Léim ar aghaidh chuig an bpríomhábhar

Seanad Éireann díospóireacht -
Wednesday, 15 Feb 1956

Vol. 45 No. 13

Wireless Telegraphy Bill, 1956—Second and Subsequent Stages.

Question proposed: "That the Bill be now read a Second Time".

This Bill is intended to remove certain doubts that have been raised about the powers conferred on the Minister for Posts and Telegraphs under the Wireless Telegraphy Act, 1926. The doubts have arisen by reason of a recent decision of the High Court under which it was decided that a district justice was wrong in law in not convicting a man who had been prosecuted for having an unlicensed radio set in a motor-car at a particular place. In the course of their judgment, two of the judges expressed the opinion—and they emphasised that they were giving merely an opinion—that the wording of Section 5 of the Wireless Telegraphy Act, 1926, restricts the issue of licences for wireless telegraphy apparatus to apparatus "in a specified place" and that, accordingly, there is no power under the Act to issue licences for wireless apparatus in motor-cars.

On this view of the law every person who has or has had a wireless set in a car outside or away from premises already covered by a wireless licence has been breaking the law and has been committing an offence, whether or not he has held a separate licence for it.

The Wireless Telegraphy Act of 1926 was intended to make provision, among other things—I am now quoting from the long title:—"... for the regulation and control of wireless telegraphy on land, at sea and in the air ..."

Moreover, under Section 3 of the Act the following provision is made:—

"... no person shall keep or have in his possession anywhere in Saorstát Éireann or in any ship or aircraft to which this section applies any apparatus for wireless telegraphy ..."

without a valid licence from the Minister.

It seems clear that the Oireachtas intended that the Minister for Posts and Telegraphs should have the widest powers to issue licences for the keeping and possession of wireless telegraphy apparatus anywhere within our jurisdiction and that the reference to "a specified place" in Section 5 was not intended to restrict the Minister's powers to issue licences, but rather to ensure that each licence would be related to a particular address or place for the purpose of control.

Successive Ministers for Posts and Telegraphs since 1927 have taken and acted upon that view which was and is a reasonable interpretation of the law. However, since doubts have been raised that it does not accord with the strict letter of the law, it is considered desirable to remove these doubts and that is the purpose of this Bill. It is a very short one and deals only with the issues raised in the recent High Court case.

Section 2 of the Bill provides that a vehicle shall be deemed to be a place separate and distinct from the premises in which the vehicle is ordinarily kept.

Section 3 provides for the retrospective operation of Section 2 and for the validation of the statutory regulations made, the licences issued and the licence fees collected in respect of wireless telegraphy apparatus in vehicles before the passing of the Act.

Although retrospective legislation is objectionable in principle, I do not think that reasonable objection can be taken to it in this instance. We are not in any event proposing to create a new offence or to impose a new burden retrospectively. In so far as successive Ministers for Posts and Telegraphs since 1927 may have been assuming powers not conferred on them by the Act—I say "may have been" advisedly because the position is not at all free from doubt—they have been doing so in all good faith. Moreover, if they were wrong in assuming these powers, there has been, and is, no provision in law for having a wireless set in a vehicle and motorists who use or have used car radios have been committing an offence. If so, this Act is needed to regularise the position.

It is, of course, essential for the control of the use of wireless telegraphy that the Minister should have the same general powers of regulation and licensing in regard to vehicles that he undoubtedly has in regard to premises, ships and aircraft. In other words, the Minister must have the machinery for licensing. The Minister's power to fix the licence fees (if any) to be charged in particular circumstances by statutory regulations is already conceded in Section 6 of the 1926 Act. I mention this because representations have been received from certain quarters to abolish or reduce licence fees on car radios and this Bill may appear to be a rejection of these representations, but that is not so. It will merely confirm the powers the Minister has been operating and under these powers he will still be free to deal with such representations on their merits.

There can be little doubt but that it was the intention of the Oireachtas, in passing the 1926 Act, to empower the Minister to issue licences. Therefore, as the Minister pointed out, the purpose of the Bill is to clear a doubt that has arisen as a result of a court case. With regard to car licences and licences in general, I think we all agree that, where a wireless set has been used and the Minister has authority to issue a licence, that should be the case.

I would recommend, for the Minister's sympathetic consideration, the representations which have been made for the removal of, or at least a remission in, the licence fee in the case of a wireless set attached to a car. It is an entirely different question from that of a wireless set in a caravan or any other temporary place of abode. In a car, a wireless set is, as it were, a substitute for the wireless set in the man's home from which he is temporarily absent and such a set may be of very great value to him. In many cases, it could be a very important part of his business. Therefore, I would urge the Minister, when making the regulations authorised by this Bill, to remove, if possible, or at least to reduce the licence fee in relation to a wireless set attached to a car.

Mr. Douglas

I gather from Senator Hayes that the Minister is anxious to get this Bill through both Houses of the Oireachtas to-night. I do not want to delay unduly the passing of this Bill, but I should like to express my regret that the opportunity will not be given to the Seanad to have a debate on the Wireless Telegraphy Bill, 1926, because there are a great many other sections of the Bill which, I think, could well be amended in the present year. For instance, in the Wireless Telegraphy Bill of 1926, I do not think there are adequate provisions for dealing with interference, which has now become a very serious problem for people using wireless sets not only in this country but in other countries. Similarly, I think there are no adequate provisions under the 1926 Act for insisting that very high frequency apparatus in hospitals are suppressed, so that they will not interfere with what has now become quite a popular habit in Dublin and the Northern Counties, television. It is an extremely great problem to-day and one which, sooner or later, will have to be faced up to by the Minister.

I feel that if there had been an opportunity to discuss this Bill at length we could have asked the Minister to consider introducing into this Bill—which is, in fact, an amendment to the original Act—legislation which would enable him to enforce the fitting of adequate suppressors to electrical apparatus which interferes particularly with wireless reception. The Minister for Posts and Telegraphs has made it perfectly clear outside this House that at present he is not considering the introduction of television into the Irish Republic. Therefore, that is not an immediate problem. It is a problem, however, which, sooner or later, we shall have to face in this country. I think the opportunity might have been taken under this amending Bill to introduce legislation to deal with these things.

I wish to ask the Minister how portable wireless sets are covered by legislation. There has been a large development in this type of wireless apparatus in recent years. I notice people using small portable radios in trains, buses, motor-cars and at picnics. It may be the radio used in the house: it may be a second radio. It seems to me that, if it was found that a radio in a motor-car was not covered, it is possible that a portable radio which is taken out of the house where it is usually operated is not covered by the existing legislation. It may be found that there is a defect in the legislation.

I do not wish to delay the passage of this necessary Bill, but I think that at least one member of the House should express a reluctance, which I imagine is shared by many of us, in regard to the retrospective legislation involved in this Bill. The Minister has made a case for it and, in the circumstances, I think we must accept that case. However, as we all know, it is a very dangerous principle and a doctrine of intention, as applied to legislation, would be extremely dangerous, too. I should just like to put it on the record, and I think other Senators would like to have it on the record, that we deplore the necessity for this retrospective legislation. The plain fact is that a mistake was made by the Government, a mistake was made by the parliamentary draftsman, a mistake was made by the members of the Oireachtas in 1926. We are now passing legislation to deem that mistake not to have been made. I think many of us are unhappy about that and I am sure many of us hope that it will seldom, if ever, be necessary to pass retrospective legislation of this kind again.

Might I add a word to the appeal which has been made to the Minister in considering this matter to give some relief in regard to the licence fee on cars, particularly in cases where the licence holder is already paying a licence fee on a radio in his own home? Where a person is already paying a licence fee in respect of a radio in his house, I feel he should be entitled to have the radio in his car at a reduced rate: if he had no other radio except the one in his car, that might not apply. It will be recognised that a car radio is of very limited benefit, inasmuch as the owner cannot expect to derive very much advantage from it because it is only at infrequent times that it can be of any use at all.

Arising out of Senator Stanford's remarks, if my memory serves me correctly, I doubt if there was a radio in any motor-car 30 years ago. It would be as well to have that clear. I have a fairly lengthy recollection and I never heard of a wireless set being installed in a car away back in 1926. As I say, it would be no harm to have that clarified, because it seems that we are not tuned-in properly to that particular year, a year in which the Government were not bothering about radios in cars.

While Senator O'Gorman may be right in saying that radio sets were not being installed in cars when the Act was passed in 1926, that still does not take away from the fact that this is retrospective legislation. So far as I have gathered, retrospective legislation seems very obnoxious to lawyers. There seems to be only one thing more obnoxious to legal gentlemen and that is ad hoc legislation. It can be argued, as it has been argued by Senator Stanford, that that is an undesirable thing and it is unfortunate that the Oireachtas has to mend its hand in this matter. It is, of course, a fact that it was not possible to foresee the development in this field of science and, even though it is retrospective legislation, I suppose that nothing can be done about it.

The point I really am interested in is that, since this has arisen by reason of a decision in a court case dealing with sets in cars, it should be put on record that it is the opinion of many members of this House, at any rate, that there should be some consideration in relation to the fee for car radio licences. I would suggest that, where people have sets in cars, in 99 cases out of 100 they also have a set in their homes. Are they then to be put in the position of having to pay two licence fees? It is hardly fair that they should be expected to pay the full car radio licence. Some people have more than one set in their dwelling houses and I think it would not be the intention of the Minister to charge for a licence on the two sets. I would like to hear from the Minister whether it would be intended to charge a licence fee on those two sets because the more likely thing would be that there would be extension speakers from a master set.

That being so, since the use of a car radio set is relatively limited and since those people who own sets in their homes are paying licence fees, the licence fee for car sets should be at a reduced fee.

I think that Senator Stanford over-simplified the position and I was rather surprised to find him making an attack upon Trinity College. I thought he was the last man who would do that. It is a great simplification of the position to say that, when the Wireless Telegraphy Act of 1926 was passed, there was a mistake made by the parliamentary draftsman and a mistake made by the members of the Oireachtas. That is not so. There is no legal decision to the effect that a mistake of any kind was made. This is a Bill to remove doubts, owing to an expression of opinion from the Bench, but not a legal decision and, therefore, it is not proved that any mistake was made by the draftsman of 1926.

With regard to the drafting of Bills in 1926, it should be remembered that the Government at that particular time founded the Parliament and founded the parliamentary draftsman's office, with a very distinguished draftsman, who was, unless I am greatly mistaken, a graduate of Professor Stanford's university and who was succeeded subsequently by another graduate of the same university. That office was founded, among other things that were founded at the time, by our first Government, and has worked with great success and great accuracy for successive Governments. It was one of the best offices that was founded by the State and has given very great satisfaction. It should not be said in a rather casual fashion, that the draftsman made a mistake and that the members of the Oireachtas made a mistake.

This is a Bill which is merely for the purpose of removing doubts. The draftsmanship of a great variety of measures is, in the nature of things, since we are all human, always liable to flaws. That is what judges are for in a way—to find flaws in draftsmen's work—but it could be said, I think, that the drafting of Bills here since 1922 has stood up well to a great variety of tests. It would not be correct to interpret the introduction of this measure as any criticism upon the draftsman of 1926 or any other draftsman, or any other Oireachtas, either.

With your permission, Sir, I shall reply to that on the Committee Stage.

First, on the question of the view expressed, quite properly, that this Bill has retrospective effect. Of course it has. That is regrettable, but I think it is necessary. As I said, the Bill is needed to remove doubts, not to change what has been declared to be the law, but to deal with doubts which have arisen and do exist. So far as the certainties are concerned, I think Senators should appreciate that, under Section 3 of the Wireless Telegraphy Act of 1926, the position is clearly stated that "no person shall keep or have in his possession anywhere in Saorstát Éireann or in any ship or aircraft to which this section applies any apparatus for wireless telegraphy." In other words, the law is clear; no one in this State may have in his possession anywhere a wireless set, unless he holds a valid licence from the Minister. The doubt created concerns the Minister's power to issue a licence to a person to have a radio set in a motor vehicle. If the Minister has no power, then a person who has such a wireless set, of course, perhaps unwittingly but nevertheless as a fact, offends against the provisions of Section 3 of the Act of 1926. Therefore, apart from anything else it is, of course, necessary to put that position in order, and while there is retrospection, it is, I think, in the interests of those who have had for a number of years car radios that the law should be put in order and that the position should be removed from doubt.

Senator Burke mentioned the question of portable radios. The position, as I understand it, in regard to that is that separate licences are not required for portable radios, if the owner already owns a licence for his premises. This is covered by Regulation 7 of the regulations made under the Wireless Telegraphy Act, and no additional licence is required. The same applies to a second or third radio set in a house mentioned by Senator O'Reilly— the one licence normally covers the sets in the house, except, of course, where there are separate families in the house.

Senator O'Gorman doubted whether there was such a thing as a car radio in 1927. The Senator's recollection may be accurate, but I do notice that, if no car radios existed at that time, the Minister of that date showed considerable foresight, because, in the regulations made under the Wireless Telegraphy Act, 1926, made in 1927, there is a provision that a separate ordinary licence shall be necessary to cover the private use of a wireless receiving set in a motor-car or other conveyance.

I do not think there are any other matters it is necessary to mention, except to repeat that the Bill is intended to remove doubts which have arisen from the recent decision, and I think it is necessary in the interests of those who have had radios in cars up to this, and, of course, in the interests of the administration by the Minister for Posts and Telegraphs of the Act itself. The other matters which have been mentioned by Senators are in no way affected by this Bill. The purpose of the Bill is to restore the position before the decision of the High Court. Representations which have been made concerning the amount of licence fees and various other matters arising in relation to the administration by the Minister of his powers under the Act are not in any way affected, but I can assure the House that the matters mentioned will be borne in mind.

Question put and agreed to.
Agreed to take remaining stages now.
Bill considered in Committee.
Section 1 agreed to.
Question proposed: "That Section 2 stand part of the Bill.

Mr. Douglas

I should like to ask the Minister if he would clarify the statement he made with regard to portable wireless sets, because I think that might cause a little bit of misunderstanding. Under Section 2, it is proposed that, for the purposes of Principal Act, a vehicle shall be deemed to be a place separate and distinct from the premises in which it is ordinarily kept. The Minister has stated that a portable wireless set is covered under regulations made under the original Act. It has been the practice in recent years, and is a growing one, for people to use portable wireless sets in their cars, rather than to have an actual car radio installed in the car. I am anxious to know will this Bill mean that a person who goes to the trouble of having a permanent set installed in his car will be liable to pay a wireless licence, while other people who merely use portable sets in their cars will be exempt. It seems to me that in many of our modern houses where garages are built as part of the house, it could be deemed that the car radio installed permanently in the car was normally kept in that particular place of residence and would be exempt from a wireless licence fee, in exactly the same way as the Minister has stated that a second or third wireless set inside the house does not require an additional wireless licence. We all know instances where the premises of a wireless dealer may have 200 or 300 sets, but only one licence is paid. I feel that from the statement made by the Minister a few minutes ago there is liable to be a misunderstanding as to what is a portable wireless set, and whether or not a portable wireless set normally used in a car, and taken out on picnics and so on, is liable to a separate additional licence. Possibly the Minister would clarify that.

I do not know whether, unwittingly, I used terms of art in relation to portable wireless sets as opposed to a radio in a car, but, whatever the legal position may be, I am told that, in relation to a portable wireless set which can be carried around by a person, no licence in fact is required or sought, the reason being that a portable radio normally is only occasionally used outside the premises in which it is ordinarily kept. A car radio is normally a permanent fixture in the car, and, in fact, though Senator Douglas will correct me on this if I am wrong, I am advised that it is not a very happy experience to try to use a portable radio in a car, because you will not hear much. In the case of a portable radio as such, the Minister does not seek any licence for it, on the basis that it is only occasionally used outside the house, perhaps on picnics or something of that kind, and if there is a current licence in respect of a radio in the house, that is taken as covering a portable radio.

Question put and agreed to.
Question proposed: "That Section 3 stand part of the Bill."

I should like to say that I am entirely satisfied with the Minister's explanation in his opening and subsequent remarks that we will not be injuring anyone by passing this piece of retrospective legislation; otherwise I am quite certain we would all be opposing it. With regard to Senator Hayes's remarks, I should like to say with great emphasis that I admire Senator Hayes's chivalry in defending those graduates of T.C.D.

They were friends of mine.

I hope that the graduates of T.C.D. will always have that chivalrous support and that they will continue to be his friends, both in the House and outside the House. But I would stand, if I wanted to delay the House, on the matter of a mistake. I hold with the learned judge of the High Court that the section was inadequately drafted. The mistake, as I see it, lay in not providing for the possibility that wireless sets could be used in cars; in other words, in appearing to limit the possibility of having a wireless set in vehicles to a ship or aircraft. Apparently they appear to limit it to that, and that, to my mind, was a mistake and faulty drafting. I do not want anyone for a moment to think that I am criticising the draftsman or the Legislature of 1926. We are all liable to make mistakes, and when a House makes a mistake of that kind, it should admit it, and say "we are sorry; we will put it right as well as we can".

I felt that it was consonant with the dignity of this House that someone should protest against retrospective legislation, and against rushed legislation. As Senator Douglas rightly said, there are many things we would like to have an opportunity of discussing on a Bill of this kind. There is much praise to be given to Radio Éireann, and some criticism may be made. We are being precluded from that by this Bill. It is necessary but we accept this Bill under protest. I hope that the time will never come in the Oireachtas that someone will have to bring in a piece of retrospective legislation and will say that, on such and such a day in the year 1956, no one seemed to mind about retrospective legislation. I am simply regarding this as a very exceptional case, and I think it is consonant with the dignity of this House that that should be said.

It has occurred to me, listening to the speeches that have been made, that there is some confusion of thought on this question of retrospective legislation. I would suggest that retrospective legislation is legislation which ex post facto affects the rights of parties.

If Senator Cox looks at the rubrics, he will find that this is described as retrospective.

I do not know what Senator Stanford means by the rubrics, because I am not looking at it. I am proceeding on the ordinary commonsense view, which is that retrospective legislation is something which retrospectively affects the rights of parties, or the rights of private property, or which imposes penalties which had not previously existed. I think there is quite a different kind of Bill and that is a declaratory Bill, which declares that the law is so and so, but does not affect rights already established, or impose fresh penalties, or, if it does appear to affect those rights, provides that existing rights will not be prejudiced. I am mentioning this merely to try to clear one's mind. I think that, in the Statute Book, there will already be found a number of Acts in which the Oireachtas has declared the law to be so and so and it has always taken care not to interfere with rights previously established.

I think it would be a bad thing that it should go out that, even on a special occasion, when people had made a protest, this House had passed a retrospective Bill. In my opinion, this Bill is not retrospective, but is a declaratory Bill.

Senator Stanford has referred to the lack of foresight displayed in the past. May I point out to this House that it is at present displaying a similar lack of foresight, because so far as I know it has made no provision in this Bill for wireless used in machines travelling through space, and I can quite foresee in some years to come some reflection being made on a lack of foresight by Senators passing this Bill, as was made by Senator Stanford in regard to previous legislation.

Senator Cox has, I think, made the position absolutely clear. Senator Stanford is not the only person here interested in keeping this Oireachtas right in matters of principle. If anybody ever wanted to pass an Act which would retrospectively interfere with somebody's rights in the future, this Bill will not be an example for him to work on.

This is quite a different thing from those other examples of retrospective legislation. We all remember the case where a decision was taken to prevent an appeal to the House of Lords. That established the first example, and, apart from my quip about Trinity College, I was quite serious in paying tribute to the draftsmen of that period. I think it is too facile to get up here in 1956 and to say airily that mistakes were made in 1926. That has not been proved and there is no legal decision to that effect. There has been no mistake made and there is no decision of any court enabling anybody to say that a mistake was made. If anybody wants to pass legislation of a retrospective nature, in the sense of interfering with anybody's rights, then this Bill cannot be taken as an example.

This Bill has done what I hoped it would do, to show that the House would never be a party to retrospective legislation and that this Bill was not an example for future retrospective legislation. I should like to point out that the Minister, in his opening remarks, referred to the Bill as retrospective and that is why I think I was justified in making my remarks. If a mistake is made, whether by graduates of my own university or some other university, or anybody else, I think it is better to say so and to put it right, if possible. I should like to say also that I agree with Senator Hayes in the tribute he has paid to the draftsmen of the previous legislation.

Question put and agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."

Mr. Douglas

I merely want to ask the Minister whether wireless sets used on railway trains are covered under the Bill. There is provision for the use of wireless on premises, aircraft and ships, but I believe there is a radio train running regularly, and I want to know whether it is covered?

I do not know. It may be that we would have to have another Bill to cover that.

Question put and agreed to.