable grounds for apprehension in regard to this matter, but it is not going to be operated in this context by senior officers but by the most junior officers.

I can give the Deputy an assurance on that.

I do not reflect on inspectors, but they are not chaps whom you would expect to have the same prudence and discretion as you would expect to find in a senior public servant. How can the Minister stand on the proposition that the insertion of the word "reasonable" does not make any difference; that it does not in any way impede him, and then say he is damned if he will accept it? That is not reasonable. I urge upon him strongly to stagger the House by accepting it.

I am not at all certain that my colleague, Deputy Dillon, has accurately stated the Minister's intention. Deputy Dillon said that he has an idea the Minister does not care whether this word is put in or left out. I got the most definite impression that the Minister wants it out and deliberately wants it out, and that his attitude is not that it makes no difference whether it is in or out, but that he most deliberately wanted, on reflection after the Seanad had unanimously agreed to the insertion of this word, it out.

What does the Minister want? What is his purpose? Perhaps he is a sea lawyer, but I have a very definite impression that the word was most deliberately left out, and that the insertion of this word by the so-called sea lawyers in the Seanad was very essential and was not in any way a reflection on the Parliamentary Draftsman who carried out the Minister's instructions. He was told that they wanted this without the word "reasonable" in it so that nobody could say that a question put by an inspector was unreasonable.

That is why it is put in the other paragraphs.

Yes, I will deal with why in certain of these paragraphs the word "reasonable" occurs and in others it does not. Anybody construing that would point out that where you find the word "reasonable" in certain sub-sections and not in others, that is done deliberately, and that, therefore, when the word "reasonable" is left out, it is deliberately left out for a certain purpose. I challenge the Minister to controvert that proposition. I approach the construction of this section with a conviction that the word "reasonable" was intended to be deliberately left out in order that nobody might say as a defence to a prosecution under this Bill, if there be one, that the question as it was put was not a reasonable one.

The Minister has said that he wants it left out because it must be presumed that the officer is asking reasonable questions.

I said it must be presumed that it is reasonable to ask that question.

In other words, any question that the Minister's inspectors ask must be deemed to be reasonable——

No, just that one question.

——on that section. It must be deemed to be reasonable. Therefore, I am right in thinking that my colleague has not interpreted the Minister's mind correctly. I noticed, and I am entitled to comment upon it, that when Deputy Dillon pressed that view of the section the Minister did not contradict him. It is perfectly clear then that the Minister wanted to have this word left out in order that nobody could say as a defence to a prosecution that the question was not reasonable and should not have been asked. If that defence was put up whoever was prosecuting in the court could say: "Look at the section."

The sub-section entitles the inspector to ask for any information he may require and he may do that, as the Minister has already pointed out in interruption, "the authorised officer may, for the purpose of obtaining any information which the Minister may require..." The word "reasonable" is left out and I would draw the attention of the Dáil to that, so that the Minister may get any information, whether reasonable or unreasonable, unless it is within the two sub-sections. I have no doubt as to why the word is left out, and that is why the Minister decided to overbear the amendment of the Seanad, that the deliberate intention is that there should be no defence to the prosecution under this section on the ground that the information was not reasonably required.

If the word "reasonably" were put in it would not make any difference to the Minister unless he wants to have the interpretation put upon it that I have put upon it. It seems to me quite clear that the Minister was endeavouring to mislead the House when he let Deputy Dillon's interpretation pass. He requires this specifically; he said it must be presumed it is reasonable to ask these questions and that therefore the word "reasonably" must not be——

May I point out that since this House was set up Bills have been passed by the hundred containing sections similar to this, and that consequently this type of section has come to take a more or less standard form. No doubt it has been modified from time to time and to meet the needs of particular legislation. The most recent piece of legislation containing this type of section was the Seeds and Fertilisers Bill, 1957, introduced by Deputy Dillon in 1956. I would hate to suggest that Deputy Dillon was responsible for bringing a bad Bill to the Dáil and getting it passed, or that Deputy Costello, as Taoiseach, allowed it to be approved by the Cabinet without having read it. This section was taken from the Restrictive Trade Practices Act, and a multitude of other Acts of a similar kind have precisely similar sections. I agree I cannot see that it makes any difference——

Why not accept the amendment now?

Let me answer that. That is my view as a "sea lawyer." To me, it makes no——

But the district justice has to interpret it.

Let me finish the argument and then we shall see who has common sense. It is reasonable to assume that an inspector carrying out this provision would be entitled to ask who is carrying on the business and that it would not be unreasonable to ask that question. When the amendment was put down in the Seanad I said to the Parliamentary Secretary: "That will hold up the Bill if we resist it. Accept it on condition that they agree to let the Bill out of the Seanad in time so that the amendment can come back to the Dáil and be approved by the Dáil before the Christmas recess." They did not do that. But now Deputy Costello says: "If it makes no difference, have a badly drafted Bill rather than a good Bill——"

I said nothing of the sort and the Minister has not yet answered my argument.

Do not pretend to me that this amendment went into the Bill on the Report Stage on its merits; it went in on a Party vote——

Every single person in the Seanad voted for this amendment excluding the Minister's own Party.

On the basis that it was better to have the amendment put in and get the Bill passed before Christmas.

That is not stated —that it was for that reason.

Does the Minister know who proposed the amendment in the Seanad? Senator Sheehy Skeffington.

Not a single person other than the Minister's own Party voted against this.

Deputy Dillon is going to explain about the Seeds and Fertilisers Bill.

That is a red herring and if the Minister has nothing but that to argue, it is a poor argument.

The Minister is a good judge of a smelly, red herring, but I shall not travel that ground. We had this situation to-day. I asked where did Section 21——

I shall accept the amendment rather than waste more time on a stupid discussion.

You might have done that gracefully just as well at the start as to be beaten into doing it now.

That does not apply to the next amendment.

We will argue that when we come to it.

And perhaps the Minister will accept it.

That is a great achievement; it justifies the existence of the Seanad.

I thought it was justified in the Constitution.

Do not draw me on that subject.

Motion negatived.

Seanad amendment No. 2 agreed to.

I move that the Committee disagree with the Seanad in amendment No. 3:—

Before sub-section (2), a new sub-section inserted as follows:—

(2) No one shall be required by virtue of paragraph (e) of sub-section (1) of this section to answer any question or to give any evidence tending to criminate himself or in respect of either of which he would be entitled to claim privilege (as being a matter of confidence between him and his legal adviser) in the High Court.

This is a particularly stupid amendment which I cannot under any circumstances accept. Apart from the fact that it is badly drafted, put in the wrong place, and entirely unnecessary, if it was of any effect at all, it would be completely detrimental to the enforcement of Price Orders under this Bill.

There are two parts in this amendment. About the privilege of communication between a person and his legal adviser, as I explained to the Seanad on the highest legal authority, that privilege attaching to confidential documents passing between a lawyer and his client is so deeply entrenched in law that it could not possibly be removed by implication and there is consequently no necessity at all for a safeguard of that sort in this Bill. But that is not what was being aimed at here: the aim was somewhat different. There is this suggestion that a person should not be asked to answer a question or give evidence tending to criminate himself. Personally, I believe that the Senator who moved that amendment saw a somewhat similar provision in the Office Premises Bill which had gone through the House shortly before and thought that it should be here without recognising that the functions and powers of an inspector under that Bill, as under the Factories Bill, are completely different to the functions and powers of the inspector here.

In this case an inspector does nothing except report to the Minister on the results of his inquiries or investigation. Anything that may happen after that is on the Minister's decision. Nevertheless an attempt was made to justify the amendment on a different ground. Let me make clear what is involved. Under the Prices Bill, 1957, provision was made that an inspector could ask a trader who was offering for sale goods for which a Price Order had been made, what price he was charging for the goods. That is what it is intended to prevent here. If I understand the arguments of the Seanad at all, it is to prevent an inspector, in a case where a Minister has made an Order fixing the maximum price of some goods, having the right to ask the trader offering those goods for sale what price he is charging for them. If you make a provision like that in the Bill, you make the whole thing nugatory.

I am not, as you know, strong on the efficacy of price control but I am not going to make myself responsible for a Bill which will make it farcical. This Bill makes it possible to introduce price control in time of scarcity, when there is a danger of profiteering and, if these provisions are to be enforced, an inspector must have the right to go in and ask a trader what price he is charging. The purpose of this amendment would be to deprive him of that power, at least to give the trader an opportunity of pleading a sort of fifth amendment and to say, "I will not answer that question because it would incriminate me". It would be a stupid provision to have in the Bill. This amendment would not achieve its object, if that is what is intended, because the amendment is put into the wrong paragraph, and certainly it would be quite contrary to all established precedents in that regard.

In other legislation passed by this House giving power to a Minister to fix prices, we also provided for the possibility of an inspector carrying out an investigation as to the prices actually charged. That applies only where a maximum price order has been made. There can be other inquiries carried out by an inspector under this Bill and I contemplate that, normally, his powers would be used when a committee has been set up and is seeking information upon which to base a recommendation to the Minister. In that case the inspector will try to get the information that the committee is seeking. But, in the particular case contemplated in this amendment, a maximum price order will have been made and it will be the duty of the Minister to enforce the order and the duty of the inspector to get him the information to allow him to take proceedings where justified. I could not undertake to accept the amendment. I do not think it is desirable. If that is what is intended, and I think it is, it is something that we should oppose. I think it was something thought up by a sea lawyer, who saw a provision in one Bill and thought it should be in the other.

In fairness to the Senator who moved the amendments, I should point out that he is a practising barrister and should not be described as a sea lawyer.

I hope I shall not irritate the Minister.

Not every lawyer is a good Parliamentary Draftsman, as the Deputy knows.

None of them, thank God. They cease to be practising barristers when they go into the Parliamentary Draftsman's office.

I do not hold myself out as a Parliamentary Draftsman or as a sea lawyer or as a member of the Bar. I hold myself out as a respectable licensed grocer in Ballaghaderreen for the purposes of this argument. The Minister has pointed out that it is highly likely that the Price Orders for the enforcement of which the inspector would invoke this section would be made in times of scarcity or quasi-national emergency. I think we can all agree that if there was a situation of scarcity or quasi-national emergency in the country, one of the meanest crimes is to avail of that emergency in order to rook your neighbour or exploit the poor. Is that not agreed? It would be one of the most offensive, injurious and disgraceful offences of which one could be convicted in a public court.

It might not carry a heavy statutory penalty and yet your good name in the presence of your neighbours would be injured by it much more than it might be if you were convicted of many other offences for which you paid the penalty and in respect of which your neighbours would think very little the less of you. But, it is in respect of that class of offence, an offence which you would be peculiarly concerned to go and contest in the courts most enegetically, not in fear of the penalty which the court itself would impose but in fear of the penalty of the sanction of your neighbours' contempt for being convicted of such an offence, that you are required under this section to confess to any inspector who comes into you and to strip yourself of the right to say: "I do not propose to answer that question. If you allege against me that I have been guilty of this peculiarly offensive crime, prosecute me and prove it."

I have the right to say in any court of law, charged with any offence from murder to being drunk and unrulely, that before I am convicted it is the responsibility of the State to prove that I am guilty and, until I am so proven, I am deemed to be innocent and I am entitled to get acquittal from a court of law of any charge brought against me. But this Bill provides that I have a statutory duty to answer the question, the very question upon which my innocence or guilt depends.

Let us stop and think where we are going. We have an Act in force in this country which contains a provision analogous to that—the Public Safety Act—but we all gave those powers to the Government with great misgiving and we would only give them because we were all satisfied that they represented the only effective instrument to deal with an emergency which struck at the very foundations of the State itself. No lesser case, I think, would have induced this Parliament to abrogate the general rule that a man is innocent until he is proven guilty. We have no verdict in this country of "Not Proven" as they have in the Scottish courts. You are either guilty or you are innocent and it is the duty of the State to prove that you are guilty.

I know price control is not easy to enforce but is anybody in this House prepared to make the case that the emergency is so great and formidable that we are to abrogate the right of a man to defend himself in court and to challenge the State to prove that he has committed a crime before he is condemned, not only in the eyes of the law but in the eyes of his neighbour?

I say without hesitation, and I know whereof I speak, if, in the circumstances envisaged by the Tánaiste, I were prosecuted in my own town for an offence under that Act, the penalty which it was in the power of the court to impose upon me would be of no significance in comparison with the sanction of my neighbours' condemnation of my breach of that law.

That has nothing to do with this amendment.

Surely I ought to have the right to say to the inspector: "No, I will not answer that question"?

So you have, under every section of the Bill, providing you think it is reasonable to refuse the information.

Suppose I know perfectly well—I can envisage this happening where there is a fixed price for, say, bread, of 6d. a loaf—that some junior assistant has charged a woman 7d., that it is an isolated case and that I have already taken precautions to see that it cannot possibly happen again. Supposing an inspector says to me: "Did you charge 7d. for a loaf of bread?" Am I entitled to say: "I will not tell you"? I think, under the section, I am not. Under the section, I am obliged to say "Yes" or "No".

There is nothing about that in the section at all and certainly there is nothing in it that was not in the corresponding section of the Seeds and Fertilisers Bill.

Do you not think, in those circumstances, I ought to have the right to say to the inspector: "If you believe that, prosecute me" and still be guilty of no statutory offence under this Bill? I do not think I am entitled to say that under the Bill as it exists.

The purpose of the amendment is no more than to give me the right to refuse an answer where the answer would, in fact, convict me of an offence under the act. Is that unreasonable? If my interpretation of the section, as it stands unamended, and if the purpose of the amendment be correct, would the Minister then accept it?

It is a badly drafted amendment and it is put in the wrong part of the Bill, if that is the purpose. I am not sure what the purpose is. Even with the inclusion of that amendment, the inspector can go into shops, inspect the books, take extracts from the books——

Ask questions—yes, go on.

——and require the person to produce any information he may reasonably require regarding entries in the books. There is no question of any amendment opposing these sub-sections.

Does the amendment cover all that?

It does not.

Let me try and narrow it down to a simple case. The inspector comes in and says: "By virtue of Section 24 (1) (e) of this Act, I require you to give me any other information which I reasonably require in regard to your activity as a merchant. I want to know this. Did you charge Mrs. So and So 7d. for a loaf yesterday, the fixed maximum price by the Minister for Industry and Commerce being 6d.?" As I understand it, suppose I say: "If you believe that, prosecute me and prove it", he may say: "That is enough. If I cannot get you on the charge of having done that, I have you under sub-section (e), that is, that you refused to answer my question." Suppose I am charged and that I plead that his question was of a character that left me no option, if I were to answer it truly, but to admit an offence under the Act. I say that you have no right to ask me such a question. It is the duty of the court to assume that I am innocent until you are in a position to prove me guilty. Narrow it down to that simple case.

I am asking the House to pause and consider. We are all agreed that the likelihood of Price Orders being made under the Bill, when it is enacted, is remote. It is designed for a period of scarcity. Do you seriously intend to override a fundamental principle of the law—that a man is innocent until he is proved guilty—in order to provide for this remote contingency?

The Minister may say that this is in regard to a trivial matter which, practically, can never arise. But there is the danger that it may. If you put that in this Bill then, just as the Minister said that this was taken out of another Act, in six or 12 months' time there will be another Bill before us and we shall be told that some section in it was copied out of another Act. That is how Section 21 got into the Agricultural Institute Bill. I did not know it was there and the Taoiseach did not know it was there. Finally, when the Taoiseach inquired how it got there we were told it was copied out of another Act. He is now wondering if he ought not introduce legislation to amend the other Act. Section 21 of the Agricultural Institute Bill is of relative insignificance because it enshrines no general principle. This section, however—without the amendment here proposed—makes a very serious inroad, with deliberation, on the principle that I should not be found guilty until the State has proved me guilty in public court. I know that that increases the Minister's difficulty in enforcing a Prices' Act.

I share a good deal of the Minister's instinctive opposition to Price Control Acts in that I doubt if they can ever be made effectively to work except at such a cost as is wholly out of proportion to the ultimate benefits that derive from them. I agree that their enforcement is almost impossible. But, having that belief, as I have, let me endorse the Minister, in his desire to repair that inherent defect in all price control legislation, not to trample down a very important principle in the hope that he will make more efficient that which he knows in his heart can never be wholly efficient.

I do not know what we are talking about. What principle am I trampling down?

Take this simple case. If I, a shopkeeper in a town in rural Ireland, am prosecuted and have alleged against me that I have broken the law, I am entitled to say to the person who makes the allegation: "Prove it in court."

Where does the Bill say otherwise?

The Bill says he is entitled to put me on my proof in my own shop and, if I do not answer him——

In precise words, it says that the inspector may ask the person to give him information which he may reasonably require in regard to this matter upon which the Minister is seeking a report.

In regard to the prices he has charged. Is that not so? The Minister may make the argument—and I will listen with respect if he does— that the word "reasonably" excludes the possibility of the inspector's asking the question.

No. It means that the person who thinks the question unreasonable can refuse to give the information.

Is he the judge in every case?

If it was important enough, the question would have to be settled in court—whether he was reasonably entitled to refuse.

If the Minister says to me: "You are asking for an amendment which exempts a man from admitting an offence under the Act, on being questioned by an inspector," if the Minister says to me: "It is not necessary; the word ‘reasonably' will be held by any court to forbid the inspector to ask a question the answer to which would incriminate a merchant," if that is true, then I think the Minister has the best of the argument. My argument is based on the proposition that the section as it stands would entitle an inspector to ask me or any shopkeeper in Ireland that vital question: "Did you charge 7d. a loaf although the Minister made an Order fixing a maximum price of 6d.?" If the section does not authorise him to do that, I cannot see any serious difficulty. But, if the section as it stands in the Bill at present, without the amendment, does authorise the inspector to ask that question and to say to the shopkeeper: "Either you admit you did it or you tell a lie or you refuse to answer it."

This amendment is unnecessary. In any case, it is a bad amendment. Even if that amendment went into the Bill, the inspector could still say: "You sold Mrs. So-and-So a loaf yesterday for 7d. Turn up your books. I want to see the record."

I do not sell a loaf and put the entry in the book. I make a profit of a farthing on a loaf and if a woman asked me to put a loaf in the book I would run her. She gives me the money and I give her the loaf.

The Deputy is running away from my argument and indulging in a discussion in regard to the practice of business.

The Minister is getting away from my argument. I am prepared to give a run of provisions which would work no hardship on the highly organised store in Dublin or Cork or Limerick, but which would be a source of perennial persecution to 90 per cent. of the shopkeepers of this country, who are the despised shopkeepers of Ballaghaderreen and Ballybofey and other villages in Ireland. Remember, it is in these shops that overcharging might take place particularly of a character which was unintentional but which would constitute an offence under the Bill.

But if he stated the circumstances like that, he probably would not be prosecuted at all. If he was not willing to tell you, he would be looking for prosecution.

Now do you see where we are going?

Even during the war, with the special courts, we never convicted upon that type of evidence. There always had to be evidence of a particular sale to a particular person.

And in a case where the man went in and said: "I deny it," you undertook to prove he had actually done that. That is what I am now asking. So constitute this Bill that you place yourself under the obligation of bringing the man to a special or ordinary court, that he denies that he overcharged anybody and that you produce evidence and the court says the evidence convicts the man. That is all I want. All I am arguing is that the man should not be put in the position in which he has only three choices —to lie; or to say: "I admit a breach of the Minister's Order"; or to say or do something or give an answer which undoubtedly brings him in conflict with paragraph (e) in this section, committing a stautory offence under the Bill by refusing to answer.

The amendment does nothing.

I think the amendment does.

The amendment does nothing whatever. If any trader, answering the inspector who asked a question contemplated here, says: "I do not think it is reasonable to ask the question and therefore I will not answer it," then the question whether the inspector put a question which was reasonable or whether the trader was reasonable in refusing the information is settled by the court. It does not make the slightest difference whether these words are added.

That is not in the Bill. The word "reasonable" refers to what is required. The word "reasonable" refers to what the officer requires and not to the position of the person being questioned.

Surely if there is any question of refusing to give information, the question will be decided by the courts. It is not decided by the Minister.

I would like to know if the Minister is on the same point as he was on in the last amendment, that it does not matter whether the amendment is in or not.

No. I think it is a most stupid amendment. I would not agree with it on any basis.

Then, if that is so, we are now arguing on this basis —that it is a stupid amendment. Is it as stupid as the Minister's own argument, that because it is a badly drafted amendment it should not be accepted? Is there never an amendment put down by people who have no legal knowledge and no recourse to a legal draftsman, that does not come within the Minister's description?

Certainly, there are.

If it enshrines a principle which is acceptable, is it not the case that it is agreed to, with the provision that it be redrafted?

Deputy Costello misunderstands it. I could understand it if somebody puts down an amendment which was badly drafted, in order to get a new principle in the Bill. This is an amendment purporting to improve the drafting of the Bill—and that is all.

With great respect to the Minister's view, the amendment put down by Senator O'Quigley was—as Deputies will see if they read his speech—for the purpose of emphasising what he certainly conceived to be a principle of supreme importance. To try to ride away on the argument that this is a badly drafted amendment or is in its wrong place, simply exposes the weakness of the other arguments, if he has any, against the principle enshrined in this. The very fact that the Minister has to fall back upon an argument of that kind and uses words about Senator O'Quigley and those who supported him—"stupid" and other words of that description and adjectives of that kind—emphasises the poorness of the argument the Minister has against this amendment.

I could calmly argue with the Minister the question of whether or not the amendment dealing with solicitor's privilege was necessary or not, but where the Minister approaches this particular amendment in the way he does, reasoned argument seems to run out the window. I will go this length with the Minister and say that, so far as part of the Senator's amendment is concerned to deal with legal privilege, there is a lot to be said for the Minister's point of view. Equally, there is something to be said for the Senator's point of view, that he wanted to get it clearly established that nothing of that kind could be caught by the wording or by the circumstances in which this Bill was drafted. I do not at all subscribe to the proposition put forward by the Minister when he said that he had the highest authority for the proposition that this privilege, in regard to communication between solicitor and client being the privilege of the client, is so enshrined in the law that it would be almost impossible to get it out of it.

No. I said it could not be removed by implication.

That is even going stronger that what I have said—"it could not be removed by implication". Of course it could be removed by implication. A statute can amend another statute by implication.


By implication, without "expressly" at all. The Minister now is assuming the role of sea-lawyer and it ill behoves him. A statute can amend another statute by implication—but, of course, subject to very rigid rules of construction. Where it is really a matter of legal principle founded and having its origin in the British Common Law, quite a considerable number of restrictions are attached to it. Even then, it is much easier to amend a principle of that kind by implication, particularly in circumstances such as are envisaged by this Bill, than it is for a statute to repeal another statute by implication.

I can well imagine the district justice—or, on appeal, the Circuit Court or even the High Court Judge—saying: "We must consider this statute in the light of what the Oireachtas set out to do and the end intended by them; it was intended to secure price control and to prevent people selling the necessaries of life at greater prices than they should; and therefore, to achieve that, certain drastic powers must be assumed by the Legislature or the Department; and accordingly we must, in the light of that, construe the statute in that way."

Construe the words of the section.

Construe the words of the statute in that way. Therefore it is conceivable—I put it no further than that—that, in such a set of circumstances, it would be held that, because the object of this statute was of such a drastic character, the object to be met required this drastic provision.

It is not a drastic statute of that kind. Read it.

If the Minister brings in a Bill here and says: "I am bringing in a Prices Bill to control prices, but everyone must know I have my tongue in my cheek and it is "all my eye'," then it is a different proposal. Here is what was quoted in the Seanad by Senator O'Quigley as reported in Volume 48 of the Seanad Debates, column 1127. He quoted what the Minister said on the Bill, as reported in the Dáil Debates, column 125 of Volume 164, as follows:—

"I do not want to present this Bill to the House as a measure of major importance. It is not and I do not want to regard it as such."

This is a Bill which is supposed to control the prices of the necessaries of life and is introduced into this House as such, but in the Minister's own words, it is eyewash. If that be so, then it does not matter how you try to construe it at all.

That is a complete distortion.

But if we take it seriously, the court coming to construe this particular power will construe it in the light of what the court thinks it was intended to do, to control the price of necessaries; and no one can argue in court that the Minister regarded the Bill as eyewash. At all events, I am prepared to concede to the Minister that, as far as it refers to the question of privilege between solicitor and client, it is possible that that might still be a defence to a question put by an official if it transgressed that far, because of the word "reasonably" inserted here; but when you come to the other branch of the amendment, namely, that a person ought not to be forced to answer questions on anything that would incriminate him, then I think there is a strong case for the Senator's amendment, on a strict legal principle. Again, the principle that a person is not bound to answer because it tends to incriminate him is not a principle enshrined in the Constitution. We have not got any principle equivalent to the fifth amendment in the United States, and I rather think the Minister, in his flamboyant construction, had the fifth amendment in mind.

That is what it is intended to be.

The Fifth Amendment is a constitutional provision in the U.S.A., the equivalent of which is not in our Constitution. This is really a law and, like any other law, can be repealed by implication. This can be amended. Principles of that kind, which we regard as much more sacrosanct, are scattered throughout numbers of statutes that have been passed by this House. Numbers of them provide that the onus of proof should revert to the defence, that, until the contrary is proved, the person charged is guilty of the offence. There is nothing particularly fundamental in the law that a person is not bound to answer a question that would tend to incriminate him. In fact the rule here, in so far as we take the Common Law as our code of laws, is very elastic and not at all founded on very sound principles.

The very fact that a man says: "I will not answer that" does not end the matter. It only begins it, because he then has to justify his action in court. It is a very elastic rule of law, hardly dignified by the name of a principle. The Fifth Amendment in America is a different matter altogether. If the Seanad amendment in so far as this principle is concerned were accepted, the section would then provide that an official of the Minister might seek any information that he might reasonably require in regard to the activities of the person carrying on business, but in so doing he would not contravene the principle that a person is not bound to answer any question that might incriminate him.

The official question is put by the Minister's official. The shopkeeper says he will not answer. That does not end the matter. The Minister says he will prosecute. The case goes to court and the shopkeeper has to prove to the satisfaction of the court that he was not guilty of the offence. In no way are the Minister's powers lessened by this amendment. The language the Minister used in the Seanad bordered on that of the guttersnipe.

The Deputy has a bad case.

The Minister speaks about a bad case. If the Minister had a good case, it would not have been necessary for him to sink to the level he did in the Seanad, as reported at column 1137 of Volume 48 of the Official Report. The Minister said, and I quote, "In revenge for the Budget or in revenge for the election or something else, they are going to insert some damn amendment in this Bill...." Is that language calculated either to maintain the dignity of the Minister or the dignity of either House? If the Minister had solid reasons for his argument on this Bill, he should have rested on them and should not have relied on the contention that this amendment is badly drafted, put into the wrong place or, to use his own words, "some damned amendment put into this Bill."

Is that not what the Deputy's former Parliamentary Secretary said?

I have listened to this debate and the longer it goes on, the more confused I get, because, bearing in mind the provisions of paragraph (b) of this section, that persons who carry on certain activities shall be required to produce books or documents or records relating to such activity and to answer any reasonable question regarding them that appears on such books or records, it appears to be stretching the provision very far to suggest that paragraph (e) of the section would have the effect of putting people in the position of convicting themselves.

Paragraph (e) says that the inspector may require such person to give any other information which he may reasonably require in regard to such activity. Surely we are dealing with some question of an attempt at something or another where the Minister may feel it incumbent on him to exercise his powers in relation to the control of prices, and surely it is reasonable to say that if an inspector calls to any place where trade is carried on and asks a question which is clearly aimed at acquiring reasonable information, the very connotation of the phrase "reasonably require" would, in the eyes of the layman, relieve an individual trader from the liability of doing or saying anything that would involve him in the imputation that he was guilty of an offence.

As I said earlier, paragraph (b) requires the person to produce to the inspector any books, documents or records relating to such activities which are in the person's power or control and to give him such information as he may reasonably require in regard to any entries in such books, documents or records. No objection is made to that particular clause, but here, where the provision requires the person to give reasonable information, the suggestion is made that in some manner the person is being deprived of legal rights.

I cannot follow the Deputies who have spoken into the intricacies of law involved, but it would appear to me, as a layman, that this provision should be retained, if there is any pretension at all being made to operate a Bill designed to control prices. During the discussion on the previous amendment, great stress was laid on the word "reasonably" and, after lively debate, the Minister agreed he would accept the amendment and would write in the word "reasonably". If the word "reasonably" was so important there surely it should be accepted by the House that it is equally important in regard to this sub-section and that it gives the protection which Deputies are anxious to seek for persons affected by the Bill.

I had this on the Committee Stage in the Seanad and I refrained from intervening in the debate on the last amendment here, but I might say that I did accept it in the Seanad on an assurance from the spokesman of Fine Gael in the Seanad that, if I accepted the insertion of the word "reasonably", he would guarantee that the Bill would go through unaltered in respect of the other amendments and that it could come back to the Dáil and become law that evening.

Would the Parliamentary Secretary give us the reference to that promise?

I take it that what Deputy McGilligan is now referring to is a point about which discussion took place as to whether or not there was an insertion in the official debate on the Committee Stage.

No. The Parliamentary Secretary said he got a promise that if the word "reasonably" was put in the Bill would go through. Where is that?

I got that from Senator Michael Hayes.

In the Seanad?

Yes. The reason I mention it in relation to this amendment is that the case that is now being made that there is a very wide principle involved in this amendment was not put forward in the Seanad on behalf of Fine Gael in so far as I could find out.

Of course it was.

There was no Party significance, good, bad or indifferent, attaching to the amendment now before us when it was under discussion in Seanad Éireann and I got a personal apology from Senator Hayes afterwards that the promise which he gave me was not implemented, but he said he did not anticipate that this discussion on the amendment would have arisen.

Earlier this evening the Minister, dealing with the second amendment which was before the House, justified his decision not to accept it by stating that the section, as unamended, had got precedence from earlier Acts passed in recent years. Applying that principle to the amendment before the House now, I should like to draw the attention of Deputies to the fact that what the Seanad, by voting by a majority in favour of this amendment, was doing was merely following precedents in earlier Acts. It is established in the Social Welfare Act of 1952 that inspectors under the Act have quite wide powers of entering premises and seeking information. It is specifically stated in that Act that a person to whom these questions are directed may not incriminate himself and may refuse to answer questions which would incriminate him.

In earlier legislation, in the Prices Act of 1937, it was similarly provided that although the commission bad power to bring people before it to answer questions on oath they would be entitled to claim the privilege which we think should be allowed here. It was provided also in several other enactments, one of which was the Holidays (Employees) Act, 1939, that a person would be required to give certain information but not required to incriminate himself.

And the Factories Act.

What is the object?

Because these inspectors have not got the powers and the functions of the other inspectors.

Is it to be argued that a person will be required to incriminate himself? Let the Minister answer that and I will sit down

The purpose is to provide a common sense provision that a man should be required to give any information that the inspector can reasonably ask.

If you leave out this amendment the person prosecuting somebody in the District Court will point to the fact that that was left out of this section, and a person who is visited by an authorised officer under this Act who is asked to incriminate himself by answering certain questions must incriminate himself.

Do we not all know that if a similar amendment had been moved to the corresponding section of the Seeds and Fertilisers Bill you would all be arguing the other way?

I do not think that is any argument against the very strong argument that it is in other legislation. It is quite clear there is a principle involved which may or may not in future times prove of importance. It is a bad principle that we should pass legislation here which allows an authorised officer to ask questions, the answers to which might incriminate a person, and that is what we are doing here. This may sound academic to people in this House but circumstances could very easily arise where rights which are important to individuals can be taken away.

Not one of you paid the slightest attention to this when it came up before.

That argument has been answered by Deputy Dillon earlier this evening.

If we make a mistake we are not to correct it? We are to stand by the mistake? Is that the Minister's theory?

All I am saying is that this is all humbug. You feel under an obligation to stand behind the Party in the Seanad.

It is quite clear from reading this section without the amendment that an authorised officer can go into a person's shop and ask him questions and compel him to answer questions which will incriminate him.

Where does the Bill say that?

In paragraph (e) of sub-section (1) of Section 24.

Will the Deputy read the section over again?

A person can be required to give any information which an authorised officer "may reasonably require in regard to such activity". The authorised officer can say: "I reasonably require, for the activities on which I am engaged, to ask you whether you charged somebody 7d. for a loaf yesterday when the authorised price was 6d.?" That person will be bound to answer that question and if he fails to do so he will be liable to a penalty.

It is no argument to say——

Is the Minister in favour of letting him incriminate himself? Will the answer "yes" or "no"?

Will the Deputy accept the corresponding provision of the 1937 Act?

If there was bad legislation in those days that is no reason to permit it in the future. It is nine o'clock. Will the Minister say if he is in favour of allowing a man to incriminate himself?

There is nothing in this Bill that requires him to do so and any common-sense person who reads the Bill will realise that.

Anyone can also see that this provision is in most other legislation.

Could I inquire who interprets the word "reasonably"

The courts.

If a man does not reply does he incriminate himself?

The courts will decide that.

If he gives his name does he incriminate himself?

He might in some cases.

Question put.
The Committee divided:— Tá, 76; Níl, 33.

  • Aiken, Frank.
  • Allen, Denis.
  • Bartley, Gerald.
  • Blaney, Neal T.
  • Boland, Kevin.
  • Booth, Lionel.
  • Brady, Philip A.
  • Brady, Seán.
  • Brennan, Joseph.
  • Brennan, Paudge.
  • Breslin, Cormac.
  • Browne, Noel C.
  • Browne, Seán.
  • Calleary, Phelim A.
  • Casey, Seán.
  • Childers, Erskine.
  • Corish, Brendan.
  • Corry, Martin J.
  • Cotter, Edward.
  • Crowley, Honor M.
  • Cunningham, Liam.
  • Davern, Mick.
  • de Valera, Eamon.
  • Larkin, Denis.
  • Lemass, Noel T.
  • Lemass, Seán.
  • Loughman, Frank.
  • Lynch, Celia.
  • Lynch, Jack.
  • McAuliffe, Patrick.
  • MacCarthy, Seán.
  • McEllistrim, Thomas.
  • MacEntee, Seán.
  • McQuillan, John.
  • Maher, Peadar.
  • Moher, John W.
  • Mooney, Patrick.
  • Moran, Michael.
  • de Valera, Vivion.
  • Doherty, Seán.
  • Dooley, Patrick.
  • Egan, Kieran P.
  • Egan, Nicholas.
  • Fanning, John.
  • Faulkner, Pádraig.
  • Flanagan, Seán.
  • Flynn, Stephen.
  • Galvin, John.
  • Geoghegan, John.
  • Gibbons, James.
  • Gilbride, Eugene.
  • Gogan, Richard P.
  • Griffin, James.
  • Haughey, Charles.
  • Healy, Augustine A.
  • Hillery, Patrick J.
  • Hilliard, Michael.
  • Humphreys, Francis.
  • Killilea, Mark.
  • Kitt, Michael F.
  • Kyne, Thomas A.
  • Murphy, John.
  • Murphy, Michael P.
  • Norton, William.
  • Ó Briain, Donnchadh.
  • O'Malley, Donogh.
  • Ormonde, John.
  • O'Toole, James.
  • Russell, George E.
  • Ryan, James.
  • Ryan, Mary B.
  • Sheldon, William A.W.
  • Sheridan, Michael.
  • Smith, Patrick.
  • Tierney, Patrick.
  • Traynor, Oscar.


  • Barry, Richard.
  • Beirne, John.
  • Belton, Jack.
  • Burke, James.
  • Carew, John.
  • Coburn, George.
  • Coogan, Fintan.
  • Costello, Declan D.
  • Costello, John A.
  • Crotty, Patrick J.
  • Dillon, James M.
  • Dockrell, Maurice E.
  • Giles, Patrick.
  • Hogan, Bridget.
  • Hughes, Joseph.
  • Jones, Denis F.
  • Kenny, Henry.
  • MacEoin, Seán.
  • McGilligan, Patrick.
  • McMenamin, Daniel.
  • Manley, Timothy.
  • Mulcahy, Richard.
  • Murphy, William.
  • O'Donnell, Patrick.
  • O'Higgins, Michael J.
  • O'Higgins, Thomas F.
  • O'Reilly, Patrick.
  • Palmer, Patrick W.
  • Reynolds, Mary.
  • Rogers, Patrick J.
  • Rooney, Eamonn.
  • Sweetman, Gerard.
  • Wycherley, Florence.
Tellers:—Tá, Deputies Ó Briain and Hilliard; Níl, Deputies Crotty and Palmer.
Question declared carried.
Reported: That the Committee had agreed with Seanad amendments Nos. 1 and 2 and disagreed with Seanad amendment No. 3.
Report agreed to.
Ordered: That a message be sent to the Seanad accordingly.