On this subject I have a resolution to put before the Seanad. Perhaps I had better read it, and then develop the reasons why I recommend it to the Seanad for adoption. It is as follows:—
"That in view of the statement made by the Minister for Fisheries on the 20th September, 1923, that a larger Bill will be introduced before the next close season which will recodify the whole Fishery Law, and that the Seanad can, on the introduction of this Bill, if it still deems it necessary, re-affirm the provision embodied in their amendment proposed to the Fishery Bill of 1923, and, being of opinion that it is expedient that in the meantime that the provisions of the last-mentioned Bill should be put in force, the Seanad does not insist on the said amendment."
Senators who recollect our debates on this matter will, I have no doubt, be rather astonished at my bringing forward such a proposal now. In doing so I thought it wise to read very carefully the whole of our debates and the debates that took place in the Dáil on this Bill. If the Seanad will bear with me a little I will go through the various notes which I have made, and which, when one looks through them, seem all to point to a conclusion such as is embodied in my resolution. I shall have to refer to my notes because I wish to be very accurate and particular in what I say. I hold that when any difference of opinion arises between the Seanad and the Dáil each House should be very careful of the feelings of the other House, and should give every weight to what has happened there in forming a decision on a subject. That is why I wish to draw the attention of Senators particularly to the short history of what happened.
The Bill came before the Seanad on the Second Stage on the 12th December, 1923, and the Minister stated that its purport was to increase the penalties under the existing enactments. A discussion took place as to the remission of penalties by the Minister for Home Affairs. In reading what happened when the Bill was introduced in the Dáil I noticed that Deputy Johnson at once referred to the subject of the minimum penalties which were the real cause of the necessity for the remission. In the Seanad Senator O'Farrell said much the same thing. One thing, however, strikes one. Senator O'Farrell drew attention to the fact that the penalties that we were making such a fuss about were really nothing when compared to those inflicted or that ought to be inflicted in milk prosecutions, in which the life and death of human beings were concerned; that these penalties ought to be big and, that compared with these, the penalties that were proposed to be inflicted on poachers were not very large. Through the whole of our debates, undoubtedly that question of the size of the penalties and the remission of them was the main point we were all concerned with.
When the Third Stage of the Bill came on, on the 19th December, Senator Sir J. Keane introduced his amendment, the point of which the Minister for Fisheries said he could not see. The Minister said the amendment was absolutely unnecessary, and that it cut across the authority of the Governor-General who was the remitting authority, on the advice of the Executive Council. The Seanad supported and carried the amendment because they considered that unless some precautions were taken in regard to this power of remission the Bill would fail to prevent poaching. There is no doubt as to what was in the mind of Senators on that occasion. We strongly supported the amendment because we knew the history of the past prosecutions in regard to poaching, and that the same thing applied to game prosecutions. In the old days the remission power centred in the Lord-Lieutenant. Apparently, the practice was followed of consulting those who inflicted the penalty, but the final decision, so far as I can make out, was come to practically by the Lord-Lieutenant himself. There were so many remissions, as those of us who are interested in preserving the fisheries of Ireland and resisting poaching, know that the effect was disastrous. The fishery laws, as a result, were gradually becoming useless. Undoubtedly the belief in the Seanad was that the power which had been exercised in this way by the Lord-Lieutenant was going to be exercised in a similar way under these remission powers which were being given to the Minister for Home Affairs.
The Bill passed the Seanad, with Senator Sir J. Keane's amendment inserted, on the 20th December. On the 11th January, 1924, the Attorney-General stated in the Dáil that the amendment was an attempt on the part of the Seanad to effect a constitutional position outside the Bill as regards the remission of sentences and penalties. He stated that as the Bill imposed minimum penalties it was important that there should be some means of relief against a miscarriage of justice. I would like to draw the attention of the Seanad to those two different statements of the Attorney-General. First, if I might use the expression, he fired a huge gun which certainly had not been expected by anybody in the Seanad who had taken part in the debate, as far as I know. I doubt very much if the Attorney-General believed that the Seanad, in bringing forward this amendment, were actually making any attempt of the sort.
It reminds me of what happened when I was a young fellow, when my master set me a little problem in mathematics from Sammon's Conic Sections, which was supposed to be solved in a simple but a rather clever way. I knew some of the great formulae that were laid down for dealing with mighty things in Conic Sections, and I put the poor little problem into one of these formulae and got the correct answer. My master said, when I produced the result, "Jameson, you used an 80-ton gun to kill a sky-lark." I am half inclined to think that the Attorney-General, when he said that we were endeavouring to effect a change in the Constitutional position when the amendment really tried to assist and tell the Minister for Fisheries what the Seanad thought the best thing for him to do, was going a little too far. When you come to the second sentence, that the Bill imposed minimum penalties, and it was necessary to have relief against a miscarriage of justice, he touched on two things. Miscarriage of justice was evidently the one thing he relied on. When it came to be debated in the Seanad again, Senators did everything they could to meet that position. He also said that "agreeing to the Seanad amendment would be an invasion of the Constitution." I suppose by producing these two great guns, he persuaded the Dáil that we were acting unconstitutionally and wrongly, and the Dáil rejected our amendment. At the same meeting of the Dáil the Minister for Fisheries said the Dáil should draft and assign a reason for rejecting the amendment from the Seanad. The Ceann Comhairle advised that it was better for the Minister to go to the Seanad and explain the reasons for the rejection. The Minister said he would give reasons in a statement that he would make at the Seanad.
The next step taken was that the Bill came before the Seanad on the 23rd January. Some Senators expressed the opinion that when the Seanad heard from the Government their statement of the case an easy way out of the difficulty might be found. My friend, Senator Sir Thomas Esmonde, I think, voiced that opinion. It was quite evident then that the Seanad were taking the matter in quite a different way to that in which it had been laid before the Dáil by the Attorney-General. The amendment, in the belief that the miscarriage of justice referred to by the Attorney-General was the point at issue, was altered to meet this view. A discussion arose as to the number of convictions that had taken place during the past year. During the debate it was impossible to obtain information as to the number. The only information available was that out of 87 cases 73 were recommended for reduction by the District Justices and dealt with. Further information was pressed for, but was not forthcoming. Later we were informed that the convictions numbered about 180, and presumably about 100 were allowed to stand. These facts were never before the Seanad. I believe there were difficulties about getting that information for the Seanad, and I do not wish to stress the case against the Minister for not having it, as probably he did not know it himself at the time. The point I wish to make is that the Seanad were trying to come to a conclusion on a matter on which they had not sufficient information before them. I think the Minister, the Government, or whoever is responsible for placing the case before the Seanad, should have had that information ready, and should have given it in order to enable Senators to arrive at a correct judgment. Another case arose when we put a question to the President, who was here that day, as to miscarriage of justice. The President was not able then to say if there were other circumstances than miscarriage of justice which ought to be taken into account, and the matter was adjourned and taken up the following day. On the 24th January the Minister for Fisheries, who had previously stated in the Dáil that it was his intention to inform the Seanad of the reasons for the rejection of the amendment by the Dáil, gave them. What he said was that the modified amendment had been considered by the Government and found unacceptable, for reasons with which he was not competent to deal.
This was practically all the information given the Seanad, who, not considering it sufficient, re-enacted the amendment. I think that is an impartial statement of what occurred. The impression it made on my mind was that if the Government had given us a little more consideration and a little more information, instead of bringing in the great guns about the Constitution and various other matters with which the Cathaoirleach dealt most fully, and into which high regions I will not follow him, we would have kept the debate down to what the Seanad really meant, and that was the plain business of what was the best thing to do to put a stop to the poaching of fish. I think it is only fair to say that all through this matter the Seanad did its best to keep down to ordinary business and not to interfere with the Constitution, attack the Government, or try to do away with the authority of the Government in any way.
I believe that the extracts which I have given show it, and I think that anybody who reads impartially the official reports of the debates of the Seanad will see that they really state the facts of the case. Now, we come to the proceedings in the Dáil of the 27th February. Here the Attorney-General again took up the matter. He had, of course, to fire another big gun and it makes one wonder whether, in firing these great guns he ever puts in a cannon shot at all. I am half inclined to think that he was really dealing in blank cartridge. He said that the amendment was originally drafted to cut down the authority of the Executive, but having fired that shot he gets down to what I think the Seanad wishes to deal with. He said that in regard to the minimum penalties it was important that the power of remission should be retained, more unimpaired than it might be in an Act of another kind. I think we all get down to common ground there. There is a good reason with which we can deal, and which brings the matter rather nearer to the resolution which I have proposed. The Attorney-General further stated that it was proposed to introduce a Bill later in the year, a statement which was endorsing what the Minister already told us, and he further stated that having had the benefit of this Act, the Minister would consider the question of minimum penalties regarding the general law. That is to say, that the Minister, in drafting his codification of the law and his permanent Bill dealing with these fishing matters, is going to take the very question into consideration for which the Seanad has been fighting all through.
Knowing that, as the Attorney-General said, the necessity for the remission is to be insisted upon, and these minimum penalties are introduced in this temporary Bill, I think it is fair to say that the contention of the Government seems to be that with their high minimum penalties, which might inflict injustice in certain cases, they must have the power of remission which, they have asserted, it is their intention to use as sparingly as possible. I read carefully again through the Bill to see what class of cases it was likely that the remission would be used in. In the ordinary case of infliction from £2 penalties to £25, I should think we may rely on the Minister, from what he told us, of his intention to put down this poaching, that they will set their faces against the remission of penalties where the judge has inflicted the minimum of only £2 for real poaching cases, and if he goes above £2 he does it at his own free will. The penalties as regards imprisonment are also entirely at the discretion of the judge, and I should hope that where a judge uses his full discretion in the matter in inflicting either a fine or imprisonment for perfectly clear cases, the Government would not be likely to interfere with them. If the judges thought it was a sufficiently serious and bad case to justify imprisonment, they should not interfere with that either.
There are a good many other classes of cases in the later clauses of the Bill, such as buying unseasonable salmon or , and so forth. There are also penalties for being in possession of fish and various other things, which, one looking at it quite impartially, can see where the Minister for Fisheries and the Minister for Home Affairs behind him, may think an injustice is going to be done—not a miscarriage of justice— and that there ought to be a remission. I came to the conclusion that on the whole, if the case had been put to us like that, and we had known the full particulars of how many cases had been dealt with, and that practically it was only on the cases which had been specially reported to them by the Justice who had inflicted the penalty, they would exercise the power of remission. That, so far as I can see, is clear from the reports I have read. Looking at the other side of it, supposing we decide to carry our amendment to the bitter end, it means of course holding up the Bill until about next September. The Government and the Minister for Fisheries will not have had any chance, of testing by actual practice for six or seven months what the effect of the minimum penalties and remission has been, and how much the power of remission will be called into force. That experience, when drafting the new permanent Bill, will be very valuable to the Minister. He has not got it yet, and I think that the Seanad will be doing wrong if it does not give him that opportunity of acquiring that knowledge.
Holding up the Bill for six months is a power which I should be very sorry to see the Seanad exercise, and which I think should only be exercised in great constitutional questions, and not in a Fishery Bill. I might be chaffing the Attorney-General, but I think the Seanad would be shooting off a gun, whether it be loaded or not, at a time which I think is not the right time to fire it, and we should not use a big weapon for such a small affair. The Bill is a temporary one, and is only to last until the permanent Bill is introduced before the next close season. I, at any rate, am perfectly prepared to take the word of the Government that they will act as they promised to do. There is no question that the opinion of the Seanad is that the Bill with these high minimum penalties and the power of remission—it is absolutely certain that the penalties when inflicted will be carried out—would be the most effective way of drawing the permanent Bill, but it is perfectly within the right of the Seanad when the Bill comes before them to re-affirm that view. The Minister, I am sure, has now had evidence that we want to impress on him that view. Therefore, personally, I can see no gain to be got either constitutionally or in any other way for further persevering with this amendment, and I would ask the Seanad to pass this resolution.