Dáil Éireann díospóireacht -
Friday, 14 Jul 1967

Vol. 229 No. 13

Livestock Marts Bill, 1967: Comittee Stage.

SECTION 1.

Mr. Clinton

I move amendment No. 1:

In line 15 to delete "or otherwise".

The section itself, the definition section says:

"Business of a livestock mart" means the business of selling livestock by auction or providing for the holding of sales of livestock by auction or otherwise.

Now, the expression "or otherwise", in my view, is typical of the vagueness and the lack of clarity throughout this entire measure. Due to this lack of clarity and due to the obscurity, the Minister can assume unlimited powers. People in this business are entitled to know exactly what is meant by this definition. People who have invested their money in a business should know exactly where they stand. I cannot see that it is clear from this where they stand.

People should know when they are within the law and when they are, in fact, breaking the law. If we must have this legislation, which I am totally opposed to, we should have it clearly written into this Bill. I have said on a previous occasion that I do not care how much the Minister talks and how much he says about his intention in relation to the operation of this Bill. That is no reflection on the present Minister, as it applies to any Minister who might occupy that seat or a Minister in any other Department as well. It is quite useless for the Minister to say that his intention in relation to the carrying out of what is contained in this Bill is so and so and that he has been able to convince people he is not going to operate it in the way that is indicated across the floor of this House. I would have accepted that before I came into this House originally. I would have accepted it for some time after I came into this House but I no longer accept it because, through bitter experience, I have found it is quite useless for a Minister to say that his intention is this, that and the other because the various people who are connected with this afterwards will say that this is not in the Act.

I am not concerned with what the Minister says is his intention with regard to the interpretation of this. There must be a more accurate definition. If you take the words "or otherwise", it would mean to me that you cannot sell by auction without a licence or, in fact, that you cannot sell your own cattle in your own yard or you cannot allow your neighbour to send his cow to be sold in your yard or you cannot have a draught sale. You cannot sell a beast on the road. This could be operated to the detriment of the people who wish to sell.

I do not think that this is the Minister's intention. I do not think that this is deliberately put in here. It would not be the intention of any sane man. The words "or otherwise" should be removed from the Bill. If the Minister is bringing in a measure here it should be clearly understood but that is not the case in the Bill as it is. I have looked through various Bills quoted by the Minister here during the Second Reading speech and I find that in all those Bills the conditions are written out in detail and in language that is clearly defined. People know well in advance where they stand but here in this Bill we have this vagueness and lack of clarity not only in relation to this section but throughout the entire Bill.

Mr. M.J. O'Higgins

I should like to support Deputy Clinton's amendment. Like Deputy Clinton, I do not think that the Minister has inserted those words "or otherwise" in the definition of the Bill deliberately with the intention of capturing the conduct of business other than the business of auctioning at livestock marts. Deputy Clinton is quite right when he points out that what is important afterwards with regard to the interpretation of legislation by the courts is what is written into the Bill. Nothing the Minister says in relation to the Bill, nothing Deputy Clinton or any other Deputy says in relation to the meaning of particular sections or particular phrases in the Bill carries any weight at all, and the courts so far as I know are not even entitled, when they are interpreting the phrasing of a Bill or an Act, as it would be then, to have regard to what the Minister or any Deputy says. Consequently, there is, to my mind, an obligation, which falls heaviest I would suggest on the Minister, but an obligation on every Deputy in the House to clear his own mind in considering legislation passed through this House in order to ensure that the legislation which leaves the House will leave it in such a way as properly to express the intentions of the House and of Deputies in the House.

I do not believe it is the Minister's intention in the phrasing of this definition of a livestock mart to try to capture in that definition anything other than the livestock mart and the auctioning of livestock at a livestock mart. In fact, this definition, as it stands, quite clearly goes after a whole range of transactions which have nothing to do with the business proper of a livestock mart and which may certainly have nothing whatever to do with the auctioning of livestock. The definition the Minister is proposing covers "the business of selling livestock by auction or providing, for the holding of sales of livestock by auction or otherwise, a place adapted for the sale of livestock by auction". If the words "or otherwise" are taken out, the position will be a good deal clearer and it will certainly not weaken the Minister's definition if we are right, as I believe we are, in assuming that all he wants to do is to cover the auctioning of livestock at livestock marts.

From my reading of this, unless the words "or otherwise" are taken out, Deputy Clinton is quite right in suggesting that the definition, if it remains unaltered, can cover not merely the auctioning of livestock but the simple private sale of livestock anywhere; it could apply to a private sale in a man's field, paddock or backyard. I do not think there can be any questioning of that, so long as the words "or otherwise" remain in this definition section. If the Minister's sole purpose in introducing this Bill is to deal with livestock marts, to regulate the conditions and the conduct of such marts, then clearly the words "or otherwise" are not required. If they are omitted, the definition of a livestock mart will then read: "the business of selling livestock by auction or providing, for the holding of sales of livestock by auction, a place adapted for the sale of livestock by auction". There the position would at least be clear. It might not be desirable from the point of view of many people who object to this Bill, but it would at least be simple and clear-cut and would relate only to the selling of livestock by auction or to the providing of a place to enable livestock to be sold by auction. Once the words "or otherwise" are allowed to remain, it extends to far more than sales by auction. The Minister will, I think, appreciate that and I hope he will be prepared to concede that the point made by Deputy Clinton is a good one.

Mr. Blaney

I do not agree that the interpretation is that adopted by Deputy Clinton and Deputy O'Higgins. The provision specifically includes the words "or otherwise" for a particular reason; we read it on the basis, first of all, that the "business of a livestock mart" means the business of selling livestock by auction or providing, for the holding of sales of livestock by auction or otherwise, a place adapted for the sale of livestock by auction. What is at issue here is that at the place adapted for the sale of livestock by auction sales by auction or by hand come under the terms of this definition. That is what the "otherwise" is for; it is in relation to a place adapted for the sale of livestock. The livestock may be sold by hand rather than by auction. In other words, if there were an attempt to evade the provisions of the Act by the device of not auctioning at a recognised livestock mart or a place adapted for that purpose, that could be done in order to get around the nonlicensing of such an operation and the "otherwise" goes in, therefore, to cover that.

Mr. M.J. O'Higgins

Would the Minister not make it clearer if he spelled that out, if necessary in a subsection here? I take it the Minister does agree that, as it stands, it is wide enough to cover the eventualities about which Deputy Clinton and I have spoken. Taking it simpliciter, the plain and ordinary meaning is that it refers either to the sale of livestock by auction or to the sale of livestock otherwise than by auction, and “otherwise than by auction” could refer to private sales in a man's own paddock.

Mr. Blaney

Far be it from me to start interpreting for members of the Bar. It is not at all clear to me that the interpretation put on it by Deputy O'Higgins is, in fact, a clear or simple interpretation. It is neither simple nor clear. The Deputy misses the point. Regard must be had to the words "a place adapted for the sale of livestock by auction" in reference to "by auction or otherwise".

Mr. M.J. O'Higgins

That is so, but I have an amendment down, which we shall be discussing later, in connection with the word "adapted", which is, I think, also very loose and vague and does not cover the position, in my opinion.

Mr. Blaney

I am not a lawyer, as the Deputy well knows, but I can see the intention in this quite clearly. The interpretation advanced by both Deputy Clinton and Deputy O'Higgins is more obscure and does not represent, in my opinion, a true reading of the particular subsection. I do not want to start telling Deputy O'Higgins what proposed legislation means; I have to go on the basis of the meaning that I, as a layman, take from it. What is more important, this is the manner of putting it adopted by the parliamentary draftsman. I interpret it as a layman. Beyond that I cannot go to convince anybody.

Mr. Clinton

Does the Minister not agree that he had to reconstruct this himself in order to get it to make sense?

Mr. Blaney

The Deputy's colleagues would be out of business if there were no reconstruction.

Mr. Clinton

Surely it is not beyond the capacity of the parliamentary draftsman and the Minister to state clearly what this means? This is certainly not clear to me. It is not clear to Deputy O'Higgins, who is, as the Minister has pointed out, a lawyer. We are quite sincere in this. All we want is that the position should be clear. It is certainly not clear here. There is little point in the Minister telling us it is clear to him.

Mr. Blaney

But it is.

Mr. Clinton

There are many people to whom it will not be clear.

Mr. Blaney

That is where the boys come in. One will say it means this and another will say it means that.

Mr. Clinton

Then it is open to argument.

Mr. Blaney

So is every line in every Bill.

Mr. Clinton

If the Minister wants this "sale by auction or by hand", surely he can put that in?

Mr. Blaney

It might be "by foot" at that stage.

Mr. Clinton

I have yet to see cattle sold "by foot". That may be done in Donegal but not in this part of the country.

Mr. M.J. O'Higgins

I thought we would get back to the Donegal fair.

Mr. Clinton

It might be as well to keep away from that until we get some clarification. I put down this amendment. The section is not clear to me and I do not believe it is clear to other people either. I believe it is something that can be interpreted in many ways and, because of this lack of clarity, I am insisting on the amendment.

Mr. M.J. O'Higgins

The Minister is quite right when he mentions that this is qualified by the last phrase "a place adapted for the sale of livestock by auction;". However, at this stage and even when we have finished consideration of the Bill, there will be no clarification of what is required by way of material or anything else to constitute physically a livestock mart. Most of us have probably had some experience of the layout of some of the livestock marts. Because this is a matter that will possibly be governed by regulations, there does not seem to be anything to prevent an open field with railings around it and some makeshift provisions for containing cattle or sheep in different parts of it from being used for the purpose of auctioning livestock. It may be perfectly suitable, provided there is sufficient accommodation for the animals and sufficient accommodation for the sellers and the buyers. That, then, is a place that is suitable for the sale of livestock by auction. That is all the last six or seven words of this definition section require.

To my mind, any place where an auction of livestock can be held is a place which, under the terms of this definition, should be regarded as adapted for the sale of livestock by auction. In any such place which, under this definition, could be regarded as adapted for the sale of livestock by auction, if any type of sale takes place, even a private sale between a private buyer and a private seller, it is captured by this definition. I know it is not the intention of the Minister to capture it but in fact it is captured. If that were argued before any court in the land or before a jury of laymen and if it were left to them to say whether or not such a transaction is captured by this definition, I think they would agree that it is. We are conceding that the Minister does not intend that. I think that what Deputy Clinton says is all-important in a Bill of this sort, that we require to get the definitions clear, that we require to get the definitions tight, and it is necessary that we should endeavour to ensure that when this Bill leaves us, it will at least express what the Dáil and the Seanad intend it to express.

Mr. Clinton

Can the Minister tell the House why it is not written in, in the way he himself feels it should be written in, so as to make it more clear to everybody what is meant? Why does it not say ",...providing,...., a place adapted for the sale of livestock or otherwise ..."? That is certainly not what it says. Why does the Bill not say that?

Mr. Blaney

I do not agree that we need "otherwise" twice.

Mr. Clinton

Leave it out the first time.

Mr. Blaney

That would make a complete bags of it altogether.

Mr. Clinton

That is the meaning the Minister said——

Mr. Blaney

It is not. The meaning I have in this section from the draftsman is the meaning that was desired and this is his way of putting it. I can read it in the way that my desire can be covered: I cannot read it in the way put to me by either of the two Deputies. I agree that it is not the easiest reading. Nevertheless, I do not think the interpretation being put on it is the proper interpretation. If Deputy O'Higgins were asked for his opinion, not necessarily across the floor of the House, I question very much that he would advise me——

Mr. M.J. O'Higgins

Perhaps the Minister will have to.

Mr. Blaney

I do not think he would advise me as Deputy Clinton has interpreted this sub-clause.

Mr. M.J. O'Higgins

For the moment, leave out everything else in the definition there. If the Minister were asked what this "or otherwise" means, surely the reply he would make is that it means something other than the matter referred to? Looking at it in that sense, the position is that we say the sale of livestock by auction or in some other manner. If the Minister has one particular other manner in mind, the way to get over the difficulty is to spell it out, as Deputy Clinton has suggested, and to put it in.

Mr. Blaney

I do not see the difficulty——

Mr. P. O'Donnell

May I intervene on the amendment? I appreciate the difficulty in this matter. May I quote —though it may not be relevant—in relation to the introduction of the Intoxicating Liquor Bill, 1962? In paragraph 5, the White Paper deals with subsection (3), the provision dealing with people being on licensed premises after hours. The White Paper sets out that this provision has no relation to hotels and restaurants as these premises, even though licensed, have to remain open for unlicensed business. We all know that.

The court recently came to interpret it in a case in my county. I went to court. I mentioned something which I know to be absolutely wrong and I mentioned the White Paper. They said it is not spelled into the Act and that until it is written into the Act, they will continue to interpret the Act in the manner in which they had interpreted it. Not only did the district court do that but unfortunately the circuit court did it on appeal. When that Bill was going through this House —just as Deputy Clinton and Deputy O'Higgins are today—they were ad idem on it as to the interpretation of the section. The courts held differently. They said it was not the intention of the Oireachtas that was involved but the interpretation as they find it. Therefore, I appeal to the Minister in this connection.

Mr. Blaney

What has been put forward by Deputy Clinton in support of this amendment is not what he now knows to be the case. He wants a deletion. This would not serve the purpose that we now know to be the intention of a particular clause: it certainly would not serve the purpose of covering a sale other than an auction sale.

Mr. P. O'Donnell

Would the Minister put in an amendment of his own?

Mr. Blaney

For instance, what does "sale by hand" mean? Will somebody start defining it and shall we put in another section to say what it means? Theoretically, if we insert "sale by hand", there could be "sale by foot". It could be a nod of the head or any kind of sign at an auction or otherwise as the method of sale at a place adapted for it.

Mr. P. O'Donnell

A fair green.

Mr. Blaney

Not for auction.

Mr. P. O'Donnell

It could be. It is adapted for sale.

Mr. Blaney

This is for auction. This is a difference between one and the other. It is a place adapted for auction. We say you may not sell by auction or otherwise unless you have a licence.

Mr. M.J. O'Higgins

I could make a suggestion to the Minister as to how to get around that.

Progress reported; Committee to sit again.