I should like to take this opportunity—and in this matter I feel I can speak for the House as a whole—to congratulate the Minister for Posts and Telegraphs on the marked ability and restraint with which he has piloted this most difficult and complex measure through the Oireachtas.
At the same time, I must express the hope that the manner in which the Bill has been rushed through this House (it may have been unavoidable in the circumstances) will not be regarded as an example to be followed in the future; so that we shall not again be driven to seek devices to overcome the designed rigidity of our Standing Orders. In order to clear up any misapprehension, I would again remind the House that the Seanad is a revising Chamber and that the rules regarding the acceptance of amendments on the Report Stage are necessarily stricter than they are in the Dáil, and that it is for the sole object of avoiding mistakes that my colleague the Leas-Chathaoirleach and myself have striven to insist on their strict interpretation.
As it is, the Bill bears certain traces of haste which are not now remediable; but there are two errors which we can perhaps correct. The first has reference to the new consequential amendment to which our consent is asked by the Dáil. The position about that is this. In Section 2, sub-section (1) of the Bill as amended in Committee of the Dáil, there were seven lettered paragraphs, (a) to (g) inclusive, of which paragraph (b) referred to bodies corporate. The whole of sub-section (2) of Section 2 was governed by this paragraph, since it begins:—
"For the purposes of paragraph (b) of the immediately preceding sub-section but not further or otherwise, the following provisions shall have effect...."
A new paragraph (b) was inserted in the Dáil on Report, referring to partnerships, and the old paragraph (b) became paragraph (c); but in the copy of the Bill as passed by the Dáil the necessary consequential alteration in the opening line of sub-section (2) was not made, i.e., (b) was not changed to (c). This omission was in no way due either to the officials of this House or to the officials of the Department from which the Bill emanates, but it proved to be an unfortunate oversight, since it gave rise to much of the misunderstanding in this House on last Wednesday and Thursday. In effect, it rendered nugatory the whole of sub-section (2). An effort has now been made to remedy this by means of the consequential amendment I have referred to, but even now it is not correct. The whole of sub-section (2) refers to bodies corporate and can have relation only to paragraph (c) of sub-section (1), which also refers to bodies corporate. It has nothing to do with paragraph (b) of that sub-section, which deals with partnerships.
In the circumstances I suggest that the House leave this consequential amendment until we have dealt with the amendments with which the Dáil has disagreed. If we insist on any of our amendments and the Bill has to go back to the Dáil in any case, we can put the matter right by changing (b) to (c). If not, we can let it go, since it is now no more than a blemish in the drafting.
Another and perhaps graver matter concerns sub-section (4) of Section 2. This reads as follows:—
"(4) Where a person is charged with having committed an offence under this section, the onus of proving the matters or any of the matters mentioned in paragraphs (a), (b), (c), (d), (e), (f), (g) and (h) respectively of sub-section (1) of this section shall lie on the person so charged, and until the contrary is proved it shall be presumed that none of those matters is applicable in relation to the Act alleged to constitute such offence."
It will be noticed that paragraphs (a) to (h) inclusive are mentioned; but a new paragraph (f) was inserted by the Seanad in sub-section (1), and a consequential amendment was presumably necessary here. The legal effect, as the Bill stands at present, is that the onus of proof is imposed as regards the new paragraph (f) and removed from the old paragraph (h), which is now paragraph (i).
After taking the best advice available—and I may say that both I and my advisers have the sole object of trying to help the Government to get over the difficulty—I have decided that a consequential amendment to sub-section (4) would go far beyond a correction of a verbal or informal nature such as is contemplated by Standing Order 95. In the circumstances, if the Government feel that an amendment is essential, it can be made here, but the Bill must go back to the Dáil. It may be, however, that the Government do not take that view, in which case we can let the matter go and the legal effect will be as I have indicated.
We shall now take seriatim the amendments with which the Dáil has disagreed, namely, Nos. 1, 4, 15, 16 and 25 to 28 inclusive, and it will be open to any Senator to move “That the Seanad do not insist on the amendment” or “That the Seanad do insist on the amendment.”