I presume that is the Bill as amended?
FISHERIES BILL, 1923—FOURTH STAGE.
I beg to move, if I am in order, that the new sub-section added yesterday be deleted. Am I in order?
That would be in order during consideration on Report, provided there is not any other amendment higher up on the Paper. If there is not I will take the amendment of Senator de Loughrey now.
I beg to move that the new sub-section be deleted. That is the sub-section added yesterday on the Committee Stage. In discussing the matter with some Senators yesterday, I was convinced that some of us did not realise that one effect of this new sub-section would be to hold up the Bill, for the present close season, for the time which, in the opinion of the Ministry and in the opinion of most people who have knowledge of this subject, would be a period that would be absolutely necessary to have this Bill operating. As a matter of fact, the knowledge that this Bill was to be promoted has had a deterrent effect on poachers, and I think that now that we have made our position clear, and as I understand the Minister has guaranteed that——
I rise to a point of order. Is it in order on the Report Stage to strike out an amendment which has been inserted in Committee?
Has there not been a ruling on that already?
It is quite clear that the Seanad itself has the power to reconsider the Bill, as referred to it from its Committee, be that a Select Committee or the Seanad sitting in Committee. Order 70 gives special power to the Cathaoirleach to refuse an amendment which has been rejected in Committee on its being again brought forward. This is an amendment which has been inserted and I believe I am correct in ruling that the Senator is entitled to move an amendment which will delete that section, thereby asserting its own power to revise the whole Bill as received.
May I refer you to Standing Order No. 29?
Standing Order 29 does not apply. It refers to a decision of the Seanad being rescinded. The decision made yesterday was a decision of the Seanad sitting in Committee, not a decision of the whole House. I do not think that Standing Order 29 could be held for a moment to prevent the right or the power of the Seanad to reconsider an amendment which was inserted in Committee and which was sent up to it on report.
As I was saying, I understood the Minister, on yesterday, to give a guarantee that the spirit of this Section will be carried out under present procedure. I think myself it would be a very bad thing if you have, as in this case, minimum and maximum penalties laid down, with no power to remit. The Judge or Justice, if a case is proved, imposes certain fines or punishment. Now, there might be a case in which gross injustice would be inflicted. Even in the case of murder there is a remitting authority, and I cannot see why, if we have any confidence in our Government or Ministry, they should be debarred from having that power in this case. I move that this sub-section be deleted. I am sure the Minister made it quite clear that the spirit of that sub-section would be carried out.
I second Senator de Loughrey's amendment.
As the mover of the amendment yesterday, I should like that the Seanad should be quite clear as to what is its position in the matter. After a clear debate and a vote, the Committee carried this amendment yesterday. No fresh matter or argument whatever has been introduced, and yet here to-day, without ample notice, anyhow with only the notice that we received when we came here—in fact, without any notice—a Senator stands up and asks that our deliberate judgment taken yesterday should be rescinded. And the grounds for doing that are this, as I understand, that this Bill is so important it should pass in spite of our considered judgment. In fact, another case of putting us practically in the position of holding up legislation which is in the interests of the country! I think the time has come when this Seanad must clearly consider its attitude. If the Government regard this Bill as so important they certainly have no right to assume that it is non-controversial. They assumed it was noncontroversial, and, on that assumption, they sent it up to us at the last moment where if it is amended it cannot come into operation until the Dáil reassembles. The Government has made a miscalculation as to the opinion of the Seanad. The Seanad, after considering my amendment carefully, adopted it. I can see no possible justification for passing this Bill because the measure is alleged to be of urgent importance. I do not think I need again argue the amendment on its merits.
The whole case was heard yesterday, and nothing further has been introduced. We are simply making it quite clear that in serious cases of poaching no person, except the Judge or Justice, who has knowledge of the facts, shall be able to recommend legally the remission of the sentence, and the Government must and can only act on such recommendation. If the Seanad considered that a wise amendment, one finds it hard to see on what grounds they can possibly change their minds. I would ask Senators to again record their opinion and insist on this amendment being retained.
Senator Sir John Keane says this Bill is being more or less forced down people's throats. He says that I have declared it is so important that it should pass in spite of the considered judgment of the Seanad. This amendment is presumably brought forward to have the considered judgment of the Seanad. I consider the Bill important, and that a lot of its value will be lost if this close season is missed. It was not the fault of my Department that the Bill was not brought forward long before this. It was delayed a good deal in the Dáil because of a great rush of business and the difficulty in getting Government time. It was my wish that the Bill would have been in operation since the middle of November, but it was impossible to do that.
The Bill will really be not worth passing if it does not pass now. It was chiefly directed towards the present close season, when it was first contemplated, and the provisions in it were intended to form part of a larger Bill which will be introduced before the next close season, and which will recodify the whole Fishery Law. The reason certain provisions were taken out and put into a separate Bill was to handle the situation governing the present close season. Apart from the question of the loss entailed through the Bill not being in operation this season, and apart from the question of fisheries generally, there is something in the amendment which would create a precedent that would, I believe, be very bad in general legislation. I believe it would not tend to greater regard for the law, and it would not tend towards the better administration of justice, if the law is so rigid that there is no room for tempering justice with mercy.
Under the law as it stands, in connection with every offence that is dealt with by a Judge or Justice, no matter what the sentence may be, there is power of remission. There is power for a reduction or an entire wiping out of the sentence, if necessary, according to the circumstances. The point the Senator has been making is that no penalty inflicted under this Bill shall be reduced or remitted save on the recommendation of the Judge or Justice. Yesterday I pointed out the actual procedure. Nobody is going to remit a sentence here without first consulting the Judge or Justice who tried the case. What is really suggested by the amendment is to cut off the remitting authority altogether, and that is a thing that is not at all advisable.
The Minister has told us that he regards this Bill as of such very great importance for the protection of fisheries during the close season, that it is absolutely essential it should become law at once. Up to the present there have been fishery laws in existence; they are in existence to-day. No doubt, fisheries might be improved, and this Bill proposes to improve them. But to tell us that everything in connection with fisheries is going to go to pot because this Bill is not in operation, is pure eyewash. The Minister tells us further that he does not intend to remit fines. If the Bill is so very important as that why does he not accept the amendment? Why does he think that he is in a better position to decide whether or not fines should be remitted than the Judge or Justice who has heard the case and who knows the circumstances?
We who live in the country know something about those things, and we know that the power of remission has given rise to the greatest scandals. We know perfectly well that the fines are invariably paid by the dealers. I have already related the case of the man who came to the dealer and got the amount of his fine from her. He then went to Dublin and got the fine remitted. The result was that he got a premium on his poaching; he got a premium for destroying the valuable fisheries of the nation. The Minister thinks he is a super-man, and knows much more than anybody else. If he thinks that these backstairs influences will not continue, surely the Justice who has heard the case, who knows the circumstances and who is on the spot, is in a better position to decide whether the fines ought or ought not to be remitted, and is aware if there is any injustice being done by the infliction of a fine. Is he not in a better position to so decide than anybody who has only third party evidence to go upon? There is another question which affects us. We have had innumerable instances of Bills being thrust upon us here, and we were told to pass them as they were urgent, or else they would be useless. We have been promised amendments to these Bills, and what do we find? Bills have come back to us without a single amendment.
We have been appointed to revise legislation which might be hastily considered. We are supposed to have some knowledge of the country, and if, after careful consideration, we conclude that certain amendments should be inserted, we will not be doing our duty if we do not insist on them. It is belittling the Seanad and the Constitution if we are treated in this manner.
The Minister for Fisheries has told us that this Bill has come back to us for the considered judgment of the Seanad. Yesterday the Seanad met in Committee and gave its considered judgment. It seems to me that asking the Seanad to consider, within twenty-four hours, the matter over again, without the introduction of any new reason why it should be altered, is trying, if possible, to take away from the importance and dignity of the Seanad. Sir John Keane, in speaking against the amendment, realising that he argued thoroughly and convincingly yesterday, took what, to my mind, was the proper course when he left it to Senators to realise the facts as they stand. Knowing that in their minds, carrying with them the conviction which he gave to them yesterday, and feeling that nothing would induce the Seanad to be so volatile as to pass this amendment without any argument but the argument which was brought to us more than once of the necessity of the Bill —bearing all these things in mind, I think the Seanad will be slow to accept this new amendment. The Minister speaks of seasoning justice with mercy. Sir John Keane, to my mind, did season justice with mercy. It was pointed out by him that under this Act minimum penalties are imposed, and that it is incumbent on the Justice to inflict such penalties, but, seasoning justice with mercy, he inserted an amendment that the Justice should have power to recommend that the penalties should be so reduced. If that is not a sufficient safeguard, I do not know what a safeguard is. It looks to me that the one thing asked is that patronage should be observed. I feel strongly in this matter. I feel that the opening of this whole question anew is casting upon us an obligation which should not be cast upon us, and is asking us to do a thing which in our inmost mind we know should not be done. I, for my part, again say that so far as I can, I will never tolerate this hasty legislation. Whatever cause may be adduced, if I feel the necessity for amending the law, any suggestion of haste will not force me to do what I think is unnecessary and unjust. We are here for the express purpose of making laws passed by the Dáil more useful. We discussed this Bill thoroughly yesterday, and the Seanad in Committee, not a Committee of the Seanad, decided that this was a necessary amendment, and, therefore, passed it. Now, to-day, we are asked to change our mind, but I feel certain that the Seanad will not adopt such a course.
AN CATHAOIRLEACH at this stage took the Chair.
I voted on the amendment yesterday, and I am of the same mind to-day. I think that most of those who spoke in favour of it are men who have experience on Boards of Conservators. I have had some experience myself, and I found that, with the best intention of carrying out the law for the purpose of preserving the fish, whatever procedure we took was nullified by this power of remission. I can quite understand that where the minimum penalty is inserted in a Bill, there should be some power of remission, some clause where a Judge in examining a case in which the minimum penalty would not be warranted, but in which some penalty would be warranted, had no other course open except to inflict a penalty and make representations that there should be some remission in that particular case. We found, however, that the ultimate penalty inflicted, after certain procedure was carried out, was entirely out of proportion to the offence. I saw that our efforts were futile. With regard to this defiance of the law, I think it will be seen that it is not so much the moderation or severity of the penalty that will deter people from breaking the law, as rather the conviction borne in their mind that they will be punished. If in nine cases out of ten they could evade punishment, we should try and so tighten our machinery that those who commit a crime may look forward to being captured and punished. Then there would be respect for the law, and general defiance would cease. The Minister, at the close of his remarks to-day, said that the object of the amendment was to take away the power of remission. You cannot, however, read that into the amendment. The resolution actually stereotypes the necessity of imposing the penalty, and it saves, too, the power of remission, but it qualifies this in a way that the recommendation shall be made at the same time as the penalty is imposed. That is the crux of the whole matter. A case is brought forward, and the parties on both sides have the privilege of bringing forward every scrap of evidence either for or against. They fail to do it, and the Judge does not see his way to make a recommendation and he inflicts a penalty. What has happened? Even though he does not make a recommendation there was a remission afterwards. That has been the abuse of all those acts. We wish to put it out of the power of litigants by any circuitous procedure to cut across the course of justice.
In discussing this measure after the meeting last night, I took the view that if the Minister subscribed to that, and followed out the procedure outlined in that amendment, and would have it incorporated in a future Bill, seeing that the fishing season has come to such a precarious era, the Seanad under the circumstances, might see their way to withdraw the amendment and let the Bill go through. If a guarantee were given, I, for my part, would alter my decision with regard to the amendment.
As one who voted against the amendment yesterday I sincerely hope that the Minister when he made the strong statement he made this afternoon that under no circumstances would the fines be remitted, would fall in with the amendment of Sir John Keane.
In supporting the motion to have the amendment passed yesterday withdrawn, I do so mainly for the reason that the Bill is urgent. We are all in agreement with the Bill. We are agreed that the Bill is necessary, and we know that if it is delayed it will be useless so far as the season is concerned. Therefore, this urgency and this necessity far outweigh any advantage that might be gained by Sir John Keane's motion. The motion constitutes the District Justice not only a Judge but a Court of Appeal in the matter. There is to be no appeal from him, which, I think, is unheard of under any law.
I am quite certain that under the fishery laws there is an appeal from the District Justice to the Circuit Court.
That method would be a costly one.
No, it is an ordinary appeal. This amendment does not take away the right of the litigant to appeal from the decision of the District Justice. This only deals with the question of the remission of the particular penalty imposed by the District Justice. That penalty might be wiped out on appeal.
There is no appeal in the ordinary sense from the Justice who imposes a penalty by way of memorial. Even if a man is sentenced to death there is a right of petition by memorial to the Governor-General. Further, new evidence may be forthcoming at a later stage which would be debarred from being considered by the Minister for Home Affairs if Sir John Keane's motion were allowed to stand. It has been explained by the Minister that no action would be taken by him without consulting and without the recommendation from the Justice who inflicted the fine. The alteration of the motion that was carried yesterday when it enables the Bill to become law and become effective ought to be sufficient to outweigh any advantage of holding up the Bill.
What would be the delay? As far as I understand, it can be accepted by the Dáil next month and become law within a fortnight's time.
Several Senators have put forward as a plea for rejecting this amendment that the Minister has made a statement that he will not remit the punishment except under very stringent circumstances. Ministers do not remain in office in perpetuity. With all respect to what the present Minister said, it is possible he may be changed. He may go to another Department. The Bill will remain. The next Minister is bound by the law, and not by the statement of any Minister. Therefore, I think that question should be left entirely aside. We should pass the right law, irrespective of any promise any Minister may give.
I would make an appeal to Sir John Keane, and others in favour of the amendment, to view clearly what the Minister puts before us. Most of the salmon fisheries will be opened next February. Between this and then the poachers will be extremely active. The chief object of the Bill has been to preserve salmon fisheries by giving preservation in the close season. The January close season is the most important one. The Bill is mainly, in fact almost entirely, directed towards the close season for the protection of salmon. I think Sir John Keane's objection is that very loose legislation in regard to the open season exists on many of the rivers, and his amendment would hamper these people. But I would appeal to him not to press it, seeing that the chief object of the Bill is to protect salmon in the close season, and the Minister has emphasised the fact that by holding up this Bill for the purpose of including the amendment it could not possibly come in until the middle of next month, or, in other words, ten days before the season opens. For these reasons I would appeal to Sir John Keane, even though I think he is not, perhaps, as well treated in the matter as he ought to be, and I think his protest is a reasonable one. Under the circumstances, he would do more good by allowing the amendment to go for the present, and I am sure that the Minister will give him an undertaking that in any future legislation regarding fisheries the spirit of the amendment will be embodied.
I voted against the amendment yesterday simply because I thought it was unnecessary, but I hardly feel disposed to support the motion before the Seanad to-day. I am not inclined to be a party to having the Seanad stampeded into undoing to-day what it did after very mature consideration yesterday. As Sir John Keane has stated, no new matter whatever has been brought forward. An appeal on the ground of urgency and the promise given by the Minister were made yesterday, and they left Senator Kenny cold. To-day the very same appeal made in the very same way touched a tender chord in his heart, and he is prepared to undo to-day what he did yesterday. I think that that form of legislation will not tend to the stability of the Seanad, and it really leaves one in doubt as to whether what is being done to-day is not likely to be undone before we disperse. Personally I will not be a party to assisting in that sort of legislation, and consequently I cannot support the motion.
On a point of personal explanation, I do not think that Senator O'Farrell is quite fair. He has made a sort of gratuitous accusation that I am prepared to undo to-day that which I saw fit to do yesterday. I only stressed the whole position to-day to show that in effect, if what we did yesterday was undertaken to be carried out by the Minister, under the plea of urgency, this being the close season, I was prepared to reconsider my vote. That is an entirely different matter.
As the junior member of this Seanad, I should not have intervened in this discussion at all, except that I felt that it is a matter of principle. I was present during the entire sitting yesterday, and the question involved in this amendment was fully discussed. In fact, I seldom heard a better discussion. We came to a deliberate conclusion, and if it is possible, as it appears to be, under the rules, to question the decision of the Seanad, sitting in Committee, with practically no notice to the members, except what we got this afternoon, then, I think the position is really very dangerous. I treat this entirely as a matter of principle, and I do not think we should have a discussion on the merits as we had yesterday. We decided that yesterday, and I would very seriously ask the members not to reconsider it, but to vote on it as a question of principle. I say that with very great sympathy for what the Minister said about the urgency of this Bill. It is, no doubt, very important that it should be got through as quickly as possible, but the urgency is perhaps not so great as the Minister thinks, as the greater portion of the close season, and most of the harm that could be done during the present close season, is over. As a matter of fact, one or two of the principal rivers in the North-West of Ireland open on the 1st of January, and the rivers I know best, in the SouthWest, in Kerry, open on the 15th, when practically the whole country will be open, so that the urgency is not of such a nature as to induce this Seanad to go back on what it did yesterday. If this is done I do not know where we will stop.
Personally I am inclined to agree with Senator Brown that there is not much use or desirability in discussing the merits of the amendment which was accepted yesterday. I was against it, because I thought the principle of setting right the law where errors occur was necessary, particularly in matters other than fisheries. But the reason I venture to speak now is because I think we have here a situation which I hope in the future will lead to a more satisfactory method of bringing Bills before us, and for our consideration of them. It is being complained that an amendment of this kind can be brought without notice. That is as our Standing Orders provide, because of the desire of members to bring in amendments generally just before 3 o'clock on the day on which we sit. It was done to convenience them, and it is their desire. In any case, if we take different stages of a Bill on the same day, or one day after, it is almost impossible to provide notice if amendments are to be introduced, and I think we are, to some extent, to blame for the situation, in so far as we arranged to take one stage of a Bill immediately after another, before we have time to see the actual amendments inserted and consider the whole. That, I think, is very largely the reason why we find ourselves in the position in which we are to-day. When a motion of this kind is brought forward one is almost always inclined to vote as one did the day before. Personally, I hope that as a result of this it will be possible to make some difference in our own arrangements, and also that it will be possible, particularly in the matter of Government Bills, to introduce, at an early stage in the session of the Dáil, Bills which are Departmental, which are urgent, which are more or less of a non-controversial character, and which can be put through at an early stage, and would come to us at a reasonably early date. We would then have time to put in any amendment we wanted without running any risk of a situation such as this.
I should like to say a word before the motion is put on this question of the Minister's statement of interfering with the administration of law in the matter of fisheries, especially in view of the close season. The Minister, on behalf of the Government, has suggested that there is a responsibility on the Government to tighten up the law, and that we by our action are undermining that responsibility. The facts show otherwise. If the Government feel their responsibility in this matter, why was not this Bill brought in at the beginning of the close season? The Minister said he wished to bring it in earlier, but we should have no regard for what a Minister feels, because the collective responsibility of the Government is involved in this matter, and if we really felt there was any substance in that argument, that we were by our action giving rein to the poacher, I would feel disposed to withdraw the amendment; but Senator Brown has shown us there was no real validity in that argument, as the close season is nearly over, and the responsibility for any illegal action with regard to fisheries rests not with this Seanad, but with the Government itself.
I move the suspension of the Standing Orders to enable the remaining stages of the Bill to be taken.