Dáil Éireann díospóireacht -
Tuesday, 29 Jun 1976

Vol. 291 No. 13

Social Welfare (No. 2) Bill, 1976: Committee and Final Stages.

Section 1 agreed to.

SECTION 2

Mr. Andrews

I move amendment A1.

In page 2, line 25, after "refuses or" to insert "wilfully".

The purpose of my amendment is that the intended new subsection replacing the section of Social Welfare Act, 1952, should quite clearly indicate wilful neglect. In other words, it should read:

... who refuses or wilfully neglects to attend in accordance with the notice or who, having so attended, refuses to give evidence or refuses or fails to produce any document to which the notice relates shall be guilty of an offence and shall be liable on conviction to a fine not exceeding £100.

Then the effect of my amendment would be to give the section more force. It would quite clearly indicate that if a person wilfully neglects to do such and such a thing according to the section, under those circumstances he necessarily would be liable for the offence created.

Parliamentary Secretary to the Minister for Social Welfare (Mr. Cluskey)

I see what Deputy Andrews is getting at, but Deputy Andrews rightly has been insistent that social welfare legislation particularly should be made less complicated and as uniform as possible. The reason it has been left out is that in the original context of the 1952 Act section 49 (4) (b) this word did not occur and it was in order to try to have uniformity in social welfare legislation as far as possible that it is not included.

Mr. Andrews

I understand we have to be rather expeditious on this legislation, having regard to the build-up of other legislation ahead of us. Consequently, it will not be my intention unduly to delay the House on the Social Welfare Bill before us. However, the Parliamentary Secretary rightly states that it is a concern of mine and no doubt his that we should be making legislation, particularly in the field of social welfare, complicated, but the insertion of one word certainly will not complicate the issue in this instance. If anything it would make it more understandable and comprehensible and that would be my reason for putting in the wilful intention to commit the offence created, producing of course the sanctions set out in the section.

Mr. Cluskey

I have no strong feelings on the matter and I am advised that it does not add any legal force to the Bill. The intention was to try to have it worded similarly to the 1952 Act but I am not going to oppose it just for the sake of opposing it and if the Deputy feels strongly that it will help or enforce the wording of the Bill in any way, I am prepared to accept the amendment. The only thing I would point out is that if the amendment is accepted, consequently it will be necessary or desirable to amend line 27 similarly.

Mr. Andrews

Yes, that is right.

Mr. Cluskey

Subject to that I have no strong reservations about accepting the amendment.

An Leas-Cheann Comhairle

Does the Parliamentary Secretary propose to amend line 27 also?

Mr. Cluskey

Yes.

Amendment agreed to.

Mr. Cluskey

I move the following conequential amendment:

To insert "wilfully" after "refuses or" in page 2, line 27.

Amendment agreed to.

Mr. Andrews

I am grateful to the Parliamentary Secretary for his attitude. It is very encouraging that if one proposes an amendment it is met in the fashion with which the Parliamentary Secretary met it. It is appreciated.

Mr. Cluskey

I do not see any reason for opposing an amendment unless there is a definite reason or purpose for opposing it.

Section, as amended, agreed to.

SECTION 3.

Question proposed: "That section 3 stand part of the Bill."

Mr. Andrews

Again, the penalties in section 3 are quite considerable. I wonder could the Parliamentary Secretary outline to the House why the penalties were increased in such a draconian fashion. The Parliamentary Secretary is aware that the penalties for offences under section 49 of the 1952 Act were rather minor. Is it the view of the Government that the increase in the penalties as envisaged by this section will go towards a greater discouragement of intended offenders under the section and is this the philosophy behind it? The Parliamentary Secretary might also outline the methods of detection conducted by the Department of Social Welfare in relation to this and related offences and all offences under the social welfare code? Is it his intention to create a sort of corps of individuals specifically charged with the supervision of the social welfare code in general? It would appear that that is the philosophy behind the big increases in fines and terms of imprisonment.

Mr. Cluskey

In reply to the last question put by the Deputy, I should like to state that every social welfare officer, indeed, every official of the Department, is responsible, if he comes across an obvious breach of the code, to take appropriate action. Apart from that there are inspectors based at the social welfare offices throughout the country who have direct responsibility in this area. In reply to the first question put by the Deputy it is, as I stated previously, my hope that the penalties provided under this Bill will not have to be imposed. I hope the fact that they exist and that it is possible for a court to impose both of these maximum penalties will act as a deterrent. The Deputy mentioned that he was at a loss to understand why we thought them necessary and desirable. We were led to believe in this House that they were thought necessary and desirable by the Opposition.

I should like to refer the Deputy to columns 13 and 144 of Volume 289 of the Official Report of 24th March, 1976 which states:

Although the number of persons who engage in this type of activity is relatively small, when an abuse is discovered the media build it up as big as they can. It makes good reading. It is spoken about and built up out of all proportion and a type of resentment and resistance among the general public can be and to some extent has been built up by the highlighting of these isolated cases. That is where I see the dangers of the anti-social behaviour that these persons engage in and within a very short period of time a Bill will be introduced into the House for consideration of the House that will increase very substantially the penalties for persons who engage in this kind of activity and are found by the courts to have engaged in this kind of activity.

Mr. Andrews: Hear, hear. We would welcome it. The Parliamentary Secretary will get our support on it, anyway.

If one gets that kind of response during a debate on a Social Welfare Bill from the Opposition spokesman on Social Welfare one is entitled to assume that there is general agreement with regard to the desirability of this Bill and the penalties provided in it.

Mr. Wyse

During the course of the debate the last evening the Parliamentary Secretary said we were contradicting one another, that we agreed there was existing legislation and then said we were welcoming the present Bill.

Mr. Cluskey

I said that with reference to the Deputy's own contribution only.

Mr. Wyse

That is the point I wish to take up now. I should like to ask the Parliamentary Secretary to tell me the reason he is introducing this Bill if he is satisfied that the abuse is not to the extent alleged in the House and in the Press. If the existing legislation is effective enough why is he bringing in this Bill which proposes to increase the fines?

An Leas-Cheann Comhairle

We must keep to section 3.

Mr. Cluskey

The Deputy seems to be under the impression that a crime or an attempted crime is only serious or important if a big number of people commit or try to commit that crime. I cannot accept that view. The number of people engaged in a fraudulent claim against the social welfare code does not take away from the seriousness of the offence. It does not take away from the anti-social nature of the act. We should not judge the desirability of deterrents in relation to the number of people who may or may not be engaged or could be assumed to be engaged in a particular behaviour. The fact that the behaviour is wrong, the degree of seriousness with which the Oireachtas views that wrong behaviour, can be and is interpreted by the courts by the maximum penalties prescribed under law. I was gratified— I acknowledge this publicly—by the agreement of the Opposition spokeman, Deputy Andrews, that the number of persons who abused the social welfare code is relatively small and that the publicity given to the abuses blows it up completely out of proportion to the number engaged in them and the amount of money involved. That is not the point. Whether there is one abuse, hundreds of abuses or ten thousand abuses, we have to take it seriously. We do not judge the position by the number of people involved but by the seriousness with which we view the offence.

Question put and agreed to.

SECTION 4.

Mr. Cluskey

I move amendment No. 1:

In page 4, line 22, after "maternity benefit" to insert ", death grant,".

The effect of this amendment is to put in a benefit excluded from six months' disqualification. It is proposed to include death grants along with other benefits which are also excluded from disqualifications such as orphan's contributory allowance, maternity benefit and funeral expenses. Death grant was omitted from that category.

Mr. Andrews

Is death grant excluded from disqualification by definition anyway?

Mr. Cluskey

It is excluded now.

Mr. Andrews

For what reason is it excluded?

Mr. Cluskey

It is possible that there could be forged stamps involved. There could be some sort of illegal activity in arriving at the qualifying condition.

Amendment agreed to.

An Leas-Cheann Comhairle

Amendments Nos. 2, 3, 5, 6, 8 and 9 are related and, by agreement, these may be taken together.

Mr. Cluskey

I move amendment No. 2:

In page 4, lines 52 to 54, to delete "or such amount as is equivalent to twice the amount so unpaid or deducted, whichever is the greater,".

The purpose of my amendments is because we have been advised that it could be deemed unconstitutional to have fines exceeding £500 dealt with summarily. There are circumstances in which the fines under the existing proposals, which these proposals hope to amend, could possibly exceed the £500 limitation, which could be deemed to be unconstitutional. It is, in effect, a technical amendment.

Mr. Andrews

I understand that all these amendments are related. As the Parliamentary Secretary has stated, the possibility of the unconstitutionality of the section has been raised by his advisers. I assume that if we pass one on the basis of its being a technical amendment, the lot passes.

Mr. Cluskey

They are being taken together.

An Leas-Cheann Comhairle

They are being taken together for the purpose of discussion but there can be separate decisions if necessary.

Amendment agreed to.

Mr. Cluskey

I move amendment No. 3:

In page 5, to delete lines 13 to 18 and to substitute the following paragraph:

"(b) on conviction on indictment of such offences, of fines not exceeding specified amounts of not more than £2,000 or of imprisonment for terms not exceeding two years, or of both such fines and such imprisonment, together with, in the case of continuing offences, further such fines in respect of each day on which the offences are continued.".

Mr. Andrews

Amendment No. 3, as I understand it, intends inserting in the first line of section 4 (3) (b) the word——

An Leas-Cheann Comhairle

Could the Chair interrupt the Deputy for a moment? Have we agreed to amendment No. 2?

Mr. Andrews

Yes, we have, Sir.

An Leas-Cheann Comhairle

It was agreed to discuss the amendments together with separate decisions on them. In other words, the discussion would be over at this stage and you would get decisions on the amendments.

Mr. Andrews

I get the point.

An Leas-Cheann Comhairle

Does the Deputy wish to have a decision on No. 3?

Mr. Andrews

No.

Amendment agreed to.

Mr. Andrews

I move amendment No. 3a:

In page 5, after line 45, to add the following new subsection:

"(2) The Children's Allowances Act, 1944 is hereby amended by—

(a) the insertion in section 12 (1) of the following paragraph after paragraph (c):

`(d) who buys, sells or offers for sale, takes or gives in exchange or pawns or takes in pawn any children's allowance book,'; and

(b) the insertion of the following subsection after subsection (1)

`(1A) In any proceedings under this section the Court shall have particular regard to the economic circumstances of the person selling, offering for sale or pawning such children's allowance Book.'."

This amendment arose out of a point I made in relation to the section on Second Stage. My view is that there should be specific reference to the interchange of children's allowance books between the people who are probably under pressure and consequently need money and those so-called human beings who take the allowance book and give the unfortunate oppressed person money. This amendment was moved by me to take account of the special circumstances, social and otherwise, that would require an unfortunate citizen of this State to hand over his or her children's allowance book to some person who would be anti-social enough to take that book and hand cash to the oppressed person in exchange for it.

I agree—and the Parliamentary Secretary will no doubt make the point—that this amendment may reek of legislative piety, that there is no need for this pious intent in legislation and that its legal effect would appear to be nil. I would accept, if that was to be the criticism, that this amendment is set down as a guide to the court to take into account the special circumstances of a citizen who would have to hand over his or her children's allowance book in exchange for money.

It is for that reason that I propose this amendment on behalf of the Fianna Fáil Party. The principle behind the amendment is to ensure that the oppressed person would be given special consideration and that the oppressor would not be given any consideration. The person handing over the children's allowance book may be a person who in the normal way would do it whether he had money or not; but in the main you will find that there are people who have to deliver their children's allowance book to these people.

In our society children are generally treated with a high degree of respect and have a prominent position in the average family. If a mother is forced to dispose of her children's allowance book—an allowance which is specifically to cater for the child and to provide money to ensure that the child has food in its belly—she should be given special consideration by the court. The maximum penalty should be inflicted on the person taking the allowance book. One is open to the accusation that the amendment itself is somewhat flabby in the legislative sense. Nevertheless, the intention of the amendment is important. If the amendment is defective—and there is a possibility that it is—I would accede to the Parliamentary Secretary's request to withdraw it at this stage and to reintroduce it, perfected on Report Stage.

Mr. Cluskey

While I agree with the sentiments expressed by the Deputy, it is not necessary to accept the amendment in order to provide for the contingencies he says may arise. Such situations are provided for adequately in section 9 of the Bill not only in respect of children's allowance books but in respect, also, of pension books and other such documentation.

The Deputy will appreciate that in relation to penalties, those laid down by the Oireachtas are the maximum which may be imposed. There would be an obligation on a court to use their discretion in regard to all the circumstances obtaining in any case which may come before them, not least of which would be the mental anxiety and financial pressures on anyone who, technically, may be in breach of the law. Therefore, I am sure that on reflection Deputy Andrews, as one associated with the courts, will accept, first, that it is not necessary to provide specifically for contingencies in respect of children's allowance books and, secondly, that it is the practice of the courts to take into consideration all the circumstances surrounding a defendant. We are merely setting down the maximum penalties that may be imposed. There is hardly any Deputy who would wish us to interfere in any way with the normal discretion that can be exercised by the courts in these matters.

Mr. Andrews

The Parliamentary Secretary is correct in his observation that section 9 refers to children's allowances but if he refers to the section mentioned in section 9, that is, section 12 of the Children's Allowances Act, 1944 he will realise I was fully aware that penalties for the abuses in question are being increased by virtue of section 9 of this Bill. What I wish to do is to add after section 12 (1) (c) of the 1944 Act a paragraph (d) as set out in my amendment. As the Parliamentary Secretary stated, nobody in this House would suggest interfering with the discretion of the courts but in the circumstances of such a serious anti-social offence as that which we are contemplating here, it might be as well to spell out in legislation that particular regard would be had to the person who is oppressed by the oppressor. Since there is so much talk of reforming social legislation, it would be no harm to include a provision of the type mentioned in the amendment.

Mr. Cluskey

I could accept the amendment if it were not for the fact that the situation to which it refers is provided for already. Surely Deputy Andrews is not suggesting that it is a lesser offence to take a person's old age pension book and use it in the way in which he suggests children's allowance books might be used. I join with the Deputy in condemning the despicable behaviour of those who traffic in children's allowance books but I expect that such people are very small in number. I expect, too, that with the development of the credit unions, this abuse is not practised as widely now as it may have been in the past. While the very admirable development of the credit unions may not have eliminated these abuses, it has curtailed them considerably. I cannot regard it as being a lesser offence against society to take advantage of an old age pensioner in regard to his pension than to take advantage of a mother in regard to children's allowances. In section 9 we are making it an offence for anyone to traffic in relation to any of the documentation in regard to social welfare. I do not think we can go further than that.

As I indicated earlier, I am not opposing merely for the sake of opposing but I would remind Deputy Andrews that he has been one of the most vocal critics of the complexity of the social welfare code and that to accept unnecessary amendments to subsections of this Bill would complicate that code further.

The decision as to what penalty, if any, and having regard to the maximum laid down by the Oireachtas, is a matter entirely for the discretion of the court and, no doubt, the elements referred to by the Deputy would be taken into consideration by the court in reaching their decision.

Amendment, by leave, withdrawn.

Section, as amended, agreed to.

Section 5 agreed to.

SECTION 6.

Mr. Cluskey

I move amendment No. 4:

In page 6, subsection (3), lines 31 to 33, to delete paragraph (b) and to substitute the following paragraph:

"(b) by leaving it at or sending it by post to any place in the State at which the body corporate conducts business, or".

This is purely a technical amendment and one which will, in the opinion of the draftsman, improve the wording. In fact, it moves the words "corporate body" from the first to the second line. In essence, that is its effect.

Amendment agreed to.

Section, as amended, agreed to.

SECTION 7.

Mr. Cluskey

I move amendment No. 4a:

In page 7, lines 13 and 14, to delete "but payable by him as a bankrupt or arranging debtor".

This is a late amendment and I should like to take this opportunity of apologising to Deputy Andrews for its lateness. I was not aware of it myself until this afternoon. We have been advised by the parliamentary draftsman that while the Bill reads "but payable by him as a bankrupt or arranging debtor" it is not possible to do that; that one only becomes bankrupt when the court has finalised its hearing and declared him bankrupt. Therefore, it is purely a technical amendment but, in the circumstances, a very desirable one.

Amendment agreed to.

Section, as amended, agreed to.

SECTION 8.

An Leas-Cheann Comhairle

Amendments Nos. 5 and 6 have already been discussed with amendment No. 2.

Mr. Cluskey

I move amendment No. 5:

In page 8, lines 49 to 51, to delete "such amount as is equivalent to twice the amount so unpaid or deducted, whichever is the greater, or".

Amendment agreed to.

Mr. Cluskey

I move amendment No. 6:

In page 9, to delete lines 9 to 14 and to substitute the following paragraph:

"(b) on conviction on indictment of such offences, of fines not exceding specified amounts of not more than £2,000 or of imprisonment for terms not exceeding two years, or of both such fines and such imprisonment, together with, in the case of continuing offences, further such fines in respect of each day on which the offences are continued.".

Amendment agreed to.

Question proposed: "That section 8, as amended, stand part of the Bill."

Mr. Wyse

In regard to conviction of an employer failing to stamp the cards of an employee, in the absence of the Parliamentary Secretary the last evening, I placed a lot of emphasis on this important section and appalling abuse. At this stage of the Bill I feel the Parliamentary Secretary should give it very serious consideration. The problem is that where a man or woman may work for ten or 15 years not knowing that the employer is failing to stamp cards, and then makes an application for social welfare benefit, it is only then that the employee becomes aware of the fact. Yet the factory inspector, I understand, is supposed to check all documentation to ensure that the employer stamps all employees' cards. There can be a lot of hardship involved here— of which I am sure the Parliamentary Secretary is aware—when people may have to wait for months while an investigation continues by Departmental officials. We should endeavour to bring about a more lenient approach where the employee is concerned. I believe that, where evidence is submitted to the Department of Social Welfare, payment should be made forthwith to the employee rather than his having to await the outcome of a prolonged investigation.

Secondly, it is time that some documentation was prepared by the Department and sent to an employer to be filled in by him every quarter, to be signed by an employee, whether a shopsteward or somebody of that kind in order to ensure that later, if and when there is abuse, the records will show that the person was in the employment of the employer at the time. After all, the employee has made a contribution, through the employer, to the Department of Social Welfare. Perhaps the Parliamentary Secretary would give us a little more information as to how we can check this type of abuse.

Mr. Cluskey

I accept the seriousness of the type of offence Deputy Wyse has outlined. Indeed, I welcome his comments on it and also his total condemnation of employers who engage in that practice. I do not know of any case in which a period of time such as the Deputy mentioned, of ten to 15 years, elapsed before such abuse came to light. There have been cases where a couple of years have elapsed and we were not aware that the employer was not stamping the cards of a number of employees. But, where this happens and we are satisfied there has been no collusion between the employee and the employer for the nonstamping of cards, we credit the employee with full benefit. I would not be prepared to say that a long period of time elapses before payment is made. Although I have been critical of delays in social welfare payments, I have been agreeably impressed by the speed with which officers of the Department have been able to establish whether or not collusion has taken place and implement clearance of payment of a particular benefit to employees who find themselves in such circumstances.

In perpetrating such a practice not only is the employer defrauding the State but he is also robbing his own employees. He is stopping their part of the contribution from their wages and using it for his own purposes, not forwarding it to the Department of Social Welfare, with total disregard for the consequences on those people in his employment. The provision in this Bill for very substantially increased penalties for that type of practice, I hope, will act as a deterrent. I hope such employers will realise now that the penalties that may be imposed by the courts are such that the risk is no longer a good one and that anybody who has been, or who may be anticipating, engaging in such practice will be deterred from doing so by the passage of this Bill. I was glad to note, and appreciate, the highlighting of this aspect of abuse by Deputy Wyse.

Mr. Wyse

I must say I agree fully with this particular section but is it not true that there is little use in talking about fines and so on unless you have sufficient inspectors going about seeking out abuses? There are reasons why the Minister is unable to employ more people as inspectors and that is why I am suggesting to the Parliamentary Secretary that there should be some form to be signed every month or, perhaps, every quarter by both the employer and the employee so that, should a dispute arise and there has been abuse, there would be some record in the Department. I know the Parliamentary Secretary is trying to come down on this particular abuse. It is appalling. Last week I had six cases on my hands. One was that of an individual who set up in business and after eight or nine months we could not find him and it is the unfortunate employees who suffer. If there was a form proving that an employee was employed that would safeguard the Department and it would certainly help the employee.

Mr. Cluskey

I am very conscious of the fact that this is a very difficult problem. As I said in my Second Reading speech, there are 88,000 registered employers and this is an extremely difficult area to police. That is why we have enforced the law with regard to inspection of relevant books, and so on. I also mentioned at the same time that I am examining the situation to find out whether it would be possible to give the right to a trade union representative to inspect all the cards of his members in a particular employment. Under existing law an employee has the right to inspect his own card but there are inhibiting factors militating against an employee going up to his employer and saying he wants to see his insurance card, thereby implying he does not believe the employer is stamping the card. If we could give the right to an accredited trade union representative, that should go a long way towards solving the problem.

Question put and agreed to.

SECTION 9.

An Leas-Cheann Comhairle

Amendment No. 7 is in the name of the Minister and amendments Nos. 10, 11 and 12 are related amendments and can be discussed with amendment No. 7.

Mr. Cluskey

I move amendment No. 7:

In page 10, at reference number 2 in the Table to subsection (1), to delete "Section 5 of the Pension" and to substitute "Pensions".

These are purely drafting amendments relating to the reference to "pension books" in the 1932 Act and the purpose is to bring the reference into line with the citation in that Act as given in section 6 (1). It has come to light that the title of the Act as shown elsewhere in the Act and in subsequent legislation differs from that shown in section 6 (1) which the parliamentary draftsman says is the correct legal way of referring to the 1932 Act. Instead of using the phrase "pension book" or "pension books" the correct phrase is "pensions books". It is a purely technical amendment and it does not take away from or add to the substance of the legislation before the House.

Amendment agreed to.

An Leas-Cheann Comhairle

Amendment No. 8 has already been discussed.

Mr. Cluskey

I move amendment No. 8:

In page 10, subsection (2), lines 22 to 26, to delete "a fine not exceeding the amount specified in that subsection, be liable on summary conviction to a fine not exceeding £100 and, in the case of a continuing offence, to a further fine not exceeding £10 for each day during which the offence is continued" and to substitute "any fine specified in that subsection, be liable on summary conviction to a fine not exceeding £100".

Amendment agreed to.

Section, as amended, agreed to.

Section 10 agreed to.

SECTION 11.

Mr. Andrews

I move amendment No. 8a:

In page 11, to delete lines 37 to 41 and substitute "the defendant shall be presumed innocent until proved guilty".

We had a little bit of badinage about the intention behind section 11. My proposition was that the onus of proof was being shifted onto the person accused of an alleged offence under the social welfare code and it appeared to me that was a wrong legal philosophical concept. Clearly, that is the position here and that would appear to be the intention of the Parliamentary Secretary. As we pointed out on the last occasion, we are operating here under the common law accusatorial system as distinct from the inquisatorial system and a person is presumed innocent until proved guilty. That is to me a proper legal concept. It is one to which we have been subscribing since we came under the common law code. The Parliamentary Secretary made the point on the last occasion that if what I suggested were accepted I would be encouraging people to make false statements and, arising out of these false statements, it would be a matter then for the Departmental officials, the Garda, or whoever it might be, to prove their case against the individual. That appears to me to be a reasonable proposition. At present an accuser must prove his case against the accused and if the accused cannot produce evidence to convince the court, then the court finds him guilty of the offence. The accuser must make his case and it is for the accused to rebut the allegations made against him. The section, as it stands, reverses that situation. The accused is guilty in the first instance and he must prove his innocence. This is a dangerous departure, if my reading of the section is correct. We did not have much of an opportunity to go into the matter in depth on the last occasion but no doubt the Parliamentary Secretary will convince me that my interpretation is not altogether correct.

The Parliamentary Secretary made the point that there are a number of precedents in relation to a section of this kind. I have not the benefit of the back-up services available to him. I should like to know if there are sections of this nature in other Acts under the social welfare code or is this the first time that such a section has been included? This is just a query and is not in any sense a trap for the Parliamentary Secretary. If he thinks it is such, I do not wish him to reply to the query.

Mr. Cluskey

The Deputy qualified his remarks by saying that he may be under a misapprehension with regard to the section; his reading of it, as indicated by his amendment, bears out that he is under a misapprehension. The presumption of innocence until proved guilty is a fundamental provision of our legal system and it is not necessary to legislate specifically for it.

The Deputy mentioned that if the accuser goes into court and presents his evidence the obligation lies with the accused to rebut it and he seeks to replace the following:

the defendant shall be presumed to have given any information contained in the application (or to have caused it to be given on his behalf) and, where such information is false, with full knowledge of such falsity and with intent that it should deceive; but this presumption may be rebutted.

What we are proposing is a departure with regard to social welfare legislation but there are a number of precedents. In this connection I would mention the Criminal Justice Act, 1964, and the Road Traffic Acts where this provision is quite common. This is not a new feature of our legal system and in no way does it presume guilt. If a person makes an application and states certain alleged facts that are found to be untrue, it presumes that the person in making the application falsely stated the facts. If this is not the case, the person has an opportunity in the courts of putting forward his case or of explaining where the mistake occurred. I am glad the Deputy qualified his remarks at least by questioning the assumptions he made. There is no intention to change the onus of guilt to the accused person.

Mr. Andrews

The Parliamentary Secretary has put an excellent defence of a bad case but nothing will convince me that the interpretation he has put on it is the correct one. As we understand it, the section applies to the various enactments set out under subsections (a), (b), (c), (d), (e) and (f). The Parliamentary Secretary has made the important point that this is a completely new departure so far as the social welfare code is concerned. I do not understand why it is necessary at this late stage to introduce such a section.

We are making the case that where a person is accused he is brought into court on foot of statements made by him under the social welfare code. In the first instance he has to rebut accusations made against him. That appears to be shifting the onus of proof.

Mr. Cluskey

That is not correct and the Deputy knows it. I do not mind his making a case but I object when he deliberately misinterprets and mis-states the situation. In the first instance, the onus and responsibility would lie naturally with those making the accusation and the Deputy knows that is the case.

Mr. Andrews

Again, the Parliamentary Secretary is rushing to the defence of the indefensible. I have put my case on my reading of section 11 (2) and this is why I introduced what I consider a gem of an amendment. It is a very fundamental amendment to ensure that the legal code is preserved against attack by legislation of this kind. Let us go through section 11 (2). No doubt the Parliamentary Secretary will help the innocent on this side of the House——

Mr. Cluskey

If I could find them I would be glad to do so.

Mr. Andrews

I am sure the Parliamentary Secretary will accept that I am innocent until proved guilty.

Mr. Cluskey

Innocent of what?

Mr. Andrews

Innocent of misrepresentation, as the Parliamentary Secretary has suggested. It is very unreasonable of the Parliamentary Secretary to make that case when he knows it is not so. The very maximum I could be accused of would be misinterpretation but certainly not of misrepresentation. That was never my intention.

As it appears my amendment will not be accepted and because of some kind of agreement between the Whips. I do not wish to take up the time of the House for much longer. I realise that there is a large backlog of legislation to be dealt with after this matter. Subsection (2) states:

Where in a prosecution for an offence under any of the Acts to which this section applies, or under regulations made under or applying the provisions of any of those Acts, it is shown to the satisfaction of the court—

(a) that an application has been made by a person (in this section referred to as the defendant) for benefit, allowance, pension or assistance under any of the Acts to which this section applies, and

(b) that as a result of that application benefit, allowance, pension or assistance under any of the Acts to which this section applies has been paid to any person (whether or not such benefit, allowance, pension or assistance was that applied for and whether or not it was paid to the defendant),

the defendant shall be presumed to have given any information contained in the application (or to have caused it to be given on his behalf) and, where such information is false, with full knowledge of such falsity and with intent that it should deceive; but this presumption may be rebutted.

I would ask the Parliamentary Secretary in those circumstances to accept my amendment.

Mr. Cluskey

As I have explained to the Deputy, there is no intention— nor does this Bill try to shift the burden of proof from the accuser to the accused. That is a fundamental principle in our law. This Bill does nothing to change that. The Deputy's amendment is totally unnecessary because it seeks to amend something which does not exist.

Mr. Andrews

Could the Parliamentary Secretary explain why this section has been inserted? As he has stated, it is a new departure. Would he explain in detail why he found it necessary to insert it in the legislation before us?

Mr. Cluskey

Under this section, if people give information to the Departde ment and, on the basis of that information they are paid benefit or assistance, or money, or even if they are not paid, if they make application and seek to obtain it and the information they give is false, that will be used in any proceedings. That is what the section seeks to do. It will be entirely a matter for the courts whether or not they accept it as evidence. That lies in the discretion of the courts.

Mr. Andrews

The Parliamentary Secretary has not answered my question. Why did the Government feel it necessary to insert what the Parliamentary Secretary has said is a new departure?

Mr. Cluskey

Deputy Andrews made a most eloquent case in favour of the insertion of this during the Second Stage debate. In his opening remarks he went through quite a long list of prosecutions under the various Social Welfare Acts. He also stated there were quite a number of dismissals. It was found that it would help in ensuring that a conviction could be obtained where an offence had been committed if the statement of the person making the claim was before the courts and where it could be clearly shown to be false, but the onus was on the accuser to show there was a false statement and that no payments would have been made but for the fact that a false statement had been accepted as the truth, and that the statement was knowingly false when it was made. It does not shift the onus of responsibility.

Mr. Andrews

As reported in Volume 291 of the Official Report of 22nd June, 1976, I argued persuasively against section 11. I say that with all the humility at my disposal. I made a fairly reasonable case which I extended here this afternoon about the shifting of the onus of proof. The Parliamentary Secretary has stated that effectively section 11 is a new departure in legislation of this nature. That was an interesting comment.

Mr. Cluskey

It is a new Bill. There is a penalty of £2,000. The provision for two years' imprisonment is a new departure. Deputy Andrews is trying to single out one issue and highlight it. It is a new Bill. It provides new penalties. It provides for a sentence of imprisonment.

Mr. Andrews

Of course there are penalties. We are talking about the concept.

Mr. Cluskey

The penalties are increased substantially.

Mr. Andrews

We are talking about a new concept being introduced.

Mr. Cluskey

It is not a new concept. It is enshrined in other legislation.

Mr. Andrews

But not in the social welfare code.

Mr. Cluskey

This concept was enshrined in legislation in 1964 in the Criminal Justice Act. It is also in the Road Traffic Acts introduced by the Deputy's party.

Mr. Andrews

I accept that.

Mr. Cluskey

The Deputy is trying to give the impression that it is something terrible, that it is a new concept.

Mr. Andrews

I am not trying to give the impression that it is something new or terrible. I accept that it applies to the Criminal Justice Act of 1964 and the Road Traffic Acts of 1933, 1961, 1968, and so on. The Parliamentary Secretary makes the point that it is quite common in the Road Traffic Acts. Of course, I would not accept that at all. My point is that it is a new concept in the social welfare code. The Parliamentary Secretary has admitted that.

Mr. Cluskey

Is the Deputy stating that this is bad law?

Mr. Andrews

I am suggesting that shifting the onus of proof is a very poor concept.

Mr. Cluskey

Is the concept bad law?

Mr. Andrews

Fianna Fáil in Government were responsible for the whole area of social welfare.

Mr. Cluskey

If the Deputy accepts that it is good law in one area, I cannot understand how it can be bad law in another area. It is either a good law or a bad law. If it was a good law in 1964 in relation to one aspect of the law, surely it must remain a good concept and a good law in 1976 in respect of another aspect of the law.

Mr. Andrews

The Parliamentary Secretary has lost himself in this regard which is a pity. The kernel of my argument is that, on the Parliamentary Secretary's own admission, this is a new departure in the social welfare code. This is shifting the onus of proof as we see it and that is bad.

Mr. Cluskey

I have explained it to the Deputy repeatedly. His understanding of the section is not correct. There is no shifting of the onus of proof.

Mr. Andrews

We will test it anyway.

Question: "That the words proposed to be deleted stand" put and declared carried.

Amendment declared lost.

Section put and declared carried.

SECTION 12.

Mr. Cluskey

I move amendment No. 9:

In page 12, lines 5 to 7, to delete "together with, in the case of continuing offences, further such fines in respect of each day on which an offence is continued".

Amendment agreed to.

Section, as amended, agreed to.

SECTION 13.

Question proposed: "That section 13 stand part of the Bill."

Mr. Andrews

Section 13 (2) has given me some considerable difficulty. Could the Parliamentary Secretary tell me the reason for the substitution of section 6 for section 6 of the 1932 Act? It is rather complicated.

Mr. Cluskey

The purpose of this section is to remove from the residence test for non-contributory old age pensions, including blind pensions, the discrimination that exists between the treatment of nationals of the State and non-nationals.

Mr. Andrews

That is fair enough, just to have it said.

Question put and agreed to.

SECTION 14.

Mr. Cluskey

I move amendment No. 10.

In page 13, subsection (2) (b), line 1, to delete "Pension" and to substitute "Pensions".

Amendment agreed to.

Mr. Cluskey

I move amendment No. 11:

In page 13, subsection (2) (b), line 4, to delete "Pension" and to substitute "Pensions".

Amendment agree to.

Section, as amended, agreed to.

TITLE.

Mr. Cluskey

I move amendment No. 12:

In page 2, line 6, to delete "PENSION" and to substitute "PENSIONS".

Amendment agreed to.

Title, as amended, agreed to.

An Ceann Comhairle

Pursuant to Standing Order 95 (3) I have to report specially to the Dáil that the Committee has amended the Title to read as follows:

An Act to amend and extend The Old Age Pensions Act, 1908 to 1976, The Pension Books (Prohibition of Alienation) Act, 1932, The Unemployment Assistance Acts, 1933 to 1976, The Widows' and Orphans' Pensions Acts, 1935 to 1976, The Insurance (Intermittent Unemployment) Acts, 1942 and 1963, The Social Welfare (Children's Allowances) Acts, 1944 to 1975, and The Social Welfare Acts, 1952 to 1976, and to provide for other matters connected therewith.

Agreed to take remaining Stages today.

An Ceann Comhairle

Since there are no amendments on Report Stage, we shall proceed to the Fifth Stage in accordance with the recent change in Standing Orders.

Question proposed: "That the Bill do now pass."

Mr. Andrews

As this is the last opportunity we shall have of discussing the question of social welfare in Dáil Éireann for some months, can the Parliamentary Secretary tell the House what is the up-to-date position in relation to the consolidation of social welfare legislation? As we have agreed, this is certainly an appalling prospect for any person, to have to measure up to consolidating social welfare legislation introduced since the foundation of the State. It is, nevertheless, a prospect that has to be faced up to, because we cannot continue with the type of legislation which is now before us, namely, the Social Welfare (No. 2) Bill, 1976. The consolidation of social welfare legislation is one of the major and fundamental reforms required. It is a huge problem and one that cannot be minimised. It should not really be brought into the political arena, not that there is anything wrong with politics or politicians; personally, I feel privileged to be a politician. However, there is, if not an immediate need for reform by way of consolidation in social welfare, a sense of urgency called for in the matter. The Parliamentary Secretary might assist the House in this respect by giving us an up-to-date report on what progress has been made in regard to consolidation.

The Government have apparently taken on themselves the mantle of being the heroes of the social welfare recipients and have, no doubt with the help of their propagandists and those people who have certain media outlets open to them, got across the view that they were almost entirely responsible for the social welfare code.

An Ceann Comhairle

I am sorry to interrupt the Deputy, but all we can discuss on Fifth Stage is what is contained in the Bill.

Mr. Andrews

I accept that, but in talking about consolidation and about reform in the area of social welfare. I referred the Parliamentary Secretary specifically to the lengthy sections 4 and 8 and said it represented a departure for the Government in relation to their intended programme of social welfare reform, that the mind boggled when there were sections containing 160 lines in one instance and over 140 in another. Therefore, the consolidation of the social welfare code would be uppermost in our minds. No doubt the Parliamentary Secretary will come back with the argument that we were in Government for 16 years and so on, but on the basis of having been in Government for 16 years and more, we feel that we did discharge our functions in the whole area of social security in a proper fashion. Maybe the Parliamentary Secretary would help us in respect of the question of consolidation.

Mr. Cluskey

Most of what Deputy Andrews has contributed now I find has no relationship whatever to what we are supposed to be discussing on the Bill. However, he did raise the question of consolidation. I am somewhat surprised, because he raised the same question last week, and I gave the answer to it last week. We are operating mainly under the 1952 Social Welfare Act. I never heard the need for consolidation mentioned by a Fianna Fáil speaker until the last two years. In fact, the first person to mention the question of consolidation in this House was myself in the Social Welfare Bill. Deputy Andrews was realistic enough, when he raised the same issue last week, to acknowledge that it was a very complex and a very detailed operation. Undoubtedly, he was correct in stating that. The need for consolidation is probably more urgent now because there has been a lot of activity in the last three years in the social welfare field and there has been a lot of legislation. The inactivity in the 16 years previous to that probably did not highlight the necessity for consolidation of the social welfare code as much. That might be the possible explanation why it has now dawned on some of the Fianna Fáil spokesmen that there is need for consolidation in this area.

As I said last week, in reply to the same query by the same Deputy, a draft Bill is with the Attorney General. We have made very substantial progress in a very complex and a very detailed area. It is my hope that a consolidation Bill will be before the Dáil in the autumn. I accept the point made by Deputy Andrews of the desirability of such a Bill. I hope when the Bill is out that it will help Deputies and others concerned in the field of social welfare in their work and in their research. I do not believe there are any other issues raised by Deputy Andrews on this Bill which call for reply. I would like to take this opportunity of thanking the House for the way, in the main, the Bill was dealt with.

Question put and agreed to.