FISHERIES BILL. - DAIL'S REJECTION OF SEANAD'S AMENDMENT.

Debate resumed on Fisheries Bill as returned from the Dáil, which disagreed with the following amendment thereto made by the Seanad:—
Section 8.—To insert after this Section a new Section 9 as follows:—
"9. No penalty inflicted under this Act shall be reduced or remitted save on the recommendation of the Judge or Justice who imposes such penalty, and any recommendation for such reduction or remission shall be made at the same time as the penalty is imposed."— (Adjourned from January 23rd.)

AN CATHAOIRLEACH

The first business on the Orders of the Day is the resumption of the consideration of the Message from the Dáil in the matter of the disagreement with the amendment of the Seanad. The matter stood over for the purpose of the Government considering the suggestion which was made of an addition to this amendment, the words of which will be within the recollection of the Seanad. I see the Minister for Fisheries here, and perhaps he would tell us what the views of the Government are.

A Chathaoirligh, is mór a ceatai dhomhsa nach dligheadóir mé— nach bhfuilim léigheanta 'sa dlighe— mar na argointe a chuir Seanadóirí i bhfabhur an leasuighthe seo, is iad argointi dlighe iad agus níl aon bhaint acu le cursai iasgaigh.

I would like to say that I regret that questions of such constitutional importance have been brought into what I consider, at any rate, a very simple Bill. I am not learned in the law. I am not competent to give an opinion as between one eminent lawyer and another on constitutional questions. I introduced this Bill for the simple and straightforward motive of protecting fisheries, and I said when I was introducing this Bill here that it was chiefly devoted to fishing in the spawning season, and that it was very urgent then from my point of view. I hold that there is still urgency about the Bill in the fact that there are some sections which deal with very important matters in connection with poaching of the very worst type, with dynamite and poison, notably Sections 6, 7, and 8. My regret is probably all the greater that this constitutional question has been raised, in that the Seanad were, I think, unanimous as far as the real principles of the Bill were concerned: that is, the protection of fisheries generally, and especially the protection of spawning fish. The modified amendment has been considered by the Government, and found unacceptable, probably again for constitutional reasons with which I do not claim to be competent to deal. In bringing this message from the Dáil, perhaps I may be allowed to make a few remarks.

AN CATHAOIRLEACH

Might I suggest to the Minister that this stood over for discussion on the suggestion from myself made to the President, of a possible way out, by adding certain words to the beginning of this amendment. The matter stood over for the purpose of ascertaining the views of the President and his colleagues upon that. You have told us that they are not prepared to accept that. Therefore, perhaps, you will find it more advantageous if you were to defer your remarks generally on the principle of the Bill and the amendment until you have heard the views of the Seanad.

Probably it would be better.

AN CATHAOIRLEACH

May I remind the Seanad now of the position in which we stand. This was an amendment that passed in the Seanad in Committee, and was reaffirmed on the Report Stage. It was disagreed with in the Dáil and a message to that effect returned to us. The position, therefore, now is that this Seanad has to determine whether it will adhere to this amendment, whether it will alter it in any shape or form, or whether it will acquiesce in its being turned down in the Dáil. The motion that was before the Seanad when the debate was adjourned was one that had been partly introduced by Senator Jameson to amend the amendment by inserting in the front of it:—

Save and except in any case in which the Minister for Fisheries certifies that it has been proved to his satisfaction that a miscarriage of justice has taken place.

That, therefore, is now the motion before the Seanad.

I was in hopes that the Minister would have given us some reasons——

AN CATHAOIRLEACH

Perhaps I am responsible for that. The view I took was that it was hardly fair to ask him to make a general statement before he had heard all the reasons that might be given by Senators. If the Seanad would prefer to hear the Minister's reasons why he and his colleagues have not been able to agree to the suggested alteration of the amendment, I place myself entirely in the hands of the Seanad, subject to the views of the Minister himself.

I rather understood when you suggested to the Minister to reserve his remarks, that it was because it seemed to you as if he had left the subject of the amendment, and was going to deal generally with the Bill.

AN CATHAOIRLEACH

I thought it would be more to his advantage and more convenient if those general observations were made when he had heard the views of Senators. It is entirely a matter of form, and there is no substance in it. If the Seanad would rather hear the views of the Minister, then it is entirely for them, if the Minister so chooses.

The point I was anxious to make was that, as the Minister says, there is no difference amongst us as to the Bill, and as to the intentions of the Ministry in introducing it. The question of the merits of this amendment is another thing. We did our best yesterday to try and meet the one point which, as far as we could judge, the Government had put up as an adequate and real objection to the amendment as it was drawn. The Government may have other reasons for turning down that offer of ours to alter the amendment to meet what we believed to be the only cause of difference between us. If there are other reasons why they consider the amendment injudicious I should think, before we begin discussing it, it would be wise for the Minister to let us hear his view of the case which, I need not tell him, will receive every consideration as far as we are concerned.

I agree with Senator Jameson. What occurred to me yesterday was, that the difference between us was so very small, it was a pity we could not come to some arrangement that would preserve the dignity of both sides. I would certainly like to know why, for my own part, the Minister is unable to meet or accept the advance that we made yesterday. We are most anxious that this Bill should be passed. We think it is a good Bill, and we said so over and over again. We would not like the Bill to be lost. If the Minister can make any suggestion as to how we might decently get out of this impasse, we would be glad to hear it. Before we discuss the Bill any further, I would like to have further enlightenment.

I believe that Senator Jameson's proposition has not been seconded, and I desire to do so. Personally I think that the thing has resolved itself into a Constitutional question between the two Houses. Unless the Minister could throw some light on it, it would be waste of time to discuss it, and the sooner we make up our minds on that the better.

Might I suggest a way out of the difficulty. The Minister told us on a former occasion that he would shortly introduce a larger Bill dealing with the whole question of Fisheries. Would the Minister give an undertaking that when framing that Bill he would consider what has been put forward so strongly in the Seanad in regard to this particular point? I think if we got an assurance from the Minister that he would carefully consider these points with a view to their possible adoption, it might meet the views of the Seanad.

AN CATHAOIRLEACH

May I point out that that would be, I am afraid, a complete abandonment by the Seanad of its position, because to say that we are to wait and see what consideration will be given to this amendment in a new and different Bill altogether, would be, I suggest, a very unsatisfactory solution. Let us, if we can, arrive at some compromise with regard to this particular amendment, for the purpose of this particular Bill, that will not compromise either the rights or the dignities of the Seanad. Let it be a compromise in reference to the situation that has arisen, and not of a situation that may never arise, and of which the Minister is not able to give us any pledge.

I did not understand the Minister to say that he and his colleagues had considered the amended amendment in the interval, and had definitely decided to reject it.

AN CATHAOIRLEACH

He did. He said quite frankly that the Government were not able to accept this amended amendment.

It was considered.

AN CATHAOIRLEACH

Perhaps I may ask the Minister if he will now resume, and I am sorry I interrupted him.

On the actual question now being put to me, I could scarcely give what might be an answer that would be satisfactory to the Senators who raised it. This is a Constitutional matter, and not a fishery matter at all. It has been considered by the Government, and the arguments put forward in the Seanad were carefully considered. The Government decided against these arguments, and decided that the amendment was still unacceptable for the reasons they had already put forward.

AN CATHAOIRLEACH

It cannot with very great respect, have been for the reasons that have already been put forward, as the only reason they put forward was that it prevented them from dealing with cases of miscarriage of justice.

That raised the question.

AN CATHAOIRLEACH

The altered amendment provides for that, and gives the Government power to interfere in any case in which they believe there has been a miscarriage of justice. Up to the present that is the only argument we heard against this amendment.

You defined a miscarriage of justice yesterday, and of course, as far as I am concerned, I would accept that as the last word as a legal definition of miscarriage of justice. But I am not the Government's legal authority in this matter. There may be other opinions as to what a miscarriage of justice is and, therefore, they may not be satisfied.

AN CATHAOIRLEACH

Then, surely, if you put in the words "miscarriage of justice," it will be for the Ministry to interpret them, and for them to say if the case is one of miscarriage of justice or not. We did not cripple them in any way.

When you were giving your definition yesterday of miscarriage of justice, of course, as I said, that was the last word in the legal definition of miscarriage of justice.

AN CATHAOIRLEACH

I do not want to be misunderstood. I did not propose to give an exhaustive definition. I was only enumerating certain cases which would be held to be a miscarriage of justice; such, for example, as if there was a case of mistaken identity, false evidence against a convicted man, or that the Judge had gone wrong in some section of the law. These are well known illustrations. I did not purport to say that they were exhaustive. I was giving them as illustrations pointing out the distinction between them and an appealad miseracordiam which did not touch the merits.

I am afraid the layman's conception, and that is my conception, of a miscarriage of justice goes a great deal further than your definition.

The ordinary person would look on a case like this as a miscarriage of justice. We have a minimum penalty of £50 for certain offences. Some person under some very particular circumstances commits this offence, but in the ordinary course of events, if the judge had a free hand he would not impose a fine of £50. The £50 is, however, inflicted, and the ordinary person would call that a miscarriage of justice. That may be wrong from a legal point of view, but it is the layman's point of view. That is the whole thing behind it. If a miscarriage of justice should be made to meet cases where there is inequitable administration of the law inasmuch as the minimum penalties will not be fair——

AN CATHAOIRLEACH

I think there is some confusion here. I am anxious that we should come to some understanding. The amendment the Seanad passed recognises the rights to remit penalties in cases where there are mitigating circumstances. It only says that the mitigating circumstances are to be reviewed by the justice at the time. It does not take it out of his power to make recommendations for remission nor does it take it out of the power of the Executive.

I agree to that extent that it must be made at the time. Take a person who commits this offence and suppose he is a poor man. I am not pleading for him, and I must not be taken as pleading for a poacher as I am all out against them—if I may use the expression. This man goes into court and thinks for one reason or other that he will get off with something small, something which his purse may be able to meet. He finds himself however up against a very stiff fine, say a minimum penalty. He goes home wiser after the event, and for the first time consults a solicitor. He did not go to the expense of getting a solicitor on the first day as he could not pay for one. Seeing however what is up against him he employs a solicitor. The justice has no power to revise the decision.

AN CATAOIRLEACH

I am afraid there is no such case for this reason. The solicitor who comes on the scene after the case is over would be of very little use, as the petition is not heard in court. It is a paper petition sent to the Executive imploring them for reasons such as I have mentioned to remit portion of the penalty. All the amendment suggests is that the men should be asked to do that in the presence of the justice. If there is a case to be made for mitigation it should be made in court, and if the justice thinks that there are mitigating circumstances, he may be able to report accordingly.

Suppose this happens on the very day this takes place, the case is decided, the judge goes on with another case, and the man goes outside the court and consults his solicitor, who comes back to court and asks leave to raise the case again, the judge has no power under this amendment to consider it.

AN CATHAOIRLEACH

He would have no power once he gave his decision, and it is recorded, whether the amendment is there or not. He has not the power to rehear the case. There would be no finality if he had such power.

Are we to understand from the Minister that if a poor man with a large family is fined £10 for poaching there has been a miscarriage of justice?

I do not mean anything of the kind.