Amendments Nos. 3 and 20 are not in order. An amendment similar to No. 3 was negatived in Committee and the subject matter of amendment No. 20 is of too great substance to come forward for the first time on Report Stage.
Health Bill, 1947—Report and Fifth Stages.
I move amendment No. 1 and I suggest that amendment No. 2 be taken at the same time. The amendments are as follows:—
1. In page 7, Section 5, sub-section (5), line 43, after the word "regulation" to insert the words "or any part thereof."
2. In page 7, Section 5, sub-section (5), line 46, after the word "regulation" to insert the words "or any part thereof affected by such resolution."
Since the Committee Stage, I have done a good deal of research in this matter. I came to the conclusion that the whole principle is very far from being either as generally accepted or as straightforward as the Minister suggests. When we had the discussion in Committee on those powers of annulment and the form which they had come to take, the Minister said that they had, in effect, become standard practice. That was as much as to say that this was the last word. I received a shock when, during the debate, Senator Duffy said—I regard Senator Duffy as an authority on these questions of Parliamentary practice:—
"Do not forget that you must annul the regulations in toto; you cannot annul regulations in part.”
That set me on to further inquiry into the whole question. At the outset, I turned to the recent British Parliamentary Paper dealing with the powers of Ministers. I make no apology for going to British practice in this matter, because, after all, the British Parliament is the mother of Parliamentary Governments and, whether we like it or not, the whole of our practice is based on British methods. I find in the report of this commission on Ministers' powers a very considerable section dealing with delegated legislation. I was rather gratified to find that certain matters which I raised on Committee Stage were commented upon in that report. A number of distinguished civil servants gave evidence before the commission. Incidentally, they have not got the minutes of evidence in the Dáil Library. The House may remember that I asked for some clarification of those ambiguous terms—"regulation,""order,""rule" and so forth. The Minister did his best to differentiate between them, but I did not find him very clear or satisfactory. We have in this White Paper, C.M.D. 4060, published in 1932, the following:—
"The expression ‘regulation,'‘rule' and ‘order,' should not be used indiscriminately in statutes to describe instruments by which lawmaking power conferred on Ministers by Parliament is exercised."
The White Paper goes on to differentiate between "regulation,""rule" and "order." I need not trouble the House at this stage with the differentiation. I made further researches into this question of Parliamentary control over delegated legislation. I found that it has quite distinguished ancestry. The principle was endorsed by a well-known political philosopher who was quoted in this House by the Parliamentary Secretary to the Minister for Local Government. That political philosopher, John Stuart Mill, said: "A numerous assembly is as little fitted to direct the business of legislation as it is that of administration." We may take it as accepted that delegated legislation is going to stay. But I think it is also accepted by everybody who has studied the matter that it is very desirable that delegated legislation should be the subject of Parliamentary vigilance.
Senator Duffy made an effort—I am afraid he received very little encouragement either from the Government or from this House—to get this matter brought under some form of Parliamentary control. He wanted the House to set up a committee to examine these Orders and to put the House on the alert as to whether or not they embodied principles of which Parliament should take notice. I inquired next into the actual method we have adopted in the Irish Parliament on this question of Parliamentary control over delegated legislation. It was a shock to me to learn from Senator Duffy that you must delegate "all or none". That tempted me to inquire what "all or none" really meant. In the case of an Act of 1872—a minor British Act dealing with the regulation of parks— power is given to Parliament to annul "in whole or in part". In the Agriculture Act, of 1920, there is simply power to annul a rule. The result of my deliberations brought me to this point: that it is a question of differentiating between the singular and the plural. Where a number of regulations are made under a statute, I take it that the House has power to annul one regulation, but I do see that it is possible for the Minister to frame the Order in such a way that all the regulations are really, in effect, only one. There might be a book of regulations which would really amount, in effect, to only one regulation. In a further attempt to clarify the matter, I took an Order at random—a statutory Order dealing with the appointment of members of a tribunal in connection with the Electricity Supply Board. The Order begins:—
"These regulations may be cited as the Electricity Supply Board (Appointment of Member of Tribunal) Regulations, 1947...."
and it covers several paragraphs. Is every one of these paragraphs a regulation? The Order says: "These regulations..." I take it every one of these paragraphs is a regulation; otherwise the opening sentence would be: "This regulation..." Proceeding to examine the matter and to apply this whole question of singular and plural to this section, I have come to the conclusion that under the section, as it stands, unless the Minister is getting wary and alters the form of wording to exclude the plural, any regulation the Minister may make can be amended without regard to other regulations. The section reads this way:—
"Every regulation made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next subsequent 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder."
We are to have a large volume of regulations under this Health Act. In fact the substance of the Act will be regulations. There will be very wide powers under the Act, and what will affect the public are the regulations. Under the mother and child service there will be a number of regulations— a book of them, as far as I can see— and presumably every separate paragraph will be a regulation. This House can annul any regulation it sees fit. If the Minister will assure me that that is the position, I find my amendment will not be necessary. However, if, as perhaps I have reason to fear, the word "regulation" is all-embracing and covers a whole set of regulations, then my amendment is necessary. Obviously, it would be ridiculous to have the power of annulment if that power could only be exercised in respect of the whole body of regulations. All any House would have to do would be to annul one regulation which might be considered objectionable dealing with, perhaps, custody of children, or, perhaps, powers of compulsory inoculation or immunisation, and so forth. I suggest that, probably, the House would be concerned with only a single point, yet it is possible that they may be asked to annul every regulation. My object is to made quite sure that we can annul a separate regulation out of a number of regulations. That ought to be made clear and that is the purpose of my amendment.
Obviously Senator Sir John Keane has made some research on this matter since we last met and so have I. We have both profited by our research because we now appear to agree on most matters. We appear to agree that delegated power has come to stay, so we need not discuss the matter any further on any Bills that come before the Seanad. There is no doubt, as far as my research went, that each article is a regulation. Therefore, to put down an amendment such as this would appear to be entirely unnecessary.
The Senator mentioned regulations made in connection with the Electricity Supply Board. The same will happen under the mother and child welfare, as the Senator mentioned. A separate article will deal with immunisation, with inoculation, with disinfestation, and so forth. Each of these articles will in itself be a regulation. Therefore, if the Seanad wishes it can move for the annulment of any particular article as a regulation.
I have had this experience with regard to an Order that if I wanted to amend a particular portion of it without annulling the whole Order at all, the only procedure was to put down a motion to annul the Order.
Yes?
Surely it is conceivable that there can be a regulation, with the greater portion of which fundamentally and essentially you agree, and yet some part of it may be objectionable. The only course is to annul the whole regulation, although only one small phrase of it may be objected to. If that is the situation it puts anyone desirous of altering or amending a regulation in a rather peculiar light. He appears to be opposing something with which he may, essentially, agree when he asks for the annulment of the whole regulation. I do not know whether it is possible to put down an amendment to amend a portion thereof, as Senator Sir John Keane suggests, or whether one must, as with an Order, put down a motion to annul the whole regulation.
I think there is no doubt that in a democratic form of government a certain amount of delegated legislation is essential if we are going to have efficiency. I beg to be a little sceptical as to whether Senator Sir John Keane and the Minister will always agree as to what is delegated legislation and what is not. As the Minister will not debate with Senator Sir John Keane presumably Senator Sir John Keane will not be able to debate it unilaterally. I have no doubt that if the Minister makes and numbers each section as a regulation that what he says is correct within the meaning of the Bill. That has not always been done. I think it would have been better and wiser to provide that any part thereof could be amended.
Excepted.
One of the reasons why I feel rather strongly on the subject is because I believe that delegated legislation is inevitable and that one way in which delegated legislation can operate in a manner which is consistent with the general principles which we, for want of a better word, call democracy is by the public discussion of these regulations. It is not only that we may get, in the collective wisdom of members of the two Houses, points raised which the Minister or his staff may overlook, but it is the effect on the public. If regulations are passed and they appear on the back of our Order Paper and the back of the Order Paper of the Dáil and there is practically no mention of them in the newspapers, it is extremely probable that a large section of the population may know very little about them or, indeed, of the fact that they have been made at all. Public discussion in detail, particularly of matters on which there would be a possible difference of opinion, in my considered judgment is one of the ways in which we make law effective, in which we make it known and in which, even in the case of delegated legislation, the public mind can exercise itself. I am sure the Minister will agree with me when I say that one of the problems in democratic government is to provide that delegated legislation and at the same time to provide that the collective opinion of the people will, in the long run, prevail.
Public discussion and free speech and discussion in Parliament are essential. When we come to a Public Health Bill it is extremely desirable that the form of any proposal should not be to annul only. I would prefer personally, even though every section is numbered separately and even though the regulations could be annulled one by one, that it should be possible to annul only a part. The reason is that I regard this Bill as a Bill in which there will be no real difference of opinion as to the aim, and that it is extremely unlikely that any Party would come along which would have a different aim fundamentally from that of the Government or of the general view at present. It is therefore very important that any motions put down should not appear to the public eye to be an attack on all the regulations or even a complete attack on one regulation. The Minister's speech was satisfactory from my point of view but I would still prefer if he would agree to "any part thereof". It is pretty obvious that he cannot lose anything in this matter, certainly, in a Bill of this kind, by doing so. In fact it means that you could propose an amendment.
I think we ought to leave things as they are. First of all, I should perhaps deal with the point made by Senator Baxter and Senator Douglas, that they might agree with an article.
An Leas-Chathaoirleach
Might I interrupt to remind the House that this is the Report Stage?
We want to hear the Minister.
We will hear the Minister by agreement.
Agreed.
If Senator Baxter or Senator Douglas disagreed with the wording of an amendment they would be able to make that position perfectly clear if they moved to delete the article. That should be quite sufficient to cover that particular argument. I do not like this idea of adding "or any part thereof" because it would cover every Bill in future and drafting is a complicated matter. These Bills are very difficult for the ordinary person to read and we should try to leave them as simple as they are at the moment, which is not very simple.
The Minister is a very astute debate and he has given us a good example of that in his reply to me. I referred to the ambiguity of a number of words—regulation, rule, order. He brings in another—article— equally ambiguous. Is an article a paragraph in an Order? Has it any statutory significance? If it is a paragraph and can be annulled, I should be satisfied. With the approval of the Chair, on the Final Stage I want to deal with the question of "regulation" in general terms as applied to the Bill. For the moment I will confine myself to the amendment, as I must. The word "article" puzzles me. I put myself in the position of a judge trying to interpret this section as applied to a regulation. The term is in the singular. What is "a regulation"? Is it the whole Order or is it an article of the Order? I do not think the Minister can very well tell me. It is very ambiguous and vague. I think it would be impossible to say. That is why I would like to have the matter made clearer by the insertion of the words "or any part thereof." Apparently, the Minister is not prepared to accept it but I am not prepared to withdraw it. A practice has grown up of intensive research into the past actions of Senators and I should like my record in this matter to be clear. I want to put it on record that I do not see my way to withdraw the amendment.
Amendment put.
The Seanad divided:—Tá, 14; Níl, 21.
Tá
- Baxter, Patrick F.
- Butler, John.
- Counihan, John J.
- Crosbie, James.
- Douglas, James G.
- Fearon, William R.
- Foran, Thomas.
- Hayes, Michael.
- Johnston, Joseph.
- Keane, Sir John.
- McGee, James T.
- Madden, David J.
- Sweetman, Gerard.
- Tunney, James.
Níl
- Clarkin, Andrew S.
- Corkery, Daniel.
- Crowley, Tadhg.
- Farnan, Robert P.
- Hawkins, Frederick.
- Hearne, Michael.
- Hogan, Daniel.
- Honan, Thomas V.
- Kehoe, Patrick.
- Kelly, Peter T.
- Kennedy, Margaret L.
- Longford, Earl of.
- Lynch, Peter T.
- McCabe, Dominick.
- O Buachalla, Liam.
- O'Callaghan, William.
- O'Donovan, Seán.
- O Siochfhradha, Pádraig.
- Nic Phiarais, Maighréad M.
- Quirke, William.
- Summerfield, Frederick M.
Tellers:—Tá: Senators Crosbie and Joseph Johnston; Níl: Senators Hearne and Hawkins.
Amendment No. 2 not moved.
Amendment negatived.
An Leas-Chathaoirleach
Amendment No. 3 is out of order.
Amendments Nos. 4, 5 and 6 not moved.
I move amendment No. 7:—
In page 12, Section 21, line 30, to delete the words "their education" and insert instead the words "instruction and advice for them."
I put down this amendment, and a number of other amendments to the same effect, for the purpose of clarifying the word "education" in Part III of the Bill. On the Committee Stage a question was raised with the Minister as to what the word "education" means. Section 21 says that "A health authority shall...make arrangements for safeguarding the health of women in respect of motherhood and for their education in that respect." Perhaps I might be allowed to take all the amendments together because the decision on one will govern the others. Senator Fearon put down an amendment on Committee to delete the word "education." It became clear, in the course of the discussion, that what the Department told the draftsman was that they wanted to give instruction and advice to mothers and to children with regard to their health, and that the draftsman inserted the word "education." It seems to me that the word "education" is entirely too wide. That point was made to the Minister in Committee, and his answer was that it was no harm to have it wide. That, I think, is a very common departmental point of view—that when you are getting legislation you put in words which have the widest possible meaning so as to cover what you want as well as anything else that you may possibly want at some other time.
It seems to me that the word "education" in this context is entirely too wide and opens up a number of prospects which are rather disquieting. A great many people in this country, the vast majority of them, take certain views about motherhood and certain views about education as a personal matter concerning health and education and concerning the individual himself. The word "education" implies giving a person, I think, a particular point of view. It would be possible, under the provisions of this Bill, to provide a type of education which would be contrary to the commonly held Christian viewpoint. It might be made to involve a great deal of education of a very tendentious, questionable and controversial character with regard to motherhood, with regard to the number of children and with regard to a great many other matters. What I am endeavouring to do in this amendment is to insert, instead of the word "education", the words "instruction and advice". The word "instruction" in this connection means telling people certain facts. It seems to me that if the words "instruction and advice" were put in that they would accomplish all that the Minister wants. My colleague, Senator Douglas, on the Committee Stage thought that the word "advice" was all that the Minister required, and that what he purported to do was to give people advice about their health and not education about their health. We should not go too far. We should not give powers that are wide. It seems to me that the Minister's first thought, namely, instruction and advice, is much less objectionable than the word "education" either applied to mothers or children. I think the Minister would not lose anything by accepting the amendment.
Senator Hayes spoke on this matter on the Committee Stage. He mentions now that I said then that it was no harm to have a word allowing us wide powers if you like. I think that, whatever objection may be raised to the point of view that Departments usually look for wide powers, it cannot be argued in this case anyway that wide powers can do any harm. The aim will be to educate the mothers, using the word "educate" rather than "advise," to avail themselves of medical advice which is there for them and of the medical services which will be provided. I do not think it is necessary to argue the matter. I think Senators will agree that a great number of the population of this country do not avail themselves of medical services as much as they might. I think it is only to be expected that if mothers availed themselves more of medical advice and medical services we would have a lower death rate of mothers in maternity cases and infants in the early years of life. It will take a long time to get the mothers to have a proper appreciation, let us say, of hygiene, both domestic and personal, and of the best possible dietary, clothing and other matters during the months before the birth takes place and it will be necessary to instruct mothers on these points.
I do not think we should take into consideration what might happen if the direction of this State were to fall into the hands of people with different ideas. We would all regret that such a thing should happen, but I think everybody will agree that if that should happen in this country, as it has in others, whether we have the words "instruction and advice" or the word "education" in this particular section will not alter the position very much. Therefore we can leave that out of account. So far as my legal advice goes, the legal opinion is in favour of these words and I ask the Senator not to press the amendment.
The Minister realises that by using the word "education" he is putting a fairly considerable burden on the people concerned. It means, I take it, that the medical authority at the school will have to undertake a branch of education as well as the schoolmaster. It also means that whoever is in charge of the ante-natal clinic work will have to undertake the actual education of mothers, quite apart from giving his ordinary written information or actual prescriptions. I am in favour of a general scheme of health education for the community, but I think that, using the word in the sense it implies, it means we are going to provide something that I do not think we can provide at the moment. I think it is a bit grandiose to use this connotation at present and that is why I support Senator Hayes in using the much milder form, namely, "instruction and advice."
I cannot see any force in the amendment. Senator Hayes might say that we have a Department of Education but that it does not educate. The word "education" as used here is far more understandable than the words "instruction and advice." The Senator is trying to put in two words instead of one. When you are instructing, you are giving advice, and when you are advising, you are giving instruction. Why substitute these two ambiguous words for the one word "education," which I think is not ambiguous? You make a person wiser anyway and, no matter how far the education goes, I think the word "education," whether effective or otherwise, is much better in the Bill than the two words "instruction and advice," which practically mean the same thing. It is only just using two words instead of one.
This is obviously a matter of the meaning of words. I was disappointed that Senator O'Donovan, who was able to tell us something from the larger Oxford Dictionary a short time ago, could not tell us the meaning of the word "education" given in the Oxford Dictionary. This is largely a matter of taste and not a matter of the wideness of the powers. The Minister will have as wide powers under this section as he could conceivably have. Telling the people that they ought to avail of medical services and persuading them that they should take advantage of them he regards as education. I do not call that education at all. We will have to differ, and I hope Senator Hayes will not press this amendment because it is not a matter about which we can go very far. I presume we will have half the mothers who have been educated by the Department or by the Minister for Health and we will have the others who have not been educated. When you use it in that form you see that obviously the word "education" means something completely different. I think the word "instruction" is better.
I believe that what is really wanted is a provision by which the health authority will provide the advice, and that the advice mainly will be to take advantage of the health services which can be of great benefit. I really believe that anything which could reasonably be called education on the part of the health authorities is something which would not be wise. I think a lot can be done on the lines that the Minister indicated to see that the health services are taken advantage of.
The education of mothers and children is a matter for the family and not for the local health authority. On the Committee Stage, the Minister was quite clear that the word "education" was wider than he desired or had expected. When he says that he hopes mothers will be induced to avail of the health services which will be open to them and calls that education, naturally I do not agree with him that it is education. Inducing people to adopt a certain course is not the same thing as educating them. The word "education" is a very wide one. It might be used to give people a particular point of view about matters which are very fundamental and matters about which we happen to agree. The Minister's statement, that it does not matter what you put in the Bill if a particular type of Government comes in which wants to do wrong, is contrary to all human experience and, particularly, contrary to nearly all the recent experience in Europe. It is very undesirable to include powers which are too wide and which could be used for an improper purpose.
The Minister says that his legal advice is that the word "education" covers advice. I do not think the legal department in the draftsman's office is particularly competent to decide the meaning of the word "education." Indeed, the legal advice open to the Minister does not appear to be of the best in any circumstances. I think the burden on the local health authorities is greater when you use the word "education," and that it would be much better to use the word "advice," which is the word the Minister really means and which covers what the Minister really intends to do. I, therefore, prefer the words "instruction and advice" to the word "education," and that is why I put down the amendment.
Amendment put and declared negatived.
Amendments Nos. 8 and 9 not moved.
Government amendment:—
10. In page 14, Section 25, line 11, to add at the end of sub-section (4) the words "and shall be entitled, on request, to be present at such inspection."
I do not think it is necessary to elaborate on this. The matter was debated fully on the Committee Stage, and I think the amendment meets Senator Fearon's point.
I am grateful to the Minister for bringing in this amendment and I think the Seanad will be grateful also.
Amendment put and agreed to.
Amendment No. 11 not moved.
I move amendment No. 12:—
In page 14, Section 26, sub-section (4), to delete all words after the word "therein" in line 52, to the end of the sub-section; and in page 15 to delete sub-section (6).
Section 26 deals with the affording of facilities for the medical inspection of children in schools and imposes upon the school manager the obligation of giving reasonable facilities for that medical inspection. If he fails to give the reasonable facilities, he is liable to prosecution and to a fine not exceeding £10. On Committee Stage, I asked the Minister whether there was any precedent for this, and the only precedent he could point to was that in a British Act of 1907. It is a precedent for threatening school managers and I doubt if it was ever put into operation at all. This amendment aims at taking out the threat to school managers.
We have in this country a system of school management which is different from the system in England, or indeed Northern Ireland, but which works admirably. The managers, in much more than 90 per cent. of cases, are parish priests, and if, in a very occasional case, owing to some personal peculiarity, the manager does not make arrangements for a medical inspection, the remedy surely is not to be that the county manager should prosecute the parish priest in the local District Court and have him fined. There are many more tactful, and, I think, more effective, methods of getting the provisions of the law complied with and getting the medical inspection carried out. I notice that Ministers quote precedents between 1922 and 1932 as of very great value, and precedents in British Acts, but, whatever there is in a British Act, we ought to be able to do our business on a more realistic and more intelligent basis.
The provision in the Bill that a school manager may be fined £10 seems to be quite useless for accomplishing its purpose. It is quite offensive to school managers of different religious denominations, who, I think, could be relied on to do their duty. If there were some exceptions, it could be got over very easily without this particular power. Sub-section (4) of Section 26 is rather a blot upon the Bill. I do not think it is of any use to the Minister, I cannot conceive of its being put into operation, and it would be simpler for us to take it out, to leave the law there, and assume that school managers will carry out the law. If, after experience, it is found that that does not work, other steps can be taken. The sub-section seems to me to be a blot on the Bill as it stands and should be taken out.
In putting my name to this amendment, I was influenced, like Senator Hayes, in the first place, by the fact that the only example the Minister was able to quote was this Act of 1907. Neither the Minister nor the great majority of the members is prepared to take a stand on all the British Acts passed in these years as being the basis on which we are to build our legislation. What is the purpose of the insertion of this phrase in the section and in what circumstances could it and would it be likely to have application? I have been trying to think out how this would operate and, so far as my imagination can carry me, I can see two possibilities. One is that you might conceivably be dealing with the manager of a school who was a difficult and rather odd person perhaps. That would be one type, and there are such individuals. They are rare, it is true, but you could conceivably be dealing with that type. Let us suppose you are. Let us suppose he is not prepared to comply with the section and to give the facilities required of him for the purpose of medical inspection. What do you do? The manager is to be hauled before the court by the local authority. I do not know how the local authority would proceed about it. Conceivably, the county manager might not be prepared to take the onus on himself of proceeding against the manager for dereliction of duty and would bring it before his local authority.
He could not.
My view is that he would prefer to do it. Are you then to have a vote of the local body as to whether the manager of a school is to be prosecuted for negligence under this section? You might have a decision on the matter which might not help the county manager to go forward with a prosecution, but, assuming he went on with the prosecution, if you are dealing with that type of man—I have known one or two of them—my view definitely is that you would get nowhere in bringing him to court. In the first place, he would not appear, and, in the second place, if you got a decision, I doubt if you would be able to carry it out. If the court inflicted a fine of £10, or even a lesser sum, quite conceivably, he would not pay the fine, and the local authority would be in the magnificently publicised position of having to imprison the manager of a particular school. That is completely undesirable and it is quite ineffective as a precaution.
But let us look at it from the other angle. The school manager in this country in the position he occupies exercises responsibilities and is charged with these responsibilities in a very peculiar way. He exercises his responsibilities, not by virtue of the fact that he is a citizen of the local community, but, under his Bishop, as the spiritual director of his people. It is in that sense that he is the manager, and it may be that the manager of a school may have a conscientious objection to a particular inspection. He is the spiritual guide of his flock, but, in the last analysis, determines in accordance with his own conscience what his responsibility may be in this matter. Suppose he has a conscientious objection with regard to some type of inspection. What position does he find himself in? Is he entitled to act in accordance with his conscience or not? Senator Hearne has a little sneer at that. I do not know why. Perhaps it is that sometimes his own conscience may trouble him.
Not since Senator Baxter took my conscience into his charge has it troubled me in the slightest.
Perhaps going around without any conscience at all.
An Leas-Chathaoirleach
It would be better to deal with the amendment and not to mind the consciences of other Senators.
When one is dealing with an amendment which sets a problem for Senators, some of whom have not got a conscience, one wonders to what one will appeal. If, for conscientious reasons, such a manager— be he priest or minister of the Church of Ireland, the Presbyterian Church, or of whatever Church—is not prepared to comply with the section, he is to be hauled before the civil court. The civil court is to be the arbiter as to whether that man's conduct was justifiable or not. I do not think that is a problem which ought to be set any court in this country. I cannot see how a court would give a decision on such a problem as that.
I do not know why the Minister should take up the attitude that there is a possibility of this sort of behaviour on the part of managers of schools. Senator Hayes pointed out that the great majority of managers are parish priests. They are the spiritual guides and directors of the majority of the population. They are the people to whom all of us have to go when questions of conscience trouble us. It is a very peculiar attitude for the Oireachtas to take up that, on such a principle, they are not capable of being the judges in relation to their duty and that they cannot be trusted to discharge that responsibility as they ought. That is not my view. This sub-section of Section 26 is a blot on the Bill; it is introducing an entirely new principle; it is unnecessary and, in these circumstances, the Minister should accept the amendment.
The Senators who put down the amendment, if they wanted to be logical, should have deleted the section. I do not see the use of putting in that section, saying that we can serve notice on a school manager to provide for an inspection and asking him to give names and addresses when, if he does not do it according to his conscience, as Senator Baxter points out, we cannot do anything more about it. We can make requests to the parish priest or to anybody without the authority of the Oireachtas. It appears to me that the Senators who put down the amendment did not go very deeply into what its results might be if it were carried. If Senators are voting on the amendment they must regard their vote as a vote of legal restriction or else they must let the section stand. Why should I come here to say that I will ask a parish priest to allow a school inspection? I can do that without coming to the Seanad. Why should I leave in that section if, when a man refuses according to his conscience, as Senator Baxter says, that is all there can be about it?
The health authority.
The health authority is in the same position as the Minister. If they wanted a school inspection they could ask any school manager before this Bill was ever introduced. Obviously, the object of the section is that, having asked the manager and having tried in every possible way to come to an agreement, then, if he refused, he is subject to a penalty. If the Seanad by a majority agrees with Senator Hayes and Senator Baxter, then let them delete the section and do this thing with their eyes open. We are told that the great majority of school managers are parish priests. I believe that is true, but there are others who are managers of schools as well as parish priests, and, if we deal with anybody, then the law must deal with everyone in the same way. We cannot deal with a layman who is the manager of the school and not deal with a clergyman just as severely.
They are not comparable.
Senator Baxter says they are not comparable. He gives a most dismal picture of the conscience of a parish priest. He says that because a parish priest may be an oddity he will not go to court and, if he is fined in his absence, he will refuse to pay the fine. If I were making a plea on behalf of the parish priests, I would not suggest that they have no regard for the law.
I was referring to the one odd man.
Then all of them, with the exception of the odd man, will obey, according to Senator Baxter. The man who will not obey is the type of man who will refuse to recognise the court. That type of person will say: "The court proceedings do not concern me." Senator Baxter is trying to make out that there is a type of parish priest who is above and beyond the law. If the Senators who support the amendment are logical, they should move to cut the section out and let those other people do what they like.
Could you not deal with them through the Bishop?
It is because they have a conscience that they will not do this, according to Senator Baxter. I wonder what would be the position of the layman who has a conscience? Senator Baxter suggests that a layman is in a position different from that of the parish priest; he cannot appeal to his conscience. It is a question of leaving the section as it is or deleting it. I do not want to put in a section telling the county manager that he can approach the parish priests, most of whom will do as he asks, but some of whom are bad citizens, according to Senator Baxter, and will not do what they are asked, but may say: "I will not give my school for this thing," and who, if they are fined, will not pay the fine, if the Seanad thinks it would be preferable to amend or delete it and go on without this provision as it stands in the Bill.
Senator Baxter said I had to go to a British Act to look for a precedent. It is true that I had to go back in this particular code of medical inspection to a British Act before I could find a similar section dealing with this type of case. I said to Senator Baxter— and I am surprised he did not quote it against me, considering the type of speech he made—that even if I had no precedent I would still do it. I do not see why we should not. I do not see why people who are in civil administration——
That is what they are not.
They are in an ecclesias tical administration, according to Senator Baxter, but if they are in civil administration, dealing with education, I do not see why we should not deal with them under the civil law. According to the Senator, they are under ecclesiastical administration and are dealt with in an ecclesiastical way. Senator Baxter is afraid that there might be a vote in the county council, and that is a very awkward thing for any county councillor—to vote for or against any parish priest. But would it not be possible that anything under this Bill might come before the county council and there might be a vote on it for or against a more unworthy citizen, a layman? If we are so terribly concerned about a county council vote for or against the parish priest, we should have some regard for the layman, too.
I cannot see the point of this amendment, unless Senators are prepared to cut out the section and let the county manager do the best he can to arrange for the medical inspection of children. Let them appeal to the school manager, in the first instance, to allow his school to be used and, if they do not succeed, I suppose the inspection will have to be held elsewhere. Senator Baxter says the proper thing to do would be to approach the parish priest's ecclesiastical superior. Probably that will be done. The county manager might feel rather reluctant to bring a parish priest into court if he could avoid it. I think he would try to get the matter fixed up if he could with the ecclesiastical superior. But, if he fails, what will happen? Is our school inspection to break down? I do not think that would be right.
If he does not get it done in that way, he will not get it done in your way.
Of course not. If Senator Baxter's argument is right, it means that we are going to have a privileged class of people in this country who can do what they like and not what the Dáil or Seanad want them to do.
Tá locht agam ar an ndíosbóireacht a bhí againn ar an leasú seo agus tá locht mór agam ar an léasú féin. Is trua liom gur tarraingeadh na sagairt isteach sa diosbóireacht amhail is dá mba leo sin amháin a bhaineann sé. Tá daoine cile seachas na sagairt ina mbainisteóirí ar scoltacha. Taobh amuigh de na scoltacha náisiúnta, tá a lán scoltacha meán-oideachais ann. Cuid mhaith acu seo is scoltacha iad atá faoi stiúradh tuatach.
An mbaineann an t-alt seo leo?
Is dóigh liom go mbaineann seo leo. Féach ar alt a h-aon. Tá sainmhíniú ansin ar "School Manager" mar leanas:—
"The School Manager means in relation to a school or college, the person for the time being managing the school or college."
Tá cineál eile scoltacha ann, na scoltacha Oideachais Gairme Beatha, agus bíodh ná fuil fhios agam go cruinn cé chaoi bhfuil an scéal ina dtaobh siúd, is dóigh liom gurb iad na Coisti Reachtúla, na Coistí Oideachais Gairme Beatha, atá ina mbainisteóirí orthu. Is léir áfach go bhfuil daoine eile i gceist san alt seo seachas na sagairt pharóiste.
Dúras go bhfuil locht agam ar an leasú féin atá molta. Do réir an ailt tá iallach ar an mbainisteóir nithe áirithe a dhéanamh má iarrtar sin air. Is léir go mba díchéillí an rud é réiteach a dhéanamh san alt go gcaithfeadh an bainisteoir nithe áirithe a dhéanamh agus gan pionós éigin a cheapadh dá dtarlaíodh ná comhlíonfadh bainisteoir ar bith a dhualgais.
Is cuimhin liom gur thuit sé amach uair nó dhó gur ceapadh ailt i mBillí agus gan réiteach i dtaobh pionóis a shocrú. Rinneadh casaoid agus agóid ina choinne sin agus tá mé cinnte go mbeadh go leor casaoid agus agóid sa chás seo dá ndéantaí an rud céanna.
Rinneadh iarracht ar chur ina luí ar an Seanad go bhfuil imní mhór ar shagairt na tíre i dtaobh an ailt seo. Níl fhios agam cén t-údarás atá ag na daoine thall labhairt ar an modh seo ach creidim gur mar sin atá. D'fhéadfadh duine corr bheith ann ó am go ham i measc na mbainisteoirí. Má tharlaíonn go mbeidh a leithéid ann aon uair, agus ná beidh sé sásta a dhualgais a chomhlíonadh i dtaobh sláinte poiblí, chomh fada agus tá neart aige air, ní dóigh liom go bhfuil aon aicme is mó bheadh ina choinne ná na sagairt eile, agus ní mheasaim go mbeadh aon aicme sa Stát is mó bheadh i bhfábhar pionós mar ba chuí a ghearradh ar a leithéid. Iarraim dá réir sin ar an Seanadóir Ó hAodha an leasú seo a tharraingt siar.
The Minister's main argument is that if we delete the sub-section which inflicts punishment we must delete the whole section. Surely that is not so. Surely if we enact a section placing an obligation upon teachers and school managers that will have an effect? The Minister will have this legislation behind him even though the legislation does not introduce the particular punishment proposed. While I am not absolutely certain of it, it seems to me that if an obligation were imposed by the section, there would be a legal method of compelling the persons mentioned in the section to fulfil their obligations. If the Minister investigates the matter, he will find that is so. I am afraid I am on rather different ground from that of Senator Baxter on this matter. I do not contemplate a meeting of a county council discussing this question, as I think the County Managers Act has taken the power to deal with this matter out of the hands of the county councils. It is a matter for the county manager and it seems to me even then we should not expressly by legislation here put the county manager, vis-a-vis the manager of a school, either a layman or cleric, in the position that he has to prosecute.
I think Senator O Buachalla suggested that some people pretended that there was a great anxiety all over the country about this matter. I do not think there is great anxiety about it, but I do think that this particular provision is quite unworkable as it stands, and I do not think that legislation passing through this House should contain provisions which are, in fact, unworkable. In most progressive movements up to the present, such as the Red Cross movement and the Savings Certificates movement, the teachers and the school managers were most enthusiastic and helpful and I do not think that the Minister has any ground for fearing that they will not be equally helpful in this instance. I think experience of the working of the School Medical Inspection Act up to the present does not justify any feeling on his part that any number of managers, lay or clerical, of primary schools will not do their duty under this Bill. For that reason my objection to the sub-section is that it seems to be unnecessary and unworkable and that it is endeavouring, by what one might call the direct method, to solve a problem which will be of very rare occurrence indeed and which, when it occurs, will have to be solved by a method other than this particular method. I doubt if it will occur at all.
I have taken the trouble to make some inquiries into this matter and I have been told that when there have been instances in which a medical inspection was not carried out in a particular school by the county medical officer of health on the date arranged, the teacher or the manager afterwards came to him to inquire when it was going to be carried out. I think the Minister will find that that will be the case in future and that the provisions for punishment are unworkable and will lead to unnecessary friction and misunderstanding rather than to smooth working. I think the amendment is a sound one and if this particular sub-section were deleted, the Minister would have the law behind him. He would have still a reservoir of power to get the law put into operation by proceedings in court.
Amendment put.
The Seanad divided: Tá, 9; Níl, 23.
Tá
- Baxter, Patrick F.
- Butler, John.
- Counihan, John J.
- Crosbie, James.
- Hayes, Michael.
- Keane, Sir John.
- McGee, James T.
- Madden, David J.
- Sweetman, Gerard.
Níl
- Clarkin, Andrew S.
- Corkery, Daniel.
- Crowley, Tadhg.
- Farnan, Robert P.
- Hawkins, Frederick.
- Hearne, Michael.
- Hogan, Daniel.
- Honan, Thomas V.
- Kehoe, Patrick.
- Kelly, Peter T.
- Kennedy, Margaret L.
- Longford, Earl of.
- Lynch, Peter T.
- McCabe, Dominick.
- O Buachalla, Liam.
- O'Callaghan, William.
- O'Donovan, Seán.
- O'Reilly, Patrick.
- O Siochfhradha, Pádraig.
- Nic Phiarais, Maighréad M.
- Quirke, William.
- Ryan, Michael J.
- Summerfield, Frederick M.
Tellers:—Tá: Senators Baxter and Sweetman; Níl: Senators Hearne and Hawkins.
Amendment agreed to.
Amendment negatived.
On behalf of Senator Duffy, I move amendment No. 13:—
In page 20, Section 38, sub-section (2), paragraph (h), line 10, to delete the words "under sixteen years of age" and substitute the words "a child."
I accept this amendment.
Government amendment No. 14:—
In page 20, Section 38, line 62, to delete the words "sixteen years of age or over" and substitute the words "an adult person."
This amendment is simply that the words "an adult person" should be put in instead of adult.
"An adult person," oh, yes.
Amendment agreed to.
Amendment No. 15 not moved.
Government amendment No. 16:—
In page 22, Section 44, line 46, to delete the word "which" and to insert the words "whose functional area."
This is a drafting amendment to which I would ask the Senators to agree.
Amendment agreed to.
I move amendment No. 17:—
In page 26, Section 52, at the end of sub-section (2) to add the words: "Provided that no proceedings for an offence under this Part of this Act shall be brought after the expiration of two years after the date of the offence."
This matter was raised in principle by me on the Committee Stage and withdrawn. I have altered the amendment to make the period two years. I think it is a matter of considerable importance that there should not be an unlimited period during which a prosecution can be taken under the circumstances set out in this section. There should be some limit. I know that the Minister is not altogether unsympathetic. I feel rather strongly that to have a position whereby a person can be summoned after five or even ten years, at a time when he could not possibly make a defence for himself, under many of the provisions of this part of the Bill would be a serious mistake and would lead to probable injustice. The principle has been pretty generally accepted that after a certain period of time elapses prosecutions should not take place. That is not because of any sympathy with the person who might be prosecuted, but because, after the lapse of time, he might not be able to get justice. It is from the point of view of having a fair trial and of being given a reasonable opportunity of defending oneself that I think there should not be a prosecution after the lapse of two years.
As Senator Douglas has mentioned he brought this matter up on the Committee Stage. I had certain objections to accepting his amendment then, which I think are not very much altered by changing the period from 18 months to two years. I pointed out on the Committee Stage that the type of case I had in mind was where a family vacated a house, one of the members of that family having died from tuberculosis, without having had it properly disinfected. A new family might go in and it would take a good while before it would be evident that a case of tuberculosis had developed in the new family and, by the time action was taken and so forth, it would be very difficult to know what period would be a fair period to put in the Bill as a limit. The point is whether we should have a limit or not. Senator Douglas says it would be very difficult to establish a defence after a long period. It would be equally difficult to establish prosecution or action as the case may be. I think the court would be all the more unsympathetic towards a person bringing an action if a long period had elapsed. I would not like to see any limit specified. We must remember that this section is dealing with penalties under part of this Bill. For instance, another type of case that might arise is where a person claims, say, maintenance, and where the person was not properly entitled to that maintenance. I think that type of case might be discovered, perhaps, two or three years afterwards and it would indeed be a great pity and injustice if the local authority could not recover what had been paid under false pretences.
Does the Minister claim that that comes under the section? I think it only deals with an offence.
It deals with this part——
Sub-section (2) only deals with an offence.
That, of course, would be an offence. I am talking of a person who claims maintenance, say, for his relatives, while he is suffering from some infectious disease. If he claims that under false pretences it is an offence so it would come under this section. It is the type of case where, I think, everybody's sympathy would be with the local authority in recovering the money. The sum total of my argument is that it would be difficult to set a limit. On the other hand, I think the fears of Senator Douglas will not have any great substance. If evidence is hard to get as a result of lapse of time the court will be more sympathetic to the defendant than to the person who brings the action.
I think that Senator Douglas need not be unduly worried. The difficulty of maintaining a case of, say, tubercular infection, after two years would be very difficult. A chronic disease like that is the only case in which any difficulty would arise. I think it would be very hard for a person to prove that the cause of the infection was that the premises had not been disinfected. I think the point put by the Minister in dealing with the false application for payments is very strong. Such a case might not be discovered for three or four years, or even more, afterwards. I think there is no necessity for Senator Douglas to worry about the periods specified in this section.
I do not propose to suffer any undue worry but I am completely unconvinced by the line taken by the Minister. He instanced a case of recovery of money. I am not a lawyer but I am not convinced that it would be impossible to recover money paid wrongly without taking an action for an offence. The Minister may be right. However, if that be so there should be differentiation between the types of cases. The Minister referred to the case of the sale of a house. Suppose I have a house and that I notify the medical authority that there has been a case of infectious disease in it. Suppose the local authority does not reply within seven days, then I can sell the house. How, after five years, am I going to prove that the medical authority did not reply within seven days? It would be very easy to prove that there was a case of infection, which would not be in dispute. The only offence would be the fact that the house had been sold, which I was quite entitled to do. The only ground of prosecution would be that I had sold it knowing that there had been a case of infectious disease in it and that it should have been disinfected.
Under the Act, if the medical officer does not think any action necessary or does not take any action within seven days, I am quite entitled to let or sell. I raised the point on the Committee Stage and the Minister assured me that the person is perfectly free—I have read the Act since, and I am convinced of that. If a case of tuberculosis appears after two or three years it is very easy indeed to prosecute. A case like that needs no medical evidence because the person must have had tuberculosis for two or three years. It is comparatively easy to get a conviction, but extremely difficult for the person who had the house to show that he had no knowledge or no reason to suspect that his child or a relative living with him was affected.
I raise these points. It is a matter for the Government. I am not going to divide the House on a matter of this kind but the more I think of it the more I feel that the Minister does not need the powers to prosecute after five, ten or 20 years, which he insists on having, in a Bill of this kind in order to get the public health regulations enforced and carried out. This power, which is a sort of threat over a person for a long time, is something that need not be brought into legislation and that should only be introduced when we find that ordinary methods of prosecution do not get results. This section is put in particularly to provide that the Minister can authorise a prosecution after the usual six months. It is put there for a purpose and I am very strongly of opinion that if it is to be there at all there should be some limit and that to make it unlimited is a bad type of legislation.
Amendment put and declared lost.
Business suspended at 6 p.m. and resumed at 7 p.m.
Government amendment No. 18:—
In page 27, Section 55, to delete sub-section (2).—(Inserted on Committee Stage.)
On the Committee Stage an amendment was moved by Senator Douglas, which the Seanad agreed to, which had the effect of removing from the Minister the power to withdraw a licence after it had been granted. I would like the Seanad to reconsider this matter. The point, of course, is that the Seanad thought that this power of withdrawing a licence should be the prerogative of the court rather than of the Minister. I would like to ask the Seanad, first of all, to consider the present situation with regard to legislation that has been passed dealing with the regulation of food. One Act which I quoted on the last occasion was the Milk and Dairies Act. Under the Milk and Dairies Act the local authorities have the greater part of the administration, and they have power to grant licences or to withdraw licences as they see fit. As far as high grade milk is concerned the Minister deals with licences and can withdraw them as he sees fit. In connection with other foods, such as fresh meat, in respect of which the law is administered by the Department of Agriculture, the Minister has power to grant a licence for killing and for the preparation of dead meat and he has the power to revoke a licence for any breach of the regulations. The same applies to the Pigs and Bacon Act and to the Eggs Act. My experience in the Department of Agriculture was that we had very many cases of withdrawal of licences in the case of the Eggs Act where eggs that were not fit for human consumption were sold but I should say that never was a licence removed for one offence. Withdrawal of licence was generally only resorted to after two or three offences had been committed. I do not think any Senator could cite a case of hardship under any of those Acts.
The most recent case that came to my notice was a case of a licence for the sale of milk. In this particular case the man had a licence to sell milk. He had his milk shop facing the street. Behind that he had his kitchen, pantry and larder and, behind that, the yard. He considered that he could do business in grocery and other things. He proposed to sell his groceries, and so on, in the front shop which had been the milk shop and to build a small lean-to to the back of the kitchen for milk. The licence was withdrawn. That case came to my notice three days ago.
In a case of that kind it would be rather ridiculous that we should have to go to the court and say to the court that we had done everything possible to prevent this man from removing his milk shop from the premises in which he had sold milk, that now he was proposing to sell milk from a lean-to at the back of the kitchen, opening into the yard, where it would be almost impossible to expect that he could keep his milk shop clean, and that the licence had been withdrawn.
The practice has been to revoke these licences where a matter of that kind occurs, say, in the case of eggs, where the person has been rather persistent in ignoring the notices served upon him with regard to, say, a large number of eggs in each case being unfit for human consumption.
My experience in administering these Acts was that all the admonitions that you could give to these people was of very little use. When, however, a licence was revoked they were prepared immediately to fall in with any suggestions that might be made to them, provided they got the licence back. In most cases they do get the licence back if they undertake to fall in with the suggestions made. If they do happen to fall away again, then the licence is revoked. I am referring now to Acts that are in operation at the moment. We hope to proceed along the line of trying to improve the standard of food and cleanliness. We may be dealing with hotels and restaurants and we will be dealing with certain shops so that it would be rather dangerous even to have to wait for a court decision in some cases. I will refer to an incident that I believe occurred some time ago, where there was a packet of peas on a shelf and beside it were seed peas. The seed peas had been dressed with a poisonous substance against disease—with insecticide which is sometimes necessary for seed peas. It would be quite easy for the attendant to make a mistake and to hand down the packet of dressed peas for human consumption instead of the edible peas. If a case like that cropped up, and an inspector went in and the man said that he was within his rights and was not going to make any change, we would have to await a court decision. It might be some weeks before the licence could be withdrawn, and in the meantime some damage might be done.
I think one could give very many instances where it would be very dangerous, not difficult but very dangerous, to allow a licensee to continue to dispose of food until he had an opportunity of getting his case heard by the court. Senators are well aware that, sometimes at any rate, when cases do go to court they are thrown out on the ground that there is some technical flaw on the prosecution. In that event the matter might go on for another month before you could deal with it. In the meantime the licensee would be enabled to carry on in a most dangerous fashion in the case of food that is meant for human consumption. We have had a great deal of experience under the Acts dealing with milk and dairies, with fresh meat and eggs, with pigs and bacon. Under all these Acts the Minister had the power to revoke licences, and yet I do not think Senators could cite one case where hardship was inflicted. I do think that Senators could probably show that in some cases at least the Minister was a bit too lenient. I think that any Department or any Minister will always be inclined to do everything possible to get a person to comply with the regulations before taking the extreme step of revoking a licence. I do not think Senators would be able to show that one case of extreme hardship occurred under any of these Acts. If the Minister must wait for a court decision before he can revoke a licence—bearing in mind the continuing danger that may be there with regard to food for human consumption—then I think the Senators would be well advised to reverse the decision they took last week and allow the section to stand as it came before the House, namely, to allow the licensing authority to grant a licence and to revoke a licence as the case may be.
Section 55, which was amended in Committee, gives the Minister very considerable added powers to make regulations for the licensing of certain classes of premises for the manufacture, storing and distribution of food. It gives him power over an immense number of businesses. The regulations may be applied to any hotel or restaurant, to all butchers and to all grocers. The Minister is seeking power to give a licence and to revoke a licence without any prosecution or conviction in court. That means that the Minister is taking power to put all kinds of people, particularly small people, out of business without trial and without their getting an opportunity to make a defence in court. The Minister says that whenever an inspector finds something wrong in a place where food is sold he cannot allow the danger to continue while the matter is awaiting a court decision. I think that, as far as this House is concerned, nobody would object to give the Minister power to suspend a licence. What we do feel is that the final revocation of a licence should take place only after court proceedings. It must be remembered that the revocation of a licence means that some particular individual is deprived of his means of livelihood. On the Minister's showing, under the Dairies Act, and under other Acts, in very few cases indeed have people been so recalcitrant and so stubborn with regard to the regulations that their licences had to be taken away from them. If that has been the experience under the Acts referred to, surely the suspension of a licence and the threat of court proceedings would be sufficient in this case.
What Senator Douglas's amendment, which was accepted in Committee, accomplished was that the licence would only be finally withdrawn—I think suspension would be agreed to —after court proceedings. The Minister desires to maintain the power to revoke licences without any process of trial and with no opportunity being given to the citizen whose business is at stake to defend himself. One thing that seems to me to be wrong about all this procedure is that persons who are in danger of having their licences revoked would resort to some kind of political pressure. The matter could be raised, for example—since it is an administrative Act of the Minister—in the Dáil.
I think that this whole matter should be taken out of that atmosphere and brought to court. This is a power that should not be given to the Minister or to any Minister. There is a very great principle involved in it, namely, that it should not be possible to try a citizen —to try and condemn him and deprive him of his means of livelihood—behind closed doors. There may be people who will prove to be so stupid in regard to the public interest, and to their own interests, as not to carry out the regulations prescribed, but these will be very few. Why the process, for example, that applies to a licensed house could not be adopted and the matter decided in court I really do not know. I think there would be much more public approval if the matter were brought to court and if, on a court decision, the person was put out of business. Even to-day you had a decision in the courts indicating the right of every citizen to seek redress in the courts even against the State itself. In trying to delete this amendment from the Bill the Minister is endeavouring to prevent shopkeepers, hotel owners and others from exercising the rights they have in natural justice by an appeal to the courts. I think it would be much better that that should be done. I do not think the number of cases coming before the courts would be so great.
The Minister proposes to make regulations which, in his view, will be reasonable. I have no doubt they will be reasonable. I do not know whether there have been cases of hardship under the Milk and Dairies Act. I know that during the war the right of the Department not only to have a person punished in the courts but, independent of the courts, to remove his licence did give rise to the allegation that serious hardships were inflicted on individuals. I think the Minister should have power to grant the licence, should have power to make regulations to suspend the licence, but that the final revocation of the licence, which would have the effect of depriving a person of his means of livelihood, should only be done in court after his conduct under the regulations had been exposed to an impartial judge. That seems to me to be a principle which we should not abandon. Therefore, I think we should retain the amendment and retain the principle that a person's living should only be interfered with after he has been tried in court and has an opportunity to put his own case before an impartial tribunal.
I think the amendment passed on the last day was rather innocuous and that the reversal of it to-day is not of great importance as regards the effect of the legislation. As to comparing this with the Milk and Dairies Act, there is an important difference in the wording of this amendment. It says that "no licence shall be withdrawn or no person removed from the register because of a breach of the regulations except after a conviction in a court of law". There is nothing in this amendment dealing with the system of placing the names of the persons and the particulars as to the shops on the register. Under the Milk and Dairies Act, the system is that a person applies for registration to the local authority. I presume that most of this will be implemented through the local authorities. A person applies for registration and the local authority have the right to refuse registration. There are no court proceedings or anything like that. But the person who is refused registration has the right to appeal to the Minister. I presume that is how the case referred to by the Minister came before him. The question of withdrawing a licence does not arise with the local authority, because the procedure will be, if there is an offence committed, to have a prosecution. Where the power really comes in here is in the authority of the Minister and the Department. Highest grade milk or pasteurised milk licences are granted by the Minister. It seems to us that these people get off lighter than the people who have to be prosecuted. The Minister can threaten to withdraw their licence. Take, for instance, a large milk producer with 100 cows producing the highest grade milk. The State grants the licence and the threat of withdrawing the licence is the force used to make that man comply with the regulations. The State does not prosecute him.
When a local authority is dealing with a case under the Milk and Dairies Act, the system is to prosecute the person and have him convicted in court. They do not withdraw the licence on their own authority. There are cases where there have been repeated convictions and negotiations with the central authority have taken place about withdrawing the licence. It seems to me that, where these regulations will be enforced by a local authority, the enforcement will be through the medium of the courts, except where original applications for registration are made and where the local authority has power to grant or refuse registration. If a person is refused registration, he has the right of appeal to the Minister. Their names are entered on the register as purveyors of milk, and the removal of a name from the register only is earried out after a conviction. Where the power of withdrawing the licence is exercised directly, it is exercised by the central authority. To my mind, that is an easier and more lenient way to do it than having the publicity of a conviction in court and subsequently a withdrawal of the licence.
Another point occurs to me in connection with the withdrawal of a licence. It was different during the emergency period of short supplies of goods. When a shopkeeper's licence was withdrawn, he got no goods to sell. Compare that with the withdrawing of the licence of a big milk producer under the Milk and Dairies Act. It is difficult for the State to enforce if the person says he will continue on. Ultimately they will have to prosecute him for carrying on despite the withdrawal of the licence. It seems to me that those who get a licence from the State under the present system are dealt with in a more lenient way than those registered with the local authority whose cases are disposed of as suggested. They are prosecuted and, if convicted three times in five years, their registration is cancelled. That is practically the procedure suggested in the amendment and it does not bring us much further than the present system.
I do not, as a rule, take part in the low conversational hum that acts as a Committee Stage and a Report Stage in connection with legislation, partly because my ears are not sufficiently sensitive to catch all that goes on. I must say, however, that I admire the readiness of wit and the keenness of the auditory nerves of Senators who can and do play a useful part in this particular stage of legislation. There are only one or two points I should like to emphasise in connection with this amendment, which, of course, I oppose. I think there is an important distinction between the initial giving of a licence and the final withdrawal of that licence. After all, a person who wishes to open a shop for the sale of food need not make serious capital or other commitments of a financial character before ascertaining whether, if he does so-and-so with his premises, the Minister's inspectors will be disposed to give him a licence for the sale of food. He need not burn his boats until he knows that he is likely to get a licence. Once he has committed himself to a particular way of making a livelihood it is a serious thing that he should be deprived of that means of livelihood without due process of law and without a decision of a court.
Therefore, the constitutional aspect of this matter, which Senator Hayes has rightly emphasised, is important, that a man should not be deprived of what may be his principal means of livelihood without a judicial decision, but equally, if not more, important, is the moral significance of the whole proceeding. The ultimate object of this legislation is to educate the public and the individual persons who have to do with the sale of food about the importance of safeguarding the public health in everything that is concerned with the handling of food. As the Minister rightly emphasised in another connection, we must keep before our minds the fundamental importance of the educational and moral aspect of this matter as well as others which arise in connection with the Bill.
If a man has several more or less secret visits from an inspector of the Minister and if eventually his licence is withdrawn because he turns out to be recalcitrant, if the public generally or his immediate neighbours discover that his licence has been taken away, they may draw a quite illegitimate conclusion. They may say, being naturally disposed to put a cynical interpretation on what goes on in Government Departments, that he obviously did not know the right people in the Minister's Department or did not subscribe sufficiently to Party funds. People are so constituted that they are disposed to make uncharitable deductions from the doings of Government Departments.
On the other hand, if the procedure is open and above board, if it goes to a court of law and if as a result of a decision in a court of law, a person is deprived of his licence, the moral effect of that decision will be tremendous. People have, and I think it is a matter for considerable satisfaction that they have, the utmost respect for the decisions of all our law courts and such a decision, revoking a licence, would have far more moral effect in improving the whole tone of public opinion than any amount of private, secret withdrawals by the Minister or threats by the Minister's inspectors. I, therefore, strongly urge that this whole matter should be reviewed in the light of the representations made in this House and that the Minister should think again before asking us to accept this amendment
Mr. Hawkins
Much has been said about the power of depriving a merchant of his right to carry on his business, despite the fact that he may have violated some of the regulations. My approach to the matter is this: when a person makes an application for a licence, he, as it were, enters into a contract with the party responsible for issuing the licence to carry on his business in accordance with the regulations laid down by that authority, and if he breaks his contract with that authority, if he fails to carry on his business in accordance with the regulations, the only people who should have the right to withdraw the licence is the authority which issued the licence, in the first instance.
Who decides whether or not he has broken the contract?
Mr. Hawkins
The authority which issued the licence. We must remember that other organisations, apart from the Government, lay down regulations of this kind. Anybody interested in the motor trade knows that if a man is being supplied with petrol for a petrol pump by one of the petrol distributors, he has to comply with certain regulations. If he fails to do so, he is not taken to court, but his licence to sell petrol is withdrawn by that organisation and there is no question of an injustice because it was not done through the courts.
I must rise in view of the last remark of Senator Hawkins. The motor trade association does not issue licences or deprive people of them. What they do is to withdraw supplies, or endeavour to get them withdrawn, which amounts to the same thing. While, normally, I am no more in love with Government interference in business than Senator Douglas, on this occasion I have no hesitation in saying that I cannot support this amendment because, in my experience, the cancellation or revocation of licences by an authority, whether the Minister or a local authority, has, in fact, been a suspension rather than a cancellation. With the knowledge of human nature we all have, I feel that the punitive effect of cancellation is far greater than would be the case if the person who had committed some wrong knew beforehand that the worst that could happen to him would be that his licence would be suspended.
When it is cancelled there is a doubt about its being restored and in a matter of such vital importance to the community, the proper handling of food, in respect of which all sorts of tricks and evasions are possible and in respect of which I am convinced, from my own knowledge of the world as an ordinary citizen, it would be possible for a person who had it in mind to try to outwit the Government between the time of detection and the time of the proceedings in court, I feel that the Minister and his Department are entitled to have this power to cancel a licence. It is not irrevocable. I have yet to know of a case in which after a due period of time the person convicted has not got the licence back. I think the Minister is entitled to get this amendment and I would not speak as I do if the matter related to anything but food, but I have strong feelings about this matter. Any of us who has seen the way in which food has been handled up to the present would rather give the Government the benefit of the doubt, so that, if the Government had to err, they would err on the side of stringency in the interests of the community.
I do not propose to follow Senator Hawkins and Senator Summerfield into the ramifications of petrol, because the Minister has no power over petrol, but I feel that we are setting out on this argument on an entirely false premise, an entirely false basis. Senator Hawkins and Senator Summerfield speak altogether of the time when a man has committed a breach of the regulations. Of course, when he has committed a breach of the regulations, his licence should be withdrawn. Nobody is arguing anything to the contrary. The real point at issue is whether there is a breach of the regulations or not. Senator Hearne has very substantial experience of business contracts. Will he undertake a business contract with me of a substantial nature on the assumption that I, and I alone, am the person to determine whether that contract is carried out fully and completely and according to the last letter? Of course, he will not. No businessman could possibly enter into any contract unless he knew that there was, as was mentioned in the court decision to-day, a power and a function in existence to determine controversies between one citizen and another and between a citizen and the State.
What this, in effect, means is that you are giving solely to a Government Department the right to determine whether the regulation has been broken or has not. If the regulation has been broken and if it is determined that the regulation has been broken, I am as much in favour as Senator Hawkins or any other Senator on the other side of having a due, adequate and careful provision to ensure that, particularly in a matter such as food, there cannot be a recurrence of the offence in a way which might affect the health of the community. There are other Acts on the Statute Book which affect licences, which affect a person's whole way of living, his whole means of livelihood by which he is enabled to keep himself and his family. There are, for example, the Intoxicating Liquor Acts. I find it difficult even to assume under this Bill what regulation will produce a more unpleasant offence, an offence more dangerous to the community, than the offence of selling intoxicating liquor to children. That is one of the things that really offends against all of us, but yet in that case, under the Intoxicating Liquor Act, before the licence can be withdrawn, there must be a conviction; the person who is put there to hold the scales of justice must determine that there was that breach. That must be the whole basis of the State regulation in any country that is being governed at all democratically.
Senators on the other side, and the Minister, are setting out entirely on a wrong assumption and that being so, it is perfectly natural that they must arrive at the conclusion to which they have arrived. They start all arguments with the premise that a man has broken the regulation. What I want made certain is that that man has really broken the regulation and not infringed merely in the eyes of a particular inspector. We must look at this matter in a commonsense way. Do all of us not know that though there may be 99 first-class inspectors dealing with a particular matter like this, there will be the odd one who will be a crank. I submit we are giving the crank power to be the judge and jury and to decide that a person can be put out of business, cannot carry on his business.
This is not at all the same as the Milk and Dairies Act. That Act affects only a minute proportion of a person's livelihood. His whole business can be switched in another way.
Still, it would be a big hardship.
It would be, but the hardship would be proportionate; it would not be such a hardship that a man and his wife and family might find themselves in the poor house. This may mean that; this may mean that the small grocer in the country will be unable to carry on. I will not accept the proposition that any such person can be put on the side of the road so far as his livelihood is concerned without ensuring that when he is he will get an opportunity of having his case made in such a manner that he will be present and can make his own representations instead of the whole thing being done behind sealed doors, as is suggested here.
On the last occasion the Minister made it very clear that it was not the wording of the amendment or the sub-section to which Senator Douglas referred that he objected to; he said that he objected to the principle and he was determined that the Minister would be the person who would determine whether a man's licence would or would not be revoked. We all know that in that connection the Minister means his Department. If the Minister said that he did not like the terms of the sub-section, and was prepared to consider it in some different form of wording, he would have found us reasonable and quite willing to meet him. But it was on the principle that he took his stand the last day and it is on the same principle he is taking his stand to-day.
It would be perfectly right that the Minister would have power to revoke a licence if there were power of appeal from the Minister to a court. I would not object to that, because then there would be a chance of a man establishing that he was right and the inspector was wrong. The Minister's inspector goes to a grocer's shop in the country and decides that it is too dirty. Is that not going to be a matter of some substantial difference of opinion? You are giving the right of decision in that matter to the inspector under this section, if the amendment is defeated. You will not give a man an opportunity of making his case; you will not give him an opportunity of saying that the facts are not as represented.
None of us is the same any two days of the week. Some of us one morning may be perhaps extremely bad-tempered, or feel a little bit liverish. Suppose the inspector comes in at that moment, a shopkeeper might bite the nose off him. The inspector may not be treated perhaps very politely. He goes away and he has it in for that man afterwards. There may have been nothing wrong in the man's shop on that occasion, but the inspector, as a result of the way he is met, will try to catch that man out and there would be no opportunity of a personal spite that might arise in such circumstances being set aside.
I suggest that under this section there is a possibility, and a probability in certain cases, of there being very considerable hardship, very considerable oppression. There is also the possibility, to which I do not propose to refer at any great length, that it will add to the growth of an unpleasant public opinion that has arisen and spread to an enormous extent, that you can get nothing done without pull in a Government Department. That will ultimately shake public confidence in the State and the more discretion left with Government Departments the more that opinion will grow. The more discretion left with the judge as an arbiter between the citizen and the State, the less chance it has of growing.
I appreciate that the district justice occasionally may not be in the best of form, but there is an appeal from him. It is appreciated and understood that there may be mistakes made, but there is no appeal here, no opportunity of a mistake being overridden. All that happens is that a decision is taken behind closed doors on the report of one inspector, which the man affected has no opportunity of seeing or contradicting; he has no opportunity of justifying his conduct. On that decision his whole livelihood may be taken away. That does not appear to me to be the type of legislation which will ensure that there will be that co-operation in the matter of public health which we all hoped for when we heard of this scheme.
There is one aspect of this matter which occurs to me and it may have some bearing on the position. Registration of a person or a premises covers a great many things. Supposing you register a manufacturer. How many of these food manufacturers make more than one thing? Supposing one product of a manufacturer is found unsatisfactory, does he lose the licence on that? Much more important is the position of the small shopkeeper, the general grocer. His shelves contain everything from A to Z. If the Health Act works properly, it will mean that inspectors will have to go into his shop and examine mysterious things in tins, peculiar things in bottles, strange things masquerading as cheeses, and various other things. Something will happen. It will be found that the tinned lobster, let us say, contains too much lead, or the vinegar contains a little arsenic, or something of that sort. Those findings will depend on the evidence of expert chemists, whose information will be made available to the Minister. The unfortunate vendor will thereby be faced by expert evidence which he will have no chance of rebutting.
For that reason, I certainly think that he should have some chance of getting the substance analysed and checked up on his own behalf. I would certainly support the Senator's proposal that there should be some right of appeal to the court because if this Bill is going to be expanded, to apply to everything we eat, it is bound to lead to controversial points of analysis. It is bound to give rise to cases where there might be legitimate grievances. I feel that the vendor should have the right of appeal because otherwise his livelihood will be imperilled. He may lose his business and his livelihood because of one sardine that has gone bad in his stock. If his licence is revoked because of one small item such as that, it would be very harsh. I see no provision in the Bill in regard to the restoration of the licence but I presume that will take place if he promises to be a good boy in future.
Unfortunately I was unable to be present during the discussion on the original amendment. If I had been here I would have opposed it because the amendment in my submission is premature. The amendment as well as the greater part of the discussion that has taken place in this House, both as I read it and as I have heard it this evening, is purely hypothetical. It would appear that this House was considering regulations that had been made by the Minister. In fact, this House has been shooting in the dark since the amendment was proposed in the first instance. The section provides merely that any regulation under this part of the Act may provide for the licensing or registration of persons engaged in the manufacture, preparation, importation, storage, distribution or sale of food for human consumption, etc. Now until these regulations are made this House cannot know what they will contain but is has been assumed here for the purpose of this amendment and the discussion, that these regulations contain provisions not only for the granting of licences but for the revocation of licences. The amendment which was proposed here assumes that these regulations will contain provisions for the withdrawal of licences. We cannot at this stage discuss possible provisions which may be contained in these regulations.
But the Minister told us the last day that that was going into them.
This amendment was drafted before the Minister said anything. At all events, the function of this House, in my submission, is that set down for it in Section 5, sub-section (5) of the Bill, which says:
"Every regulation made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and if a resolution annulling the regulation is passed by either such House within the next subsequent twenty-one days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder."
We cannot cry before we are hit. We cannot anticipate what regulation the Minister may make. If the Minister had actually made a regulation providing for the revocation of licences, then that regulation could be discussed by this House on a motion to annul it pursuant to sub-section (5) of Section 5 of the Bill but there has been nothing up to this but speculation. We cannot anticipate what these regulations may contain nor is it our function to say what these regulations should be. It is the function of the Minister, in the first instance, to make these regulations. It is the function of this House to decide whether these regulations should stand or fall—that is, if this House should decide that a regulation should be annulled, then the regulation will go by the board.
Unfortunately this amendment has provided food, if I may use that word, for a lot of speculation which is totally irrelevant and immaterial to the matter in hand. Therefore I say that this amendment was misconceived because it assumes something that may never be. That is, it assumes that regulations will be made providing for the withdrawal of licences and the removal of the names of persons from the register because of a breach of regulations, and the regulations have not yet been made. We have no indication or guarantee that a person's licence will be withdrawn. But if the regulation should contain such provision, then the whole question could be discussed in this House on a motion to annul the regulation. At the moment I say that we are doing nothing more than beating the air, and while I am always in favour of what I may call the due process of law—that is, that no man shall be deprived of his property or liberty without due process of law—I recognise that in this modern era certain immediate steps must be taken which may cause suffering or loss to individuals, for the purpose of providing security for the community.
We know that under the Constitution it is provided that the rights of the private individual to property may be delimited or cut down for the purposes of the common good. I think myself that the whole of this legislation regarding the purity of food and its protection from contamination is based upon the common good. In fact the section which immediately precedes that now under discussion, namely Section 54, provides for the making of regulations by the Minister after consultation with the Minister for Industry and Commerce and the Minister for Agriculture for
(a) the prevention of danger to the public health arising from the manufacture, preparation, importation, storage, distribution or exposure for sale of food intended for sale for human consumption,
(b) the prevention of contamination of food intended for sale for human consumption,
(c) the prohibition and prevention of the sale or offering or keeping for sale of
(i) articles of food intended for human consumption,
(ii) living animals intended for such food,
(iii) materials or articles used or intended for use in the preparation or manufacture of such food,
which are diseased, contaminated or otherwise unfit for human consumption.
In other words, the whole purpose of this Bill is to provide for the better health of the community as a whole. While it is possible that certain individuals, in the course of that process, may suffer losses, that a man may even suffer the loss of his livelihood, is it not better that one individual should suffer the loss of his livelihood than that a whole community should be ravaged by a disease like typhoid fever or some other disease which would run like wildfire through the community?
These are all matters, however, which could be discussed when considering the regulations made by the Minister but I think that the forestalling of those regulations by this House would be improper and would not be the function of the House. The function of this House has been clearly set out— to annul the regulations, if it thinks fit, when they are made by the Minister. This House has no power to make regulations. Yet, the discussion here this evening was based on the proper type of regulations to be made. The regulations are the responsibility of the Minister. Under the Bill, this House can say only "Yes" or "No". For those reasons, I think that this amendment was misconceived and should not go from this House in the Bill. If the Minister should make regulations which might be unduly oppressive on persons engaged in the manufacture or sale of food, this House will have an ample opportunity, on a motion to annul the regulations, of discussing the hardships which might be inflicted on such persons. For these reasons, I think that it would be better for this House that this Bill should not be—if I may use a word which occurs in the Bill—contaminated by the amendment which has been passed.
The speech by the last Senator amazes me more than anything I have ever listened to from him in this House. He seems to think that, in respect of a Bill of this importance, the only function of this House is to postpone consideration of important matters until some later date when the regulations will be made. That is a most amazing statement. The first function of this House as a Second Chamber is to examine all the sections of this Bill and see whether it agrees with them or not. It must consider what power should be given for the making of regulations and what restrictions should be imposed in connection with their making. If Senator Ryan's argument were correct, this would have been a one-clause Bill, simply giving the Minister power to make regulations for the health of the community. Instead of that, the Minister brought in a Bill of many sections which provide for the making of various types of regulations.
To suggest that it is improper to provide that these regulations shall have a provision by which a licence may not be withdrawn unless there has been an offence of which the person concerned has been convicted by a court, is to me absurd. Senator Ryan said that to anticipate the possible effect of legislation was to be crying before you were hit. All criticism of proposed legislation which comes before us here is "crying before you were hit." We could not debate a Bill on any other basis. We do not know exactly what will happen in connection with any Bill. All we can do is read the Bill, criticise it, state what we think will happen under it and suggest amendments. There has to be anticipation. How it can be suggested that it is improper to insert a provision which will affect the kind of regulations to be made by the Minister, because it is not the function of the House, is beyond me. We are also accused by Senator Ryan of shooting in the dark. There was no shooting in the dark. The amendment by me, which was carried in Committee, was put down, following my reading of the debate in the Dáil, in order to find out what exactly the view of the Minister was. The Minister said explicitly and clearly that, in his opinion, the Minster ought to have, and must have, power to withdraw a licence without a court conviction. The issue was, therefore, clear. I pressed the amendment and it was carried by the House on that issue—not because I stood over the exact wording.
We do not know what will be in the regulations but we do know that the Minister considers that he should have, and must have, in those regulations, power to withdraw a licence even where there has been no conviction by a court. Senator Hawkins expressed, in a manner which I thought was very clear, exactly the opposite view to that which I hold. He says that, when a man applies to the State for a licence so as to carry on his business, he is entering into a contract with the State and it is for the State to decide whether or not he has broken it. That is the fundamental issue which I am fighting. Senator Summerfield would be inclined to agree with me if any other business than food were involved.
We know from the Minister that he proposes, as soon as possible, to license butchers and, probably, hotels. He has power to license many other trades. I shall confine myself to the two businesses he has mentioned in the debate at which Senator Ryan was not present. Take the case of the butchers. Butchers may run certain sidelines but, if you take away the licence from a butcher, he goes out of business. I know very little about the victualling trade. I have no financial or other interest in it. Occasionally, I buy some meat but not a great deal. Here is the position: In the interest of what the Minister regards and what, probably, every member of the House would regard as the health of the community, certain regulations have to be made governing the keeping of meat and the premises in which it is kept. To control that, the Minister proposes to introduce a system of licences. Doubtless, he will do as has always been done—give licences to all persons at present in the trade unless there is reason to believe that their premises are unsuitable, in which case they will have an opportunity of acquiring suitable premises and getting their licences. I make no accusation that there is the slightest intention or danger of unfairness so far as the giving of the licences is concerned.
Take Senator Hawkins's argument. The butcher has applied for a licence. He has virtually entered into a contract with the State that he will conform with certain regulations. Somebody—perhaps an inspector—says that he has broken the regulations. If he admits that he has done so, I have no objection to the State's saying: "We shall either take you to the courts and have you convicted or, if you surrender your licence, we shall not proceed further." If the butcher says: "I did not break the regulations," who is to decide? Senator Hawkins is clear that the State is to decide. I say that is wrong—that the State should decide as between the State and an individual. I am not concerned as to what happens the licence, if the person concerned says: "I am guilty." If he says. "I am not guilty," I say that the only way you can get good government is to give him the right to go to the court, employ lawyers to defend him and have his case heard. During the war, we know that licences were withdrawn. I have no charge to make personally and I am making no charge that any licences were unfairly withdrawn. I say, however, that in parts of the country where I have been there is a common belief, and commercial travellers and others have confirmed it, that licences were unfairly withdrawn in some cases because the full facts were not known to the Minister and, in other cases, that the punishment was too harsh. I do not say that that is true. I do say, however, that it did not make for confidence in the Government and that the people had no redress in the courts.
There is also the question of conviction and the right of the Minister to punish twice over by withdrawing the licence. I hold that where the withdrawal of the licence is because of an offence, the licensee should, at some point, have the right to have his case heard in court. I would be perfectly satisfied if the Minister had power to suspend a licence for as long as he might think fit provided that during the period of suspension the person could go to the court, prove his innocence, and have the suspension removed. I would be equally satisfied if there was a provision that a person who was aggrieved because of the suspension or withdrawal of his licence could go to a court of appeal, could prove that the charge was wrong, and that the Minister would then have to withdraw it. To my mind it is the fundamental question of the individual versus the State which is involved. Now that we are having more and more delegated legislation, now that it is becoming more and more evident—and I accept it in the interests of good Government—that Ministers and Minister's Departments will have to make regulations because of the impossibility of carrying through Parliament all the details of every type of legislation, it is more than ever important that when we delegate to the Minister power to make regulations we should not give him the power to have a person convicted and punished—because taking his livelihood away is punishing him— unless he has the right to go to a court of appeal which will hold a balance between the State and the individual. I agree to some extent with Senator Ryan. I agree that there could be no breach of this principle. I agree that there could be no breach of the provisions of the Constitution until we see the regulations.
I entirely disagree with him, however, that we have no function here to raise that possibility, particularly in view of the line taken by the Minister, which was obviously taken in good faith, in regard to what he thinks should be necessary. I have not had time to read or digest the rather important decision on another matter which was announced elsewhere to-day and which is reported in to-night's newspapers. I am particularly interested in the reference to Article 40 of the Constitution in which it has been clearly held that the courts have a duty to enforce. Article 40 (3) (i) says:
"The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen."
Article 40 (3) (ii) says:
"The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen."
It is not only the duty of the State to maintain the property rights—it is the duty of the State to maintain the good name of the individual, and by its laws to protect him from unjust attack. I think that is right. I respectfully suggest to this House that whatever is done with this new sub-section which has been inserted we will not get good government here unless we protect the rights of the individual to the extent that, when charged by a Department or a Minister with a breach of the State laws he can go to the court as between the Minister and himself and say: "The court will decide whether I am guilty or not." I am not much concerned with the way the system has operated in the past. I am not much concerned with any particular Acts. I am concerned with the fact that, as the trend has been—particularly during the war—for more and more delegated legislation, for more and more administration in Departments, as from now on we in this State will say: "Yes, we have to take a lot of power over the individual. We have got, in the interests of health and other matters, to regulate his business. We cannot avoid it, to a certain extent. Between the individual and the State, however, there are fair and impartial courts. We are going to maintain them and every citizen in Eire will be able to say that: ‘If I am charged, it will not be the Minister or his officials but a court of law which will decide whether I am guilty or not.'"
When if, in years to come, Senator Ryan has to do research into the records of this House he will probably say that we discharged a very important function very well in what we did last week in our attempts to keep the amendment we secured on the Statute Book. The whole principle of delegated legislation and its danger is involved in this section. Before Senator Ryan spoke my mind was working along the same lines as his. We are discussing what may happen under a regulation not yet made. However, I came to a totally different conclusion from the one he came to. I said to myself: "We are giving the Minister power to make laws which will, in effect, enable him to judge on the right of a man to earn his own living—in fact, to make himself into a quasi-judicial person with power to decide matters of justice without reference to the courts and without giving the party concerned the right to be represented by counsel, to cross-examine him, and all the rest of it." Senator Ryan seems to see no objection to handing over to the Minister the power to make laws which is, in effect, what power to make regulations means. He says: "Oh, look at the wonderful safeguard you have got"— the power to annul those laws within 21 days. The Senator surely knows that, probably, there is not a case on record in the whole history of the State where such annulment has been used. Yet he calls that an adequate protection against practically allowing the Minister to make himself a judge.
I say that the Act itself confers these powers expressly on the Minister. If Senator Sir John Keane will read Section 55 he will see that—
Regulations under this Part of this Act may provide for the licensing or registration of persons engaged in the manufacture, preparation, importation, storage, distribution or sale of food for human consumption or of premises in which food is manufactured, prepared, stored, distributed or exposed for sale for human consumption and for the description of premises so licensed or registered and the prohibition of the manufacture, preparation, importation, storage, exposure for sale or sale of food otherwise than by licensed or registered persons or on licensed or registered premises (as the case may be).
These powers are given by the Oireachtas to the Minister. The only power that the Oireachtas reserves is the power to annul these regulations. I think it is idle for Senator Sir John Keane to say that I am in favour of the Minister's making of regulations or making of laws. That power is provided by the Bill and when this Bill passes the Minister will have power to make these regulations which are, of course, classified as delegated legislation.
And when I come in to protect the citizen with an over-riding safeguard the Senator denies it is necessary—an over-riding safeguard that no person should be deprived of his livelihood without a due process of law. I sometimes feel in this House that the Senator speaks more from a brief than from a wide survey of all the legal aspects of the case. What happens under the law? There is power under the Statute law, where a violation of the Constitution is feared, to suspend the enactment of the measure pending a reference by the President to the Council of State and judgment by the Supreme Court.
The Senator realises that we are debarred from such protection in this case although some of us believe, in fact some of us are certain, after what the Minister has said, that he intends to use the power of revocation, and possibly some of us may consider that that would be a breach of the Constitution. I cannot help feeling that if the power of revocation without public trial were in the Bill there might be a good case for recourse to the Supreme Court. We cannot do it now. We cannot do it under a regulation. There is that wide power of delegated legislation given to the Minister when he tells us, inadvertently, that he intends to use that power in a sense that we think would be thoroughly unjust. A lawyer in this House weighs in the balance the possibility of perhaps greater purity of food against what he calls a loss to an individual. "Loss" is the wrong word. "Injustice" is the word he should have used. Weigh that against injustice to an individual. This is a very important matter where freedom is concerned, and certainly the amendment inserted on Committee Stage should stand.
Ba mhaith liom no thuairm ar an gceist seo do lua agus deanfad sin chomh gairid agus is féidir liom. Ba cheart dúinn bheith faoi chomaoin, sa chead áit, ag an Seanadóir Summerfield mar, sa bheagán cainte do thug sé uaidh do dhírigh sé sinn ar an bpointe atá tabhachtach sa scéal ar fad. Ag an am gcéanna ba mhaith liom a rá gur doigh liom go mba cheart go mbeidhmis go mór faoi chomaoin ag an Seanadóir Ó Riain chomh maith as ucht chomh cruinn agus a dhírigh sé muid ar an laige atá ag baint leis an leasú a cuireadh isteach sa Bhille an lá deiridh.
Do chuir sé ionadh orm an lá deiridh gur fhógair an Seanadóir Ó Dughghlas gur theastaigh uaidh vótáil ar an leasú seo agus sé an fá is mó gur chuir sé ionadh orm an chaint a rinne sé fhéin nuair bhí sé ag moladh an leasuithe. Seo iad na focla tosaigh mar atá i gcolún 756, Imleabhar 34, Uimh. a 8:—
"I put down this amendment not because I am sure that it is the most practical way of dealing with the matter but because I believe that there should be some provision in the Bill to safeguard the holders of licences."
An Seanadóir Ó Dubhghlas é fhéin, chuir sé i n-iúl dúinn go raibh séi n-amhras ar théarmaí agus ar éifeacht an leasuithe, go raibh sé i n-amhras ar fheil siad don Bhille chor ar bith. Agus ansin chuaigh sé ar aghaidh agus d'innsigh sé dúinn nach é leas an phobail a bhí ag déanamh imní dó ach leas aicme bhige, leas daoine áirthe a mbeadh ceadúnas acu.
Thrácht an Seanadóir Ó Dubhghlas agus seanadóirí eile ar shamplaí ó ghnóithe eile. Luadhadh tithe tabhairne—an "licensed trade" mar a dúradh—agus eile ach níl aon chomórtas, níl aon chomparáid beag nó móridir an ní atá i gceist san alt seo agus gnó ar bith eile. San alt seo, mar a mhínigh an Seanadóir Ó Riain nuair a rinne sé tagairt d'alt 54, sé leas an phobail atá i gceist—an mbeidh cead ag daoine bia atá gan mhaith, bia atá dainséarach dá mbeatha, a dhiol leis an bpobal? Ní h-é iad féin nó b'fhéidir corr dhuine anseo agus ansúd a chuirfí i gcontúirt báis, ach do chuirfí an phobal trí chéile i gcontabhairt a scriosta.
Is fada anois, buíochas le Dia, ó bhi galra fóirleathan sa tír seo. An galar a thainig ar na beithígh cúpla bliain ó shoin, an galar crúb agus béil—do bhain sé geit mhór as mhuintir na hEireann mar léirigh sé dóibh céard is galra tógalach dainséarach ann bíodh nar bhain sé ach le beithígh. Níl aon duine anois ann gur cuimhneach leis na galraí a bhí ann céad bliain ó shoin aimsir an ghorta mhóir, agus an scrios a rinne siad. Bhí na galraí dainséaracha sin ann níos deireannaí ná sin ach le linn cuimhne na coda is mó againn ní h-eol dúinn an chontúirt mhor a bhaineas le galraí tógálacha. Agus, an Seanadóir Ó Dubhghlas agus an Seanadóir Ó hAodha agus Seanadóirí eile ag déanamh comparáid idir an Bille seo agus gnóithe eile—bhí dul amú orthu. Ní h-ionann brí an Bhille seo, ní h-ionann cuspóirí an Bhille seo, níl aon chomparaid idir é agus aon Bhille eile a bhí ós ár gcóir. Sláinte agus beatha an uile dhuine sa tír atá i gceist go laídir sa Bhille seo.
Le linn an chogaidh bhí muintir na hEireann an mhíshásta le daoine a bhris an dlí agus sé an tuairim a bhí ag muintir na tíre nach é amháin go mba cheart an ceadúnas a bhaint de dhaoine a chuir an pobal i gcontúirt ach go mba cheart iad a lámhach, go mba ceart iad a chur le balla agus iad a mharú. Nílimid ag iarraidh leigheas chomh huafásach leis sin, ach bí cinnte na beidh muintir na tíre i gcoinne an chumhachta atá an t-Aire ag iarraidh a thabhairt dó. An Seanadóir Fearon, an tráthnóna deireannach, do bhí leasú aige agus d'innis sé duinn chomh riachtanach is a bhí sé go ndéanfadh muid reiteach i dtaobh "weedkillers,""artificial manures," agus mar sin de ach níl an oiread céanna imní air, is baolach faoi d'fheadfaidh a bheith na chontúirt báis do ghach aoinne an duine is boichthe chomh maith leis an duine is deisiúla. Leas soisialach an phobail atá i gceist anseo. Shíltheá nach fiú deich triuf é má bhriseann duine na rialacha a ceapfar le leas an phobail a chur i n-áirithe.
Da mba rud é go scaipfí galra go mall sa tír, bfhéidir ná beadh an scéal chomh dona ach mar tá's againn scaipfí iad i n-aon lá amháin, ó cheann ceann na tíre. Sin é an difríocht mhór idir an prionsabal atá i gceist sa Bhille seo agus aon ní eile dar luadhadh anseo tráthnóna.
Bhí mé an-mhíshásta an tráthnóna deireannach gur chuir an Seanadóir Ó Dubhghlas an cheist seo ar bhótail, go mór mhór nuair luaigh sé féin go raibh sé i n-amhras go mba é an rud ba cheart a dhéanamh.
Mar adeirim, bhí mé an-mhíshásta mar facthas dom, idir an t-alt seo agus alt eile gur buaileadh leasú a moladh faoi, dá n-éirítí iad a leasú go ndéanfaí bogach de thalamh slán an Bhille.
Fág an t-alt mar atá sé athraithe de bharr an leasuithe a cuireadh isteach an tseachtain seo caite agus beidh sé chomh maith agaibh an Bille a tharraingt siar ar fad.
Tá siúl agam go mbeidh an Seanad toilteanach géilleadh don iarratas réasúnta a rinne an tAire tráthnóna, agus an t-alt a chur thar n-ais sa riocht ina raibh nuair a tháinig se ós ar gcóir an cheád uair.
I have the feeling that many Senators on the other side of the House must definitely feel uncomfortable about the decision they have to make on the proposition put forward by the Minister. What more fundamental issue could this House conceivably be asked to pass judgment upon than the right of the citizen to live?
And of the community to suffer?
The responsibility of the Oireachtas is to ensure that the rights of both are protected. I have to confess to a considerable measure of surprise at the attitude adopted in this respect by my colleague, Senator Summerfield. Senator Ó Buachalla interrupts to say that the community must suffer.
No.
Who has suggested that the community must suffer? Not Senator Douglas or anybody who has spoken from this side. It would be the greatest mistake in the world for the people on my right to get the idea that they, and they only, are concerned about the welfare of the community. That is a responsibility that no one group in this country can afford to carry. It must be equally distributed over all of us. As far as we are concerned, we are as conscious of the necessity to protect the community as any other group whether it be in this House or outside of it. Surely, the individual trader has some rights? He has the fundamental right given to him by God to live. Who has the right to take that from him? Why should it be taken away? Are people here prepared to say that that right can be taken from traders in a particular form or by a particular method without any protection being afforded to them? It amazes me that Senator Summerfield—we understand he speaks here on behalf of the industrial and commercial community—is prepared to put the trading community of this country into the hands absolutely of the State and of State administration.
Why should the Senator misquote me like that?
I am not misquoting the Senator.
You are.
If the Senator wants to make his point clear, I am prepared to give way to him. I want to assure him that I have no desire to misquote him. What is the position of the individual trader going to be? It has been put in excellent form indeed by Senator Douglas. How anybody can give way to the idea, after listening to the case put forward by Senator Douglas, that it is more justifiable to give authority to an inspector to take away a man's right to live than allow him to have recourse to the courts is beyond me. Certainly no one who pretends to stand for even a sectional interest—the trading community in this country—should support that proposition as against the proposition put forth by Senator Douglas. Is there any answer to the point made that a trader should find himself, his future and his prospects—and his children's opportunities in the world— placed absolutely in the hands of an inspector, or, in other words, in the hands of the all-powerful State?
That is what the issue before us amounts to. The more power that we give to the Minister and to the officials, the more powerful the State becomes. Every other day we are creating the feeling in the minds of the people that the State is the thing that matters; that it matters far more than the rights of the citizen. Those who are trying to protect those rights are trying to protect something that is very sacred indeed, and I wish that there was a clearer appreciation of that. It is disastrous to be putting officials into the position in which they are all-powerful. We are all human. We are all conscious of the fact that officials try to discharge their obligations, but it is impossible, I think, to man any Government organisation with a band of people who are so superlative that they can be trusted in every circumstance to give a judicial decision. We have ample evidence that in many cases they have not given judicial decisions. Yet on their decision a man may be left in a penniless position.
The Minister, in defence of what he wants the House to do, illustrated his argument by pointing to the position of an inspector who might conceivably find a situation like this—that in a particular merchant's premises there were two packets of peas side by side. One was for human consumption and the other was a packet of seed peas which had been dressed with D.D.T.
The Minister said that an assistant in the shop might made a mistake. He might sell the packet that was for seed for human consumption and a calamity might happen. He urged that in such a case there would be no time to go to court, and that, therefore, the only solution would be to withdraw the merchant's licence. But surely the most effective thing in a case of that kind would be for the inspector to point out to the trader the dangerous way in which he was handling his goods, and that he should have the packets separated immediately. He could then bring the trader to court and let the justice determine whether or not he was a competent person to carry on a business. Would that course not be at least as effective as the taking away of the trader's permit to live? In my opinion it would be a more just way of dealing with the trader and would be equally effective.
Senator O'Donovan, in opening the debate, said that he thought this was rather innocuous and that it did not matter one way or the other whether the amendment was withdrawn. Some other Senator referred to the fact that the removal of a licence by Ministerial Order was much more effective and much more desirable from the point of view of the person penalised than to haul him before a court. I am not so sure about that. At least the man taken to court will have the chance of having his case tried before an impartial judge. He will also have the right to appeal. In that way he can still battle for his life. If the inspector is to be the sole authority, that chance will be taken from him.
Senator Douglas in very cautious language referred to the position in which a trader will find himself if his licence is withdrawn. What will happen then? The people on my right can answer that question much better than I can. But I do ask again, what happens? I have heard of instances myself where the local cumann was called together at which resolutions were passed asking that so-and-so should have his licence restored. In that way the impression is created that the State is becoming such a boss and, in ways, is becoming such a tyrant, that the only thing for all of us to do is to become obedient and respectful—that if we hang on we can be quite certain that if we commit an offence we will have such contacts that somehow or other we will not suffer any penalty for our offence. I think that such a feeling as that is most undesirable from the point of view of building up a healthy and self-respecting community, and that it is really disastrous. I do not charge the person as being the sort of person who will have any desire to be unjust.
You have gone part of the way.
Many injustices have taken place and will and must take place even under the most careful administration. The fundamental issue is that this House has not the right to give such power as this which will enable an authority under the State to take away a man's right to live without any opportunity being given to that man to defend his right.
This is a subject on which I admit Senators might have different points of view. But it is rather disappointing to hear a Senator like Senator Baxter, who cannot avoid bringing in a certain amount of—shall I say?— low politics about Fianna Fáil cumainn being brought into this business. However, I suppose we have to expect that.
I could be much more specific.
I know you could. You often have been. It is a pity that we cannot avoid that and discuss the matter on the merits, as Senators on both sides did up to the time Senator Baxter spoke. Senator Sweetman talked about this Bill being different from the Milk and Dairies Act and said that you might take away a man's whole livelihood. I do not think there is much in that point. One specific instance given was that of peas. If we stop a shopkeeper from selling peas, it would not be more than 1 per cent. of his business and he could carry on the other 99 per cent. To take the other extreme, perhaps in the case of a butcher it might be his whole business. Anyway, I think there is not much in that point of Senator Sweetman's. I do not think that under this Bill any more hardship could be done than could be done under the Pigs and Bacon Act. After all, it was possible for me under that Act, when Minister for Agriculture, to put Henry Denny and Company out of a business worth a couple of million pounds. I did not do it. I did not put anybody out of business.
Another point made was that a bilious inspector might have a man's licence taken away. That does not happen. I wish Senators appreciated how hard it is to get a licence taken away. An inspector sends up a very adverse report and this is what happens. That report is commented upon by his senior officer. It goes through various officers in the Department and then it reaches me. All the comments are on it. Let us say it is a first offence and the person gets off with a warning. A second report comes up and then a third report. Then we will say we will have to do something. A senior inspector is sent down to find out if the inspector is in any way prejudiced against this particular trader. Of course I need not tell you that inspectors do tell such a man that he should not do that.
Senator Baxter seemed to take it for granted that an inspector walks in and when he sees two packets of such peas on a shelf, walks out again and comes up and I cancel the man's licence. He knows very well that the inspector will say that it is a very dangerous thing to have these two packets of peas side by side, one for food and the other poisoned. If the trader says: "I will make them all right," that is all we hear about it. But if the man says: "Mind your own business and I will mind mine," and if the inspector remains there and the proprietor goes out of the shop and the child over 14 comes in for a packet of peas and is handed out a packet, then the inspector sends up an adverse report.
As I said before, there is no use trying to hold out the bogey that if you do not stick to Senator Douglas's amendment we will have half the people of the country put out of business without the right to have representations made on their behalf, except, of course, from Fianna Fáil cumainn. That is ridiculous. The only issue is whether, not only taking the trader into consideration but also, I submit, taking the consumer into consideration, which is a very important matter, it is better on the whole to have the licence revoked by the Minister or by the court. When you take both sides into consideration, seeing that nobody can state a case of great hardship in the past under any of the Acts passed, seeing that Senator Sir John Keane stated that regulations have been laid on the Table for the last 25 years and none of them were ever revoked—it is a great testimonial to the Governments in office for the last 25 years that the Seanad and the Dáil were always satisfied with the regulations made—why do the Seanad think that somebody will go mad in the future and put everybody out of business? It is all very fine to say, as Senator Baxter said, that the inspector should say: "You should be very careful about these things," and then bring the man into court if he is not careful. I do not think Senator Baxter can say that only for him the Minister would not put that thing right.
Has that happened anywhere without your regulations?
We are talking about things which may happen. I am arguing that there is no great danger to traders one way or the other. They are never treated very badly, whether the Minister or the court is dealing with them. There is more danger to the consumer by having to wait for court proceedings. Therefore, I say that this amendment should be accepted and that the Minister should deal with the licence.
Then there is another point. Suppose I deal with butchers. Every Senator agrees that the Minister can license the butchers and, of course, refuse a licence where he thinks he should refuse it. If the Seanad ties the Minister, and if I am to license the butchers, I shall be very careful to say to my inspectors: "Do not license any butcher unless you are sure he is all right. Let the other fellow stay out." In the past, under some Acts, there was a provisional licence provided for. That was provided for in the Fresh Meat Act. In other Acts there was no provision for a provisional licence. Under the Eggs Act we said: "We will license everybody, but we give due warning that unless you have premises to comply with the regulations within a certain number of months out you go." That is what I would be inclined to do when dealing with butchers, because I know that certain butchers would not come up to the standard straight away. If they all came up to the standard, there would be no necessity to deal with them. It is obvious that they will not all come up to the standard.
I would say to the butchers: "I will license everybody, but in six months"—or whatever time may be considered reasonable—"your promises must be up to the standard or your licence will be revoked." That is a thing the Minister would have no difficulty in doing if he had the power of withdrawing the licence himself. But, if he has not that power he will have to move more cautiously. He will have to approach it in the other way. He will have to say to the butchers: "I am going to bring in a licensing system in six months time and if you are not ready by then you will get no licence." I think there would be more hardship that way than the other way. Senators may not appreciate that point.
If the Seanad do it in the way I am asking them to do it, we will be able to bring in our regulations immediately and get the butchers up to the standard as quickly as possible. If a man is making a good effort to come up to the standard he will be given a certain amount of liberty. We will not be too hard on him. But to the man who makes no effort and who is a danger to the public we will say: "We will revoke your licence." The way I suggest will be fairer to the traders and very much more secure as far as the consumer is concerned. We will have it both ways. Whatever some Senators may think, I cannot see that there will be any danger of injustice to traders under the section as it came before the House originally and as I am asking the Seanad to leave it now.
What I am putting to the Seanad is that, so far as the traders are concerned, they are just as safe under what I propose as they would be under what Senators on the other side propose. In fact, I hold that they will be safer, but I do not ask Senators to come that distance with me. I merely say that they will be as safe. So far as the consumer is concerned, he at least is very much safer under the plan I suggest than under the plan suggested by the other side.
There is one point more I want to make. Suppose I suspend a butcher's licence. What happens? He has a remedy if he wishes—I am not advocating that he should break the law because he would be technically breaking the law by appealing to the law—of saying: "I am not going to close." The only thing I can do in that case is to bring him to court. He has the court to decide his case, but I admit— I do not want to be unfair in this— that if the court finds that the regulations were carried out by me and that he disobeyed, he has committed a double offence, because he has committed the offence of breaking the regulations for which I revoked his licence and the offence of not obeying the regulation when his licence was revoked. But if he thinks he has a serious grievance, he has the court to fall back upon. The courts are not entirely ruled out under the procedure suggested.
Amendment put.
The Seanad divided: Tá, 21; Níl, 14.
Tá
- Clarkin, Andrew S.
- Corkery, Daniel.
- Crowley, Tadhg.
- Farnan, Robert P.
- Hawkins, Frederick.
- Hearne, Michael.
- Hogan, Daniel.
- Honan, Thomas V.
- Kehoe, Patrick.
- Kennedy, Margaret L.
- Longford, Earl of.
- Lynch, Peter T.
- Ó Buachalla, Liam.
- O'Callaghan, William.
- O'Donovan, Seán.
- O'Reilly, Patrick.
- Ó Siochfhradha, Pádraig.
- Nic Phiarais, Maighréad M.
- Quirke, William.
- Ryan, Michael J.
- Summerfield, Frederick M.
Níl
- Baxter, Patrick F.
- Butler, John.
- Counihan, John J.
- Douglas, James G.
- Fearon, William R.
- Hayes, Michael.
- Horan, Edmund.
- Johnston, Joseph.
- Keane, Sir John.
- McGee, James T.
- Madden, David J.
- O'Reilly, Patrick John.
- Sweetman, Gerard.
- Tunney, James.
Tellers:—Tá: Senators Hearne and Hawkins; Níl: Senators Sweetman and Baxter.
Amendment declared carried.
I move amendment No. 19:—
In page 30, Section 58, sub-section (2). in line 15 and in line 16, before the word "evidence" to insert the words "prima facie”.
On the Second Reading, Senator O'Dea thought that the words "prima facie” should be inserted before the word “evidence.” This amendment is the result of Senator O'Dea's expression of opinion then. I feel that this is a case in which I hold a brief from a solicitor, Senator O'Dea, who, as I might say, instructed me in this matter, and, while I do not think the omission of the words “prima facie” would be fatal, I think their insertion would do no harm. It is from that viewpoint that I approach this amendment.
In this sub-section the word "evidence" appears. I would like to consider the meaning of the word "evidence". The word evidence signifies, in its original sense, the state of being evident; that is, plain, apparent or notorious, and that is the definition of the word "evidence" that may be found in Dr. Johnson's Dictionary. However, owing to a peculiar inflection of the English language, the word "evidence" is now applied to that which tends to render evident or to generate proof and that is the sense in which the word "evidence" is commonly used in law books and in law courts. "Evidence" thus understood has been well defined as any matter of fact, the tendency or design of which is to produce in the mind a persuasion affirmative or disaffirmative of the existence of some other matter of fact.
Certain matters may be proved by what is called specified or pre-appointed evidence. Pre-appointed evidence is generally found in statutes. In this case, Section 58 (2) provides:
Whenever regulations made under sub-section (1) of this section provide that any particular certificate or other evidence shall be evidence for all purposes of the result of a test, examination or analysis of a sample, such certificate or other evidence shall, as respects those samples, be accepted by all Courts of Justice as evidence of the result of such test and shall also be accepted by all Courts of Justice as evidence that such test was carried out under and in accordance with the regulations.
That is what is called pre-appointed evidence. Pre-appointed evidence, or specified evidence, can be divided into two categories, namely, prima facie evidence and conclusive evidence. Prima facie evidence has been defined as evidence of a fact which the court must take as proof of such fact unless it is held disproved by further evidence. Conclusive evidence has been defined as evidence of a fact which the court must take as full proof of such fact and it excludes all evidence to disprove it.
If we look at Section 52 (3) we find that the words "conclusive evidence" are contained therein. Section 52 (3) provides:
"For the purpose of sub-section (2) of this section the Minister may certify the date at which the evidence mentioned in the said sub-section came to the knowledge of a health authority, and such certificate shall be conclusive evidence of the said date."
In other words, no evidence can be received in disproof of the date shown on the certificate. But it is otherwise in Section 58 (2), where the word "evidence" only is used and it is clearly intended by the draftsman that the word "evidence" there should be prima facie evidence. It is clear it is not conclusive evidence and, therefore, there being two kinds of what I may call specified or pre-appointed evidence, namely, prima facie evidence, on the one hand, and conclusive evidence, on the other hand, and as it is intended that the evidence provided for by this sub-section should be prima facie, there is no reason why the words “prima facie” should not be inserted before “evidence”.
While I am moving this amendment instructed by Senator O'Dea, I feel that the omission of the words "prima facie” would still leave the word “evidence”prima facie evidence, because it cannot be conclusive unless the word “conclusive” appears before the word “evidence”. I leave it to the Minister's good nature to decide whether or not he will accept this amendment. If he accepts it, it will do him no harm, and if he refuses it, I will not be offended.
Senator Ryan has very kindly left it to my good nature to decide this issue and I am very glad he has not asked me to engage with him in legal arguments. I should mention that there is one thing to which perhaps Senator Ryan has not adverted. I am advised that the regulations under this section may provide that not only the certificate presented by the analyst on the prosecution side, but also the certificate presented by an analyst on the part of the defendant, can be taken as evidence—in other words that the analyst on either side need not appear to say: "That is my certificate." I do not know much about law but it would appear to me to be rather strange to have two prima facie evidences submitted at the same time. I think it would be much better just to provide for evidence in both cases and leave the section as it is.
Amendment, by leave, withdrawn.
An Leas-Chathaoirleach
Amendment No. 20 is out of order.
Amendment No. 21 not moved.
Government amendments Nos. 22 and 23:—
22. In page 44, Section 82, line 15, to delete the words "a newspaper" and to insert the words "one or more newspapers".
23. In page 45, Section 84, line 14, to delete the words "a newspaper" and to insert the words "one or more newspapers".
The case for these amendments was raised on the Committee Stage.
Amendments agreed to.
I move amendment No. 24:—
In page 53, Section 108, to delete sub-sections (3) and (4) and insert instead the following sub-section:—
(3). In any action in law taken against a health authority by any person who shall claim to have sustained any personal injury caused in an institution by the negligence of the health authority or by their officers or servants; or in any action taken by his personal representative if the injury shall result in the person's death, it shall be no defence to the said claim that the person so injured was a non-paying patient of that institution at the time of the said injury and such defence shall not be pleaded in any court of law.
The intention of this amendment is to provide against the dilemma of the non-paying patient at the present time. The non-paying patient cannot succeed in respect of the negligence of a medical officer of the local authority as against the local authority, if the local authority discharges its duty by appointing a competent medical officer. I think the idea behind this amendment is to put the non-paying patient in the same position as the paying patient. Of course, I recognise that the section which this amendment is intended to affect, is very wide. It might possibly be held that everything which this amendment is intended to effect has been effected by the section as it stands.
Sub-sections (3) and (4) of Section 108 are very wide and it might possibly be held by the court that if a medical officer of a local authority was negligent then a person who suffered damage by reason of such negligence would be entitled to recover compensation from the health authority. After all, there cannot be such conflict between the amendment which I move and sub-sections (3) and (4) of Section 108. Before I consider pressing the amendment I should be glad to know what views the Minister takes or what advice he has received as to the relative merits of the amendment and the two sub-sections which are affected by the amendment.
I must say I find it extremely difficult to see any great difference between the section as it stands and the amendment. Perhaps I should say at the outset that the law before this section was drafted, that is the law as it stands at the moment, appears to be that a local authority is not responsible for the negligence of a doctor working in the hospital and it is very difficult for an aggrieved person to establish a case of negligence against a doctor in such a hospital. The section was introduced therefore to make the health authority liable for any damage that a person might suffer through such negligence. That is, I am advised, how the section stands at the moment. It is a section which gives a right to an aggrieved person that he finds it almost impossible to establish as the law stands now. Again, there is a certain doubt with regard to these institutions, according to the authority under which they stand at the moment. There is no doubt, I think, about institutions under the public assistance authorities. Certain decisions were given which anyway, went to show that if the patient was non-paying, he has no case. In other words there was no contract whatever, between the local authority and the patient if he was paying nothing. If the patient was paying, that appeared to establish a contract and he had a case for compensation if he suffered personal injury through the negligence of the officers of the hospital.
It is not certain at all that the same law would apply to institutions under the public health authority. No case has been brought but any legal advice I have got goes to show that it is extremely difficult to establish a case in such circumstances. Anyway, to make assurance doubly sure, we thought it better to make it perfectly plain that if a person suffers personal injury in hospital through the neglect of one of the officers that person has a claim against the authority. According to my advice the amendment does not give as clear a right to an aggrieved person. There is a danger I think that the amendment leaves the common law as it is and if the amendment were adopted, instead of sub-sections (3) and (4), the injured person would have to establish the neglect of the officer and that would leave the thing more difficult in fact than it is at the moment. If we want to give, as I presume members of the Seanad do want to give, fair protection to a patient going into any of these institutions and if he suffers injury that he should not have suffered under ordinary good medical treatment, then he should have an action against the local authority. If Senators agree that should be the law then I am advised that it is better to leave the section as it is rather than accept the amendment.
Mr. Patrick O'Reilly
In putting down amendment No. 25, my idea was to achieve the same purpose as that indicated in the amendment put down by Senator Ryan and Senator O'Dea. My amendment seeks to have added at the end of sub-section (3) of Section 108 the following words:—
and the fact that any person has not paid or is not liable to pay for any service or treatment shall not prevent any such person from recovering compensation under this section.
An Leas-Chathaoirleach
Does the Senator wish this amendment to be considered in connection with amendment No. 25?
Mr. Patrick O'Reilly
Yes. Not being a lawyer I do not know whether my amendment or that of Senator O'Dea and Senator Ryan would be the better one but so long as there is a doubt, that doubt to my mind is not removed by the section as it stands. It is my view that, unless we are satisfied that is the position, Senator Ryan's amendment or my amendment should be added to the section.
There is no doubt that Senator Ryan's amendment is covered by sub-section (3).
Mr. Patrick O'Reilly
It can still be argued that the position will not be clear so far as persons who are getting treatment by way of dole, rather than actual right, are concerned unless it is set out in the section.
I think that the Senator is confusing the law which applies to public assistance authorities with that which applies to public health authoritaies. The position as regards public assistance authorities is clear.
Amendments Nos. 24 and 25, by leave, withdrawn.
The following Government amendment was agreed to:—
26. In page 53, Section 109, line 25, after the word "resolution" to insert the words "annulling the Order".
Amendments Nos. 27 and 28 not moved.
Government amendment No. 29:—
In page 55, Second Schedule, in the second line of paragraph (2), to delete the words "medical officers of health" and to substitute the words "registered medical practitioners"; and in the fourth line of paragraph (2), to delete the word "officers" and to substitute the word "practitioners".
This amendment is intended to make sure that every doctor will be eligible to treat an infectious case.
Amendment agreed to.
Government amendment No. 30:—
In page 55, Second Schedule, after paragraph 14 to insert the following paragraph:—
15. Precautions against the spread of infection from animals.
Senator Fearon mentioned this matter on some stage of the Bill and we thought it better to make perfectly certain that we can deal with infected animals as a source of danger.
Amendment agreed to.
Bill, as amended, reported and report agreed to.
Question: "That the Bill be received for final consideration"—put and agreed to.
Agreed to take the next stage now.
Question proposed: "That the Bill do now pass."
This Bill is, in the main, an enabling measure. It makes provision for rules and regulations. It adds to the powers possessed by the Minister very considerable powers but we have no indication of what precisely it is proposed to do under the Bill or when these powers will be put into operation. Quite plainly, it will take many years to implement certain particulars which the Minister mentioned, such as the redistribution of dispensary districts. Nor is the cost of administration of the measure ascertainable. While it will be borne by the central government, there is no substantial difference between the taxpayer and the ratepayer. The Bill provides for taking considerable private practice from medical practitioners but makes no provision for compensation. It also provides for a very considerable addition to the duties of county medical officers of health, who are very poorly paid in relation to their qualifications and to the duties which they have to perform. Finally, I think that it is a great pity we have had to deal with this Bill in present circumstances. It is a Bill of great importance about which there should be calm discussion and it should have been dealt with in an atmosphere of delay rather than in an atmosphere of physical heat, in the summer, and in a hurry. We should have had better discussion on this Bill in November or February. The Minister might have accepted more amendments and the House might have taken greater care of the Bill. The House was not able to devote proper attention to the Bill and we had a rather poor attendance last week. Apparently, experience on this Bill would go to prove that higher pay for Senators does not bring more Senators to the House and that what brings more Senators to the House is a defeat of the Government.
I should like to reinforce what Senator Hayes has said and I should like to ask the Minister if he would get the Government after the holidays to examine the whole question and implications of this matter of delegated legislation. We see it in its dangerous aspects in this Bill. We had a Health Bill which aroused fierce opposition in the Dáil. Ultimately, in face of that opposition and other circumstances which I need not mention, that Bill was withdrawn. Yet, through the medium of delegated legislation, the Minister has got power to introduce all the objectionable features of the earlier Bill into this measure. The House will have less control over the delegated legislation than it would have over statutory legislation. We have examined this delegated legislation at rather close quarters. We have seen the ambiguities of wording and we are aware that the whole matter is due for examination and overhaul, so that the legislature will be protected against a form of law-making over which it has at present little or no effective control.
Mr. Hawkins
It has been suggested that this Bill would have got more consideration if it had been held over until the autumn. As I said on the last occasion, agreement was reached that this Bill would be taken this session. We, on this side, were prepared to sit not only last week and this week but next week and the week after, if necessary, for the consideration of amendments. It cannot be held that any attempt was made from this side of the House to rush the Bill.
That is quite unreal.
Mr. Hawkins
It is really what happened. I have come to the conclusion that these insinuations and accusations have been made because this Bill and the previous Bill having received much criticism in the other House and outside, an attempt had to be made to create a bogey-man. The Opposition in the other House and in this House failed to put down any concrete amendment. They failed to find anything in the Bill which could be improved, save a few trifling matters. They now suggest that, because they had not time at their disposal, they are being deprived of something that should be their right. We were prepared to give them plenty of time and to meet as often and as long as they wished so as to have full discussion. It was suggested that the Minister was not prepared to give any consideration to amendments put up by the Opposition here. The fact that the Minister has brought in amendments and has adopted some of the suggestions put forward on the last day shows that the fear of bringing back the Dáil was just another bogey. I welcome this Bill and I hope it will receive the support, particularly, of the medical people, whose assistance will be most essential in its good working. I regret to say that there has been some criticism levelled from that profession at certain sections of the Bill but I suppose time will heal all these things. I particularly welcome the section making provision for maintenance of dependents of persons receiving treatment for infectious disease. That is one of the great benefits which the Bill confers. That was one of the things which prevented people in the past from claiming treatment, which might have been beneficial, at an earlier stage—the fear that their dependents would be deprived of their earnings. If for nothing else than that provision, the Bill is well worthy of the whole-hearted support of the people.
This Bill is, in my opinion, the first experiment in what we might call wholesale delegated legislation. It is, of course, a sign of the times and an indication of the number of problems which would confront us if they were left to be solved by the Legislature. Therefore, the Legislature had to content itself with passing this Bill which is more or less an enabling or an empowering Bill, conferring upon the Minister power to make regulations which, as appears in the First Schedule to this Bill containing the list of Acts to be repealed, will in effect repeal a considerable volume of existing legislation. In other words, when the Minister will have made his regulations under this Act they will replace to a certain extent, as far as modern requirements are concerned, a great number of Acts of Parliament which are repealed by this Act. There is nothing in this Bill which would justify the repeal of these enactments. These enactments must be entirely repealed by the regulations which this Bill will empower the Minister to make. I think it is a great tribute to our present Minister for Health that he has been able to steer such a Bill as this through both Houses of the Oireachtas with the minimum of friction.
With the aid of delegated powers.
I think it is a question of character rather than of delegation.
The Bill confers upon the Minister most widespread and most far-flung powers, including, as appears in the Second Schedule, power to make regulations or to impose restriction on the holding of wakes; power to provide for the safe disposal or destruction of infected or dirty articles, and also to make regulations providing for precautions against infected food and drink. The Minister is given power under this Bill to make regulations on every conceivable matter or subject relating to health, public or private. Therefore, the Minister is to be congratulated on convincing the Oireachtas that this is a most desirable Bill, as it is. He has done so with the minimum of friction. Now, we can only hope that he will make the regulations which he is empowered to make in the same spirit as the Oireachtas has given him these powers. I am sure that when these regulations will be laid on the Table of the House they will justify the confidence which both Houses of the Oireachtas have shown in the Minister. I am satisfied that this Bill, which after all is only a nucleus, will provide better and healthier conditions in this country than have prevailed in the past. I therefore wish the Bill success. The object is a laudable one. I am confident that in the hands of the Minister and of his Department the Bill will be made both workable and successful.
I do not know whether there is any connection in the name or not but I must say that I have rarely heard Senator Ryan so complimentary to anybody in the House as he has just now been to the Minister.
We are old friends.
I wonder if, as a lawyer——
An Leas-Chathaoirleach
The Senator might deal with the Bill now.
Do not interfere with the Ryans.
This is the framework of an immense structure. Let us hope that it will make a wonderful impression on the health of the people of the country. Nobody, despite anything I may have said in the debate, would for a moment dream of questioning the bona fides of the Minister in his desire to improve the health of the community by looking for and getting all the vast powers under this Bill to regulate our lives, our behaviour and our conduct. However, I would like to know what the position is going to be, for instance, with regard to these regulations when they are made. When are we going to get these regulations? How long from the time they are actually made until they will be available to us? However optimistic Senator Ryan may be about the manner in which the Bill is going to operate I doubt if anybody is alive in this State to-day, or is yet to be born, who will see any regulation made under this Act annulled. It does not matter what the regulation is—that is my prophecy. That is the position and there is no use in blinking the issue. We have given all these powers to the Minister—how vast we do not know, nor does even he know until they begin to work out, until the framework is to be closed in with all these decisions that have to be made in the form of regulation. Once the regulation is made and tabled by the Minister, there it is going to lie and it is not going to be changed. We will all discover that, however disagreeable it may be in whole or in part. However, there it is —the Minister has got the power. The Bill naturally, and I think rightly, demanded very close investigation and a wide discussion. It is important, therefore, that we should be so interested in the future health of the people of the country and in the machinery which would be made operative to improve the health as to give every aspect of it the most careful consideration possible. The comment made by Senator Hayes was most valuable and real. It is no use pretending that it was possible either for the House or for the Minister at this period of the session—the Minister after a long, difficult and tiring session —to give this Bill the kind of examination it would have got, say, two or three months hence.
I am quite sure that if Senator Hawkins were thinking of the hay which requires to be attended to at home, he would have great difficulty in applying his mind to the various aspects of this measure in the way he would like to. On the whole, there may have been some irritation—perhaps not a great deal. The comparative absence of irritation is, perhaps, attributable to the Minister—I do not want to take from it. I have said earlier in the debate that there are very few Ministers or men who can manage to handle people so well and that he can even get them sometimes to do things against their will. The fact remains that there are misgivings. Whatever Ministerial policy may think about it, there are well-founded and honest fears which we must always have when we entrust the Government with such powers. The only thing we can hope for is that the Act will be operated successfully. Perhaps the Minister will give us some enlightenment with regard to the making of these regulations. Can the Minister tell us how soon after the regulations are made they will be available to us so that we may have time to make an examination of them? In connection with regulations made under other measures it took a long time to have them made available to us due to delays, we understood, in connection with the translations. That was a handicap on those who desired to discuss them or to move to have them annulled. The Bill will now become law, and it will be the responsibility of all of us to help in its administration as efficiently as we can.
Senator Hayes asked when the Bill will be operated. I think I mentioned more than once that it will be brought into effect piecemeal. The provision applying to the maintenance of a family of a person who is suffering from tuberculosis or an infectious disease will be put into operation as soon as possible. As far as that goes, there will not be any elaborate regulations, but we will have to lay down scales and so on. It will be a matter of fixing scales. It will be easy to bring that part of the Bill into operation, and when it does come into operation the cost will be about £300,000 a year. The mother and child welfare scheme will be brought in wherever it is possible and to the extent that it is possible. Some cities and towns are already working a mother and child welfare scheme to a certain extent. I am not able to give an estimate as to when the scheme will come in because it will mean that we will require a trained nurse as well as a midwife in every dispensary district. It will take a long time to get the staff that will be required. For some years to come it will take about £500,000 in addition to what is being spent on it now. Tuberculosis alone will take another £500,000 in addition to what is being spent on it now. That means the building of sanatoria and of everything going full tilt. The part dealing with infectious diseases will also be taken piecemeal. We visualise dealing with immunisation as a separate subject, and also fever hospitals. I do not think there will be as much to be done there, over and above what we are doing at the moment, as in the case of some other parts of the Bill.
With regard to the expenditure, the calculation in the Department is that we will be spending an extra £1,000,000 in about three years from now. That is as far as I can go at the moment. We calculate that it will take about ten years before we reach what we would regard as the full expenditure under this Bill.
That does not include the spending of money on the building of hospitals?
No. That is a different matter. The bringing in of the food regulations will be a slow job because, in the case of food, there will have to be very protracted consultations with the various interests concerned. The making of the regulations, after the consultations have taken place, will take a long time. I do not think there will be much done under the food part of this Bill for some time to come. As regards the part of the Bill dealing with medical preparations, we will probably act fairly quickly. We will do a little every year. For instance, we may have to make an Order dealing with penicillin and a few matters of that kind. Again, there will not be anything done in a big way under that part of the Bill for some time.
With regard to the regulations about which Senator Baxter asked, these would take a long time. There will have to be a great deal of consultation as regards the mother and child welfare scheme and infectious diseases. There will be long consultations with the medical council and with the health council. As soon as the regulations are made they will have to be laid on the Table of the House. Senators will have the opportunity of reading them and of raising any matter that they think fit on them.
Senator Sir John Keane raised the question of delegated authority. That is a very interesting subject, and if a commission was being set up to examine it I would very much like to be on it to talk about this thing in a calm and philosophical way. I do not know, of course, whether it will be discussed in that way or not. I must say that I think the time given to the Bill in the Seanad was rather satisfactory. It was before the House for almost as long a period as it was in the Dáil where there are very many more members. I do not think I was very much longer with the Bill in the Dáil than I was in the Seanad. In conclusion, I would like to join with Senator Hawkins in the hope that, when the Bill becomes law, it will have the support of the people, the support of the local authorities and, in particular, the support of all branches of the medical profession.
Question put and agreed to.
Ordered: That the Bill be returned to the Dáil.
The Seanad adjourned at 9.50 p.m.sine die.