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Seanad Éireann díospóireacht -
Wednesday, 11 Dec 1957

Vol. 48 No. 13

Prices Bill, 1957—Report and Final Stages.

I should like to ask leave to raise a matter before we come to consider the Report Stage of the Prices Bill. It is a matter I mentioned to the Chair before the House assembled to-day.

It is a matter of explanation.

It is a point of explanation. While we were debating this Bill the last evening reference was made to it in the Dáil—I refer to Volume 164, No. 10, columns 1733-1734, of the Official Dáil Debates—in the following terms:—

"General Mulcahy: In view of the fact that the Dáil will be reassembling to take an amendment from the Seanad probably next week, perhaps this debate could be adjourned and the debate continued when the Dáil assembles to take that amendment.

An Tánaiste: The Deputy is incorrect in that. The Bill has not been completed in the Seanad and the Report Stage has been fixed for next week.

General Mulcahy: But amendments will be coming to the Dáil.

Mr. MacEntee: The Opposition can carry on its own shoulders the responsibility for removing price control."

The point I wish to make is that the imputation that the responsibility for any gap between the ending of the Supplies and Services Bill and the coming into operation of this Prices Bill would be on the shoulders of the Seanad is not in accordance with the facts. Most Senators will remember what occurred, but I will quote for the benefit of those members of the House who may not remember. In Volume 48, No. 12, column 1036, of the Official Seanad Debates, Senator Hayes made the following offer, speaking of the Parliamentary Secretary on amendment No. 5:—

"Let him accept this amendment and the next amendment, No. 5, and we will give him all stages of the Bill to-night. It can be brought back to the Dáil then and I am sufficiently experienced in the Dáil to know that the Dáil can suspend its proceedings for half an hour, or whatever it is, to consider these amendments. They would require only about two minutes."

Several Senators supported that offer. I myself said in the following column, 1038:—

"I think the offer made by Senator Hayes is a good and reasonable one, and I would support it."

When it finally came to be decided as to whether we should take all stages that night and pass the Bill immediately back to the Dáil or delay it for another week, the Leas-Chathaoirleach said, at column 1053:—

"With regard to the next stage, what does the Parliamentary Secretary himself desire?"

The Parliamentary Secretary indicated, in column 1054—I may as well quote his words for fear of misquoting or misinterpreting them:—

"I want to meet the Seanad because it has been borne forcibly home to me that the Seanad does not want any of the stages of any Bill dealt with in a rushed, unsatisfactory and insufficient fashion. I am in agreement with the Seanad there, and it seems to me there is a feeling that there is not going to be a rampage of profiteering next month simply because this Bill will not be in force. For that reason, I am prepared to follow the ordinary course."

The only point I would wish to make now is that we put ourselves in the hands of the Parliamentary Secretary, and were prepared, if he had so desired it, to take all the stages the other evening, and, consequently, it is not in accordance with the facts to suggest that the Seanad, or any section of the Seanad, should be blamed, or have it said that it is on its shoulders if price control ceases.

The explanation has been noted.

There is something rather astonishing about the quotation that Senator Sheehy Skeffington has read out. I have not seen it yet but, if my recollection serves me right, the arrangement suggested by Senator Hayes was in relation to the first amendment incorporating the word "reasonably". It was only afterwards that the division was taken on a subsequent amendment. I do not see how, at that stage, there could have been the words ascribed to Senator Hayes that Senator Sheehy Skeffington has just read out.

Senator Sheehy Skeffington has quoted from the Official Report and that disposes of the matter.

There are three amendments to this Bill on Report Stage. Amendment No. 1 clearly hinges on amendments Nos. 2 and 3. Perhaps it would be advisable, if the House would agree, to recommit the Bill in respect of amendments Nos. 2 and 3 and, if the necessity arises, then amendment No. 1 could be moved on Report Stage.

Agreed.

Bill recommitted in respect of amendments Nos. 2 and 3.
The Seanad went into Committee accordingly.
Government amendment No. 2:—
In page 10, Section 24 (1), (d), line 35, to delete "reasonably" inserted before "require" in Committee by Seanad Éireann.

There appears to have been some belief amongst members of the Seanad that the omission of the word "reasonably" before "require" in paragraph (d) of this section was accidental. I want to assure the Seanad that that was not the case. In paragraph (d), and again in paragraph (e), the relevant provisions relate to entries in books, and so forth, and other information. Firms may from time to time claim privilege in respect of manufacturing formulae and similar information and it is important that they should continue to be in a position to claim privilege in respect of information of that kind, at least in cases where that claim is well founded and is, therefore, reasonable. That is the reason the word "reasonably" appears in these paragraphs.

On the other hand, it must be presumed that it is reasonable for an authorised officer, acting for the purpose of obtaining any information which the Minister may require to enable him to exercise his function under the Act, to require information regarding persons carrying on the activity which is under inquiry because otherwise he could not pursue the matter at all. It was, therefore, quite definitely desirable that the word "reasonably" should not appear in that paragraph and there was no question of any oversight or omission.

Where a claim to withhold information is reasonable, then the information can be withheld and in the respective paragraphs relating to certain types of information the word "reasonably" appears. An authorised officer seeking the type of information referred to in paragraph (d) must be presumed to be acting reasonably and, consequently, there is no need to make that provision there. It may be said that the insertion of the word makes no difference but, apart from any desire to do a clean job in legislation of this kind, it is clear that the insertion of the word unnecessarily, because it would make no practical difference in the operation of the section, would have the undesirable effect of delaying the enactment of the measure and would also bring Section 24 of this Bill out of line with the corresponding sections of other Acts. I do not know, again, if that would make any practical difference but it may be assumed that the authorised officers who will be operating under this Bill, to the extent that they ever have to operate, will be the same individuals as may be operating on behalf of the Minister for Industry and Commerce under other somewhat similar measures.

I would urge that the word be deleted. I want to assure the House that their amendment did not rectify an omission. It is considered preferable that the presumption that the officer is acting reasonably in requiring this information should be maintained and, if he is not entitled to get that information and entitled to get it without question, then he might as well not be acting at all because he can do nothing else to enforce his powers under the section.

As the original proposer of this amendment, I should like to remind the Seanad that this was not an amendment passed by a vote of the Seanad, but agreed to by the Parliamentary Secretary and agreed to unanimously by the Seanad. The Minister has told us that it must be presumed that officers seeking information of this kind will be acting reasonably.

No; that it is reasonable to seek this information in paragraph (d).

That in seeking such information they would be acting reasonably. I feel the Minister's case would be much stronger if the word "reasonably" were not included in paragraphs (a), (b) and (e), which paragraph (e) follows paragraph (d). In paragraph (a) we are told about all "reasonable" times. In paragraph (b) it is felt necessary that the inspector be allowed to require the person to give him "such information as he may reasonably require." It is felt necessary to say "as he may reasonably require". The Minister does not feel that in that case we may "presume" that he will ask only for information that he may reasonably require. He feels it absolutely necessary to specify here that he may require only such information as he may reasonably require. Similarly in paragraph (e), which comes after the paragraph we have amended, it says "require such person to give him any other information which he may reasonably require."

The submission I would make is that the very presence of the word "reasonably" in the other paragraphs, and the omission of it in one paragraph, leaves a very strong presumption that you are asking for wider powers under this paragraph than under the paragraphs, where you have felt it necessary to say that he shall ask for only what might be reasonably required. In other words, were it not found necessary in the other paragraphs to bind him by the word "reasonable" or "reasonably", the Minister's case might be stronger, but it has been felt necessary in relation to paragraphs (a), (b) and (e) to restrict the officer to requiring only information that may be reasonably sought and from that restriction he would be liberated in paragraph (d) by the omission of the word "reasonably".

I do not agree with that. I think the Senator may have misunderstood my point. Paragraph (a) does not matter. It is only a limitation on the times at which an inspector may seek entry into premises where any business is being carried out. Paragraphs (b) and (e) are the paragraphs the Senator has in mind. I think it is desirable in that case to provide that the proprietor of a business may withhold information where there is a good reason for doing so and where it is reasonable to expect him to withhold it. I give an illustration— books, documents or records related to a manufacturing process which the proprietor did not wish to have disclosed outside the limits of his own business organisation. It would be reasonable to withhold that information. Consequently, it is stipulated here that he can withhold the information because it is reasonable.

In paragraph (d) we are up against a different position. An inspector asks: "Who is carrying on the business?" It is not reasonable to withhold that information. It is reasonable for the inspector to seek it. It must be presumed to be reasonable to seek it. One cannot conceive circumstances in which that information, in the context of this section, could reasonably be withheld. If the inspector cannot get that information, he may as well go home because that is the point at which his inquiry must start. It is the presumption that it is reasonable that the inspector should get that information that I am anxious to protect. To insert "reasonably" there would suggest that there would be circumstances in which it would not be reasonable for the inspector to get that information.

It seems to me that the Minister is speaking as if the paragraph gives only the power to ask for information as to the identity——

And the persons employed.

In fact, it requires him to give "any information he may require"——

In regard to the persons carrying on the business.

But not merely in regard to their identity: whether their grandparents were 100 per cent. Aryan or good Nationalists or——

We must go back to the limiting words at the beginning of the section "...for the purpose of obtaining any information which the Minister may require for enabling him to exercise his functions under this Act, ..." That is the overriding condition. It must be information which has definite relevance to the Minister's function under the Act.

The paragraph as it is framed, while it may be aimed at finding out the identity of the persons, mentions one or two cases in which that may occur in practice, but it is not exclusive. The paragraph, as it is at present framed, does not refer to the identity of the persons but, in fact, the words are "...any information he may require in regard to the persons carrying on such activity..." It seems to me that the word "reasonably" is essential.

The inspector cannot ask him if he had backed a winner at Baldoyle on the previous Saturday. It must be information required by the Minister to enable him to exercise his functions under the Act. He would not need to know, for example, if the person had backed a winner at Baldoyle on the previous Saturday to enable him to exercise his functions under this Act. It is in that limited context that the inspectors may ask for information—the names of all the persons carrying on such activity or the persons employed in it. The reason why the word "reasonably" does not appear there is because it is desirable to have it presumed to be reasonable that the inspector should get that information and that there should be no question about it.

Let me refer to paragraph (b) where there is a similar presumption—that it is only information required by the Minister. Yet there it is felt necessary to say "...and to give him such information as he may reasonably require..." It is not felt that the wording of the earlier part of the section, which says it is for the purpose of "any information which the Minister may require," is protection enough in paragraph (e) but it is so thought in relation to paragraph (b).

There may be circumstances in which it would be reasonable to withhold that information. For instance, suppose there is a question of an Order fixing the price of bread and somebody charges more. He argues: "My bread is better than that made by others. It has ingredients that other bread has not." He can reasonably refuse to disclose those ingredients if he thinks he is giving away a trade secret. Such a situation is not likely to arise. I do not recollect that any such situation has ever arisen but I can see circumstances in which an inspector may ask for information of that kind which the business proprietor could in reason be entitled to withhold because of the possible effect it would have upon his business. If any question as to whether the proprietor was reasonably entitled to with hold the information should arise the matter could be contested and ultimately it would have to be settled in the court. The right to withhold it, in reason, should be presumed. That does not apply where the inspector starts off to inquire as to the identity of the persons carrying on the business. The inquiry should start there.

There is no reference to "identity" in the paragraph.

I take it that that is meant by "...any information he may require in regard to the persons carrying on such activity..."

Would it not be reasonable that information as to the persons included in the parenthesis in paragraph (d)—"(including, in particular, in the case of an unincorporated body of persons, information in regard to the membership thereof and of its committee of management or other controlling authority)"—should be disclosed to the person making inquiries?

That is my point.

Then why is the word "reasonably" not included?

I want it presumed to be reasonable that he would disclose it.

Surely it would be reasonable for him to disclose it, when required? Does the Minister follow the point I want to make?

I do. I am making the same point myself. If we insert "reasonably" we imply that there are circumstances in which he need not disclose that information. I do not want that implication. I want it presumed from the start that the inspector is reasonably entitled to the information.

This is the most interesting debate I have ever heard. The Minister has stated quite clearly that the insertion of "reasonably" here—which, by the way, was inserted unanimously in the Seanad and accepted by the Parliamentary Secretary—makes no practical difference except from the point of view of delay. If it makes no practical difference, I do not see why it should not be inserted.

I do not see anything in the Minister's argument that, under paragraph (d), he requires information about the personnel of an unincorporated body of persons. If that is what he wanted, he would have told the draftsman to say so in the paragraph. In fact, he has told the draftsman to say that the inspector can require that information. He may require information in regard to the persons carrying on such activity—"...(including, in particular,...)." The Minister knows better than I do, because he has had more experience of government, that that expression "...(including, in particular,...)" is put in there so as to leave room for other information to be given. Is that not correct? There is no doubt about it—"... (including, in particular,...)" without taking anything from the generality of the foregoing.

He wants information. If the Minister's point were correct, then this paragraph would be differently worded. It would require the person to give any information which may be required about certain things which would be defined. The paragraph is differently worded. It is worded that you have to give any information that may be required—not reasonably required but that may be required—about a lot of things but particularly including these. Surely there is no validity in the Minister's argument. If the Minister is right in saying there is no practical difference then the simplest thing to do would be to leave the word in and get on with the business.

That was not my point. My first point was to establish the contention that the omission of the word "reasonably" in this section was not accidental but was very deliberate. Does it make any difference if we put it in? I suppose that no case would arise in 100 years where it would make the slightest difference: nevertheless, I suggest it is a cleaner job to leave it out because of the considerations which I have mentioned. Certainly there is no point in putting in an unnecessary amendment which will make no practical difference, if that is the case made, merely if by doing so we will cause delay.

By "cleaner", I am afraid the Minister means swifter——

It is a better job.

Would the practical politician not be satisfied that the people here were unanimous in putting this in rather than stand on this matter which makes no practical difference except that it is not a cleaner but a swifter job?

It is a better drafting job.

Question put: "That the word proposed to be deleted stand."
The Committee divided: Tá, 26; Níl, 24.

  • Barry, Anthony.
  • Baxter, Patrick F.
  • Burke, Denis.
  • Carton, Victor.
  • Cole, John C.
  • Connor, Patrick.
  • Crowe, Patrick.
  • Davidson, Mary F.
  • Donegan, Patrick.
  • Fearon, William R.
  • Hayes, Michael.
  • L'Estrange, Gerald.
  • McGuire, Edward A.
  • Murphy, Dominick F.
  • O'Donovan, John.
  • O'Keeffe, James J.
  • O'Leary, Johnny.
  • O'Quigley, John B.
  • O'Sullivan, John L.
  • Prendergast, Micheál A.
  • Quinlan, Patrick M.
  • Roddy, Joseph.
  • Sheehy Skeffington, Owen L.
  • Sheridan, Joseph M.
  • Stanford, William B.
  • Tunney, James.

Níl

  • Ahern, Liam.
  • Brady, Seán.
  • Carter, Frank.
  • Colley, Harry.
  • Crowley, Tadhg.
  • Farnan, Robert P.
  • Fitzsimons, Patrick.
  • Hayes, Seán.
  • Hogan, Daniel.
  • Kissane, Éamon.
  • Lahiffe, Robert.
  • Lenihan, Brian.
  • Nic Phiarais, Máighréad M.
  • O'Callaghan, William.
  • Ó Donnabháin, Seán.
  • Ó Grádaigh, Seán.
  • Ó Maoláin, Tomás.
  • O'Reilly, Patrick.
  • Ó Siochfhradha, Pádraig.
  • O'Sullivan, Ted.
  • Ruane, Thomas.
  • Ryan, Eoin.
  • Teehan, Patrick J.
  • Walsh, Laurence J.
Tellers:—Tá: Senators Burke and L'E strange; Níl: Senators Carter and Seán Ó Donnabháin.
Question declared carried.
Government amendment No. 3:—
In page 10, Section 24, to delete sub-section (2), being the sub-section inserted in Committee by Seanad Éireann.

Perhaps some members of the Seanad need a little instruction upon a point of law upon which I have taken instruction myself in the course of the past week. Communications between a solicitor and client made in the course of, or for the purpose of, the professional employment of a solicitor are, with certain qualifications, protected by privilege not only from disclosures in a court of law but from any disclosure whatever. The privilege is that of the client and not of his legal adviser. Such communications are as privileged in the hands of the client as in the hands of his legal adviser. The section of this Bill to which the amendment was inserted by the Seanad is not intended to defeat or limit the existing privilege by changing the law so as to require production by the client or solicitor of any confidential communications which would carry that claim to privilege.

In paragraphs (b) and (e), a person is required to give information and documents reasonably required by an officer. It would not be reasonable for an officer to insist on disclosure of privileged communications. If it was intended to defeat a so well recognised provision of the law, express provisions would have to be made and accordingly no amendment of this Bill is needed to save it from invading the privilege mentioned therein. It is therefore clear that this amendment is not necessary for the purpose of protecting the right to privilege or the privilege attaching to communications between client and solicitor. It is also clear that the retention of the paragraph in the section would make the whole section inoperative. If a person interrogated by an advisory officer merely stated he was claiming privilege or refused to reply because by replying he might incriminate himself there is nothing the authorised officer could do except to bring legal proceedings in the High Court. I have already given my view that in the majority of cases there will be a ready and willing compliance with the law. In a minority of cases, the law will be complied with when the need to do so is brought to the attention of those people. Amongst a small minority, there will be a desire to evade the law and if members of that minority, who will deliberately and consciously try to evade the law, are given a loophole of this kind, it is to be assumed that they will avail of it. The only purpose in keeping this sub-section in the Bill would be to undermine and nearly destroy the powers of the authorised officers when dealing with those people who will seek means of evading the law. It is not necessary for protecting any right to privilege which now exists.

On Committee Stage last week, I gave some of the reasons why I thought this amendment should be incorporated in the section. Nothing that the Minister has now stated leads me to believe that it is not necessary. There are two points involved in this sub-section which has been inserted. First of all, there is the question of compelling people and it amounts to compelling them under threat of penalty to make statements and give evidence which would incriminate themselves. The second is the question of privilege between a person and his legal adviser.

On the earlier Bill to-day, the Office Premises Bill, the Minister adopted the attitude, in relation to the amendment put down by me, that the section which I was seeking to amend was common form in legislation of this kind. I accept that that is the position. I have looked up a number of statutes and find it is common form where it is sought to have inspectors and authorised officers carry out investigations. It is necessary to give them wide powers and the Oireachtas has recognised that in a great number of statutes which have been enacted over the years; but even though those powers are wide and necessary, the Oireachtas in its wisdom has always imposed certain limits and has said to the inspectors: "This far shalt thou go and no further". It always stopped at the point where it does not require anybody to give any information or make any statements which would tend to incriminate himself.

That saving sub-section in these various sections is merely an enactment of the common law and the common law is something which we have inherited here and which has been well established over the years. In particular, that aspect of the law applies to people about to be charged or suspected of being involved in criminal matters. The Parliamentary Secretary, when speaking here the other night, referred to the Factories Act, and said that in Section 24 (2), where inspectors were invested with these wide powers, there was the provision which is shown in the first part of the sub-section which has been inserted that no one shall be required, by virtue of paragraph (f) of this sub-section, to tender evidence which would incriminate himself.

In the Social Welfare Act of 1952, Section 49 (4) there is a similar power vested in authorised officers of the Minister for Social Welfare. It goes on, in sub-section (4), as follows:—

"...but no one shall be required under this section to answer any questions or to give any evidence tending to incriminate himself."

In the Holidays (Employees) Act of 1939, in Section 16 (1), paragraph (d), it is stated:—

"...to have been a worker or the employer of any worker and require such person to answer such questions (other than questions tending to incriminate such person)..."

The same applies to the Control of Prices Act, 1937, which is being repealed by this Bill. In that Act there were powers conferred upon inspectors but again, in that case, there was not, and is not, a clause equivalent to paragraph (e) in this sub-section. There is similar provision safeguarding people from the liability of incriminating themselves in the Insurance (Intermittent Employment) Act of 1942, Section 49.

I have gone through a number of statutes and I find that in all these cases where powers are given to inspectors they are cut down in the respect that persons are not obliged to incriminate themselves. This, of course, is a measure designed to protect the public from people who would fleece them by overcharging where prices have been fixed, but I would direct the attention of the House to the statement made by the Minister for Industry and Commerce on the Second Stage of this Bill in the Dáil, reported at column 125 of Volume 164 of the Official Report as follows:—

"I do not want to present this Bill to the House as a measure of major importance. It is not and I do not want to regard it as such."

Reported at column 117 of the same volume, the Minister said that the Government had contemplated allowing the Supplies and Services Act to lapse on the 31st of this month and not to introduce any legislation at all, but that they had decided against that course though it had certain attractions.

I think that view of the Minister on this Bill is relevant in so far as the Bill, not being a measure of major importance, is seeking powers which, in my view, are extraordinary powers and for which there is no precedent in any legislation enacted by the Oireachtas to date. I should like to qualify that by saying "legislation of a peacetime character", or legislation which does not deal with matters affecting the security of the State such as the Offences Against the State Acts or the Treason Act. But in legislation of this kind I think it would be very wrong of the House to agree to a provision of this kind which will establish a new situation where people will be obliged, under the penalty of imprisonment or fine not exceeding £100, to make statements which would tend to incriminate them.

Even erring business people have rights. They are citizens and I think it will be accepted by the House that it is the distinction more or less between the way of life under democratic régimes and under totalitarian régimes that people are to be compelled by law to make public confessions through which they can be brought before the courts and imprisoned or fined. That is the issue that is involved in the first part of this sub-section.

Let us consider the case of someone in a small town, some small shopkeeper who is trying to make what he regards as an honest penny. I do not want to be taken as holding any brief for overcharging. I am taking the case of a simple person in a small town in the country. An inspector comes in from the Department and announces himself as such and, if necessary, produces his authorisation. That situation immediately places the individual citizen at a great disadvantage. The citizen in many of these cases has very poor resources, perhaps mentally and possibly financially, to meet the charges that can be laid against him by the great machine of State.

In dealing with legislation of this kind we should have regard to the fact that in many of these charges you have the great machine of the State, with all its resources, being brought to bear upon some person who may, even with these powers, be found to be not guilty by the courts. I think that every fairness should be shown to ordinary citizens going about their way of life when it comes to questions of bringing them before the courts with the possible result of a heavy fine or a term of imprisonment. As far as my information and experience on the matter go, even when a person is brought before the courts under legislation of this kind and where he has been found to be quite guiltless of the charge of which he is accused, he always faces the odium in public eyes of having been charged with a breach of the prices regulations and also suffers the costs involved in that kind of litigation. As far as my knowledge goes, where the State takes prosecutions against a person like that, even where the person is found to be guiltless, the courts never award costs against the State.

The Minister has given the House the benefit of his information on the position with regard to privilege, which comprises the second leg of this section. I do not dissent from the general statement as to the legal position with regard to privilege, but I do dissent from the view expressed by the Minister that if this legislation is enacted, because it does not specifically take away the immunity which a person now enjoys in relation to confidential communications between him and his legal adviser, it necessarily follows it is not taken away by the Bill. There is a similar section in the Income Tax Act of 1918 where solicitors may be obliged by the Revenue Commissioners to disclose information which they have got in their character as legal advisers.

That section has been subject to constructive argument not in these courts but in courts where they have legislation of a similar kind and I would certainly dissent from the Minister's view to the extent that it is questionable whether or not this section does take away from people the rights which they already enjoy in regard to confidential communications.

If the Minister is satisfied that it does not interfere with the confidential communications passing between solicitors and clients, I think he ought to have no objection whatever to inserting it in the Bill. That would put them beyond any doubt and it is desirable, in view of the fact that legislation of this kind always is an invasion of the rights of the people, that long established rights and rights which have been upheld by the courts on grounds of public policy, should be specifically safeguarded in the Bill.

I think Senator O'Quigley's reference to totalitarian régimes is both unjustified and offensive. There is no one seeking in this section to take away anyone's rights. References to the Income Tax Act of 1918 are quite irrelevant. No one is proposing to invade in the slightest the privilege attached to communications between solicitor and client. I want to make it quite clear that this section does not mean, in the form in which it was originally framed in the Bill, any such invasion; and to insert an amendment of this kind in it would be stupid. One might as well insert a section saying that a person questioned by an authorised officer does not have to stand on his head when answering the questions.

With regard to the rest of the section, I think a complete misunderstanding exists about the provisions of the Bill. There is no analogy whatever between the functions of an authorised officer under this Bill and an inspector under the Factories Act—or the Office Premises Bill, for that matter. An inspector under these other measures acts in a quasi-judicial capacity. He can require the confirmation of any statement made in writing and he may be investigating an occurrence arising out of which court proceedings under other enactments may be taken, or a fatal case, where there certainly would be an inquiry by a coroner's court. The functions of the authorised officer under the Prices Bill are entirely different. Nothing happens at all, automatically, in consequence of a refusal by a person to answer the questions of an authorised officer.

Senator O'Quigley referred to other enactments where the same provisions were inserted relating to what he called the various sub-sections of this section. His amendment relates only to one paragraph, that is (e), and it is seeking to confuse the Seanad as to its significance to try to relate it to other provisions of the section. I have said already that we can have prices legislation which is no more than a demonstration, or we can have that which can be made effective. I do not intend that this Bill will ever be utilised except in circumstances which quite obviously require its utilisation; but if there is need to control the price of bread, butter, sugar or some other essential commodity, then we should be concerned to ensure that the control will be effective and that those who want to evade the control and charge excessive prices for those commodities should not be given, not a loophole but an avenue, to avoid prosecution as is proposed in this section.

I have to take the Senator's word for it that he is anxious to preserve price control, but the effect of his amendment would be to make price control ineffective, because it would give that excuse to any person who wanted to evade an investigation being carried out by an authorised officer, following the making of price control Orders, which would make that investigation ineffective.

As I pointed out already, the only people against whom the powers of an authorised officer will have to be used are those who are deliberately trying to evade their statutory obligations. I want to make it clear that I could not, under any circumstances, accept this amendment and if the Seanad insists on its insertion in the Bill I shall have to ask the Dáil to delete it.

There is really no necessity for the Minister to lose his temper about this. I do not see anything sinister at all in Section 24 or in this paragraph (e). There is nothing else in it but the ordinary desire of every Government Department, under every conceivable Minister, to make provision for everything. Look at this. The Minister can say, if he wishes, that I am not in favour of price control or that I am all for high prices. Of course I am not, any more than the Minister is. I grant that he is perfectly bona fide in this. However, I think the Seanad could do a very useful work in getting these Bills drafted in rather a different way.

In order to clear up this point about paragraph (e), could we not look at the whole of Section 24? It allows the authorised officer to do certain things. Now, the paragraph and the section are very intelligently drafted. Paragraph (a) gives the authorised officer power to enter he premises. That is granted at once. Paragraph (b) gives him power to compel the production of all kinds of books, records and documents. I grant that to the Minister, too. Paragraph (c) goes a step further and says that if, having looked at any books, records, or documents, he wants to make copies, he may make copies. Paragraph (d), about which we have just had some discussion, gives further power to the authorised officer—in pursuance of the objects of the Bill, of course—to get information about the personnel, about everybody working in the place, about people who may be directors, about anybody connected with the company or the firm, whether it is an incorporated body or not.

Paragraph (e) then comes along and it requires the person to give any other information which may reasonably be required. Why? What else is there to be got in the circumstances for these purposes—except an inspection of premises, of the books, the making of copies of anything in the records and full information as regards the personnel and those who control the firm and who work in it? What other conceivable information is there? This paragraph (e) has nothing sinister in it. It is not totalitarian. The Minister has no intention of walking upon anybody's face, I quite agree, but intelligent people, like, for example, the Incorporated Law Society, believe that this paragraph (e) might have a very wide effect and I must say that on reading it—and having read a fair amount of legislation—it seems to me an enormous power. I do not say it will be exercised, but what use is it or why should it be there at all? Surely the power given under paragraphs (a), (b), (c) and (d) is sufficient for the purpose of this Bill.

Instead of making the proviso which Senator O'Quigley has pointed out to me is to be found in other legislation, the proviso that a person need not incriminate himself or disclose matters arising between himself and his legal adviser, the Minister, if he wishes, can take this paragraph out. The Minister told us on a previous amendment that he was anxious to have clean and tidy drafting. I suggest it would be a great improvement to this section and would make for clean and tidy drafting, if he deleted paragraph (e), which cannot be of any use to him. Then, of course, that would involve the deletion of the amendment which we inserted.

Without losing one's temper and without charging the Minister with anything, the truth is that this kind of drafting—for which the Minister is not particularly responsible himself— ought to be stopped. While making provision, you add an omnibus section or paragraph which brings in everything. If you want an officer of the Department to go to Drumcondra by bus, you provide that he may travel by air, road, rail or sea and by any public conveyance, whether owned by the State or otherwise, as he may require. I suggest that paragraph (e) is not necessary. People who are not stupid—the Minister said that people who talk like this are stupid—and who are making a very good living in the law do not agree with the Minister as regards what (e) means. I know that, on legal matters, there is always room for two opinions. I have seen three and four opinions on the same question, but there is no use saying that people who object to this provision are stupid. They are not stupid, but they are not Ministers. That is the difficulty.

The Minister has all the powers he wants in paragraphs (a), (b), (c) and (d). If we stop putting in this omnibus provision to deal with things which may possibly arise, to use the Minister's own words, the Bill will be much cleaner and much tidier. I suggest the proper thing to do with paragraph (e) is to take it out, and then everything else follows.

Like Senator O'Quigley, I hold no brief for those who would profiteer or charge unduly high prices, but that is not the issue here. Last week, we decided it was right and proper that people being investigated under this section should not be obliged to incriminate themselves; in effect, they should not be obliged by statute to confess their sins to an inspector.

The Minister made the point that the authorised officers under this section are different from inspectors operating under the Factories Acts and other Acts. He said that he latter acted in a quasi-legal capacity—I think that was the expression he used. I believe he is wrong in that and somewhat off the point because, if one looks at the section as a whole, one finds what exactly an authorised officer is and what he will do. He will investigate something for the purpose of the Minister, the Minister exercising his function under the Act.

In line 16, there are the words: "to exercise his function under this Act." The investigating officer is collecting any information necessary for the Minister to exercise his function under the Act, and one of the functions of the Minister is to prosecute. He is in somewhat the same position, therefore, as a member of the Garda coming to someone who is believed to have committed an offence and asking questions. As the provision stands, we are providing in law that the person questioned must make open confession of any offence he may have committed. If that is to be the law, the possibility is that we may all find ourselves in an embarrassing position at some time. Fortunately, it is not the law at the moment.

Under this section, if this amendment is not accepted, it seems to me as a layman, that the position in law will be reversed. I can accept that the Minister would never wish to exercise his rights in that way and authorised officers would not attempt to do that; but, if that is so, then there can be no real objection to the amendment. I do not know about privilege. I am not expert in that, but I think the other part of the amendment is important and it should be incorporated in this measure.

The second sub-section of this Section 24 reads:—

"If any person obstructs or impedes an authorised officer in the exercise of his powers under sub-section (1) of this section or does not comply with a requirement of an authorised officer under the said sub-section (1), that person shall be guilty of an offence under this section."

Unless we amend the Bill, as was suggested by the Seanad, we shall create a new offence indictable under sub-section (2) of this section. Anyone refusing to give information to an authorised officer on the grounds, recognised as legitimate in common law, that to do so might incriminate himself, can be brought to court and charged under this provision, unless the amendment is accepted by the Government. If a court is asked to decide as between common law practice and a section in a new Act, it seems to me that the court, while recognising that an "offence" has been committed, will very probably dismiss the case under the Probation Act. The Minister is asking for powers that no court will uphold, because I doubt very much if our courts would in effect hold that common law practice can be violated by a simple section in a new Act.

I should be happier about this section as amended last time if the matter in brackets were left out, and if the section were to read: "no one shall be required by virtue of paragraph (e) of sub-section (1) of this section to answer any questions or give any evidence tending to incriminate himself or in respect of which he would be entitled to claim privilege in the High Court". The suggestion in the present wording is that the only grounds upon which he could claim privilege are grounds where the matter might be a "matter of confidence between him and his legal adviser." The brackets rather weaken the section, and the section would be even better if the matter in brackets were left out altogether. The first portion of the section is essential. If the Minister insists on asking for power to compel people to give information which might incriminate themselves, and his officers prosecute such people for refusing to give such information, I believe that the Minister's officers will be laughed out of court.

It seems to me this amendment raises a point of the highest constitutional importance. It has always been accepted in common law that nobody is bound to incriminate himself in a court of law, much less in reply to a police officer or an official of the Government. This Bill sets out a whole new apparatus for doing something with which we are all in agreement in a sense, namely, controlling prices. But this new apparatus is one of administration. A new type of official is given new powers to do things under this section, things which a judge could not do, things which a district justice could not do and things which a police officer could not do. That seems to me to offend against every instinct of anybody who has any feeling for the freedom of the individual. It is a perfect example of administrative law, without due safeguards for the citizen. It is the duty of the Seanad to put a curb on this sort of administrative law. In every country in the world, this type of administrative procedure sooner or later lapses into grave injustice and it is the duty of the Legislature to prevent sections of this kind becoming a blot on our Statute Book.

The Minister said he was offended by the reference to totalitarianism. I hope the Minister will forgive me when I say I was offended by his insinuation in relation to the price of bread and butter. The Minister held up the Bill for six months and allowed the price of bread and butter to go up.

There would be no power to control it.

That comes well from the Minister who allowed the price of bread to go up by 60 per cent. in less than six months. By saving a subsidy of 3d. on the loaf, he allowed the price of the loaf to go up by 5d. It comes well from a Minister who took the subsidy of 5d. per lb. off butter and allowed the price of butter to go up by 7d. per lb.

We might as well fight the civil war all over again.

The Minister admits my point. It seems to have got somewhere, anyway.

I appeal to Senators not to bring past events into this discussion. We have sufficient grounds to consider whether or not this section is in violation of any of the accepted rights of citizens, without introducing extraneous matter. I am completely independent. I represent a vocational interest. The case made by Senator O'Brien cannot, I think, be questioned. He put the issue clearly and forcibly. We should accept the suggestion made by Senator Hayes to delete the sub-section altogether. Sufficient powers are given in the first four clauses for any officer to conduct a reasonable investigation.

I hope I have not interpreted Senator O'Donovan aright in believing that, in revenge for the Budget or in revenge for the election or something else, they are going to insert some damn amendment in this Bill just to hold it up, because that seems to be the implication of his remarks.

The Minister introduced the hold-up.

I was appalled by Senator O'Brien's remarks. For a man of his status in the community and general erudition to fall into such obvious errors in the interpretation of this sub-section is really deplorable. He must know—and everybody in the House, I am sure, will understand— that a fundamental common law right cannot be taken away by implication. The privilege attaching to the communications that pass between a client and his solicitor cannot be removed except by specific provision to that effect.

There is doubt there.

I do not know who holds the doubt. You can take it from me that that is an authoritative opinion. What we are concerned with is a provision which says that a person need not incriminate himself. No doubt it is desirable in the instance—I am dealing with the only possible case that could arise—of somebody selling stolen property at an excessive price who refuses to disclose the name of the thief. That is how the question of incriminating himself arises in this connection. I concede that an entirely different situaton arises in connection with certain other amendments where there was good reason to impose that limitation on the powers of inspectors operating under these other enactments, but it does not arise here. Let us strip this discussion of the debating society atmosphere and get down to realities. Everybody knows the Supplies and Services Act will lapse on the 31st December and there is nothing we can do about it now. I do not question the right of the Seanad to insert in this Bill amendments that are justifiable but to insert unnecessary or trivial amendments just for the sake of holding it up——

That is not being done.

All right. I withdraw that. I will not say for the sake of holding it up but inserting unnecessary amendments which will have the effect of holding it up, preventing the completion of this measure and the substitution of other powers of price control in place of those that are lapsing on 31st December.

One amendment has been passed. There is nothing we can do about that now. We had a most futile argument here and the net result was that it makes not the slightest difference. There should have been a greater sense of responsibility, a disposition not to make an unnecessary change knowing what the effect of that change would be. We now have another amendment, which is perhaps of a more serious character, because the effect of inserting this amendment in the Bill is to make ineffective the powers of the authorised officer.

I again urge Senator to face this thing realistically. If circumstances arise under which the Minister for Industry and Commerce has to use his power to make an Order fixing a maximum price for bread, butter or some of other essential commodities in respect of which he can act without a preliminary investigation, it is to be assumed that the great majority of traders will obey the law. It is to be assumed also that some will try to evade it and it is in relation to that minority that we must have whatever powers the inpectors enforcing the Order may require. If you put in a section here saying that anybody can refuse to give information to an inspector and refuse to answer because he might incriminate himself, what can the inspector do about it?

He can go to the High Court.

Start proceedings in the High Court which will go on for months.

Is it a greater evil to delay——

Which is the greater evil? When, in the view of the Government of the day, the necessity arises to make an Order fixing the maximum price for bread, whose aside are you on—the side of those overcharging for this commodity or——

If that question is addressed to me, may I say I am on the side of the ordinary citizen against any Government or Administration? I think it is a lesser evil to delay this legislation than that any ordinary man in the street should be unjustly convicted.

We are not talking about any ordinary man in the street. We are talking about a man selling goods in respect of which a Price Order has been made and who is suspected of breaking that price Order and overcharging for the goods.

Does the Minister presuppose that the ordinary man in the street is a scoundrel?

It is my experience— and I think I have more experience than most in this connection—that most Orders made by a Government, even Orders which are difficult to observe, Orders made in exceptional times, are nevertheless respected and obeyed by the great majority of citizens and that the powers of enforcement are never called upon in relation to the great majority. But there is a minority who will seek to evade these obligations, to evade them for their own profit. It is in relation to that minority that some powers of enforcement must be required. We can express a hope that people will obey this Order or else we can give some authorised officer the powers necessary to see that its requirements are obeyed. Which do you want? My argument is that putting in the first part of this amendment would just open an avenue by which the individual who is, in fact, breaking the law in that regard can nevertheless hope to evade the penalty. The second part of the amendment is not necessary at all.

I confess I thought for a period whether we could, in present circumstances, do without price control legislation altogether. I decided that circumstances could arise in which we needed it and if those circumstances did arise the situation must be dealt with effectively. Which do you want to accept, legislation to give effect to Senator O'Brien's theoretical point of view or effective legislation based on the practical point of view I am putting before you? If you are going to have price control Orders and those Orders enforced by inspectors, inspectors must have these minimum powers which will enable them to function properly. I expected Professor O'Brien to be on that side, but there are quite a few people whom I am astonished to see in his company on this issue.

Dr. Sheehy Skeffington rose.

The Minister has concluded the debate, unless the Senator wants to ask a question.

I should like to ask the Minister what would be his reply to the point well made by Senator O'Quigley that such a safeguarding clause is in fact incorporated in several other Acts.

Yes, and, as he pointed out, there is an Act which confers this right of privilege in respect of communications between a solicitor and his client, and each such provision has to be related to the Act. In this Act the circumstances under which that safeguard exists do not arise, but, by giving safeguards, you open the way to evasion as well.

Does the Minister recognise—I am sure he does —that when we pass an amendment here which will delay the Act, the delay is not altogether our fault, because the Bill came before us only when the Dáil was about to rise?

But the Seanad could have met earlier, too. However, I do not want to go into that now.

Question put: "That the sub-section proposed to be deleted stand part of the Bill."
The Committee divided: Tá, 27; Níl, 24.

  • Barry, Anthony.
  • Baxter, Patrick F.
  • Burke, Denis.
  • Carton, Victor.
  • Cole, John C.
  • Connor, Patrick.
  • Crowe, Patrick.
  • Davidson, Mary F.
  • Donegan, Patrick.
  • Fearon, William R.
  • Hayes, Michael.
  • L'Estrange, Gerald.
  • McGuire, Edward A.
  • Murphy, Dominick F.
  • O'Brien, George A.T.
  • O'Donovan, John.
  • O'Keeffe, James J.
  • O'Leary, Johnny.
  • O'Quigley, John B.
  • O'Sullivan, John L.
  • Prendergast, Micheál A.
  • Quinlan, Patrick M.
  • Roddy, Joseph.
  • Sheehy, Skeffington, Owen L.
  • Sheridan, Joseph M.
  • Stanford, William B.
  • Tunney, James.

Níl

  • Ahern, Liam.
  • Brady, Seán.
  • Carter, Frank.
  • Colley, Harry.
  • Crowley, Tadhg.
  • Farnan, Robert P.
  • Fitzsimons, Patrick.
  • Hayes, Seán.
  • Hogan, Daniel.
  • Kissane, Éamon.
  • Lahiffe, Robert.
  • Lenihan, Brian.
  • Nic Phiarais, Máighréad M.
  • O'Callaghan, William.
  • Ó Donnabháin, Seán.
  • Ó Grádaigh, Seán.
  • Ó Maoláin, Tomás.
  • O'Reilly, Patrick.
  • Ó Siochfhradha, Pádraig.
  • O'Sullivan, Ted.
  • Ruane, Thomas.
  • Ryan, Eoin.
  • Teehan, Patrick J.
  • Walsh, Laurence J.
Tellers:—Tá: Senators Burke and L'Estrange; Níl: Senators Carter and Seán Ó Donnabháin.
Question declared carried.
Bill, as amended, reported.
Government amendment No. 1:—
In page 4, Section 1 (2), lines 26 and 27, to delete "the 1st day of January, 1958" and substitute "such day as the Minister appoints by Order."
Amendment agreed to.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."

The Bill contained certain amendments inserted by the Seanad. In view of what the Minister has said, I should like to say that those who supported these amendments made no effort whatever to delay the Bill. Perhaps I would be allowed to point out that, speaking here on the 5th December, as reported at column 1036, I said, alluding to the first of the two amendments carried in the Seanad:—

"In any event, in the situation in which the Parliamentary Secretary finds himself now, I will make him this offer. Let him accept this amendment and the next amendment, No. 5, and we will give him all stages of the Bill to-night. It can be brought back to the Dáil then and I am sufficiently experienced in the Dáil to know that the Dáil can suspend its proceedings for half an hour, or whatever it is, to consider these amendments."

I made him an offer to finish all stages of the Bill last week while the Dáil was still in session.

I think it is necessary to say this because certain suggestions have been made—indeed the Minister has made two suggestions. One is that the people who supported the amendments now in the Bill are against price control and want to help the minority of people who would object to regulations made under the Bill. The other suggestion is that we deliberately delayed the Bill. Neither suggestion has any truth or foundation.

That is the very portion of the Report of the Seanad Debates which I challenged earlier. My recollection is pretty good and I do not remember Senator Hayes at that particular stage referring to two amendments. My impression was that the whole thing was in regard to the first amendment for the insertion of the word "reasonably".

He mentioned both.

Not until afterwards. I do not remember his mentioning both at that particular stage. If you have a look at the subsequent part of the report, you will find there is no mention of it either. A division was challenged and taken on the second amendment. There is no mention of any arrangement for No. 5.

I do not want to challenge Senator Mullins——

An Leas-Chathaoirleach

The question is: "That the Bill do now pass".

The Official Report has been challenged, Sir. If Senator Mullins reads the whole of this report he will find it to have no meaning other than an allusion to the two amendments. I did not put a pen or pencil to any part of the report. This is exactly as the reporter took it with no emendation of any kind from me. I know sufficient about parliamentary procedure and I did intend to facilitate the Parliamentary Secretary, by allowing him go back to the Dáil and, if he could get accommodation from the Dáil, have his amendments either passed or rejected. My own recollection is that I made reference to the two amendments because I was interested in both of them. If the Senator would read what I have read, I do not think anybody could imagine or insert it.

The whole discussion at that point was about the first amendment. We had not come to the second.

An Leas-Chathaoirleach

It is hardly an issue at this stage of the Bill.

I should like to speak on this Bill just very briefly and to express the hope that the Minister will use the powers that are being given to him under Part II—power to set up prices advisory committees in relation to various commodities. It has been suggested that it would be a good thing if this Bill could be enacted quickly. I should like to hope that the Minister, once he has got the power, will in fact use it quickly. It would be a pity if we were to be told "I must have these powers quickly", and if we then found that six months or a year passed and the Minister did not, in fact, use the powers to set up these prices advisory committees which he is entitled to do under the terms of the Act now passing.

The prices advisory committees to be set up under Part II will confirm the Minister's powers and the powers of the Fair Trade Commission to inquire into restrictive practices, price rings and so on. I should like to express the hope that, this time, the Minister will act on the recommendations of the Fair Trade Commission when they report to him that there is price rigging, that prices are artificially high, that certain commodities cannot be bought at competitive prices, and so on. It is in the spirit of that hope, that not merely will this Act not remain "on the shelf", as the Minister suggested it might in the Dáil, but that it will actually be implemented, that I make these final remarks on the Bill as it passes.

Arising out of the point made by Senator Hayes, I think I should make it clear that the Parliamentary Secretary, who was in charge of the Bill during the Committee Stage in the Seanad, did not understand Senator Hayes to be making an offer in relation to any other amendment except the first amendment which was accepted by the Seanad. Anybody who reads the report of the remarks in the Official Debate attributed to the Parliamentary Secretary will see it is quite clear what his understanding of the position was.

As far as I am personally concerned, although I consider the amendment trivial, stupid and unnecessary, I was prepared to accept it rather than hold up the Bill. If that amendment alone had come from the Seanad, the Bill would now be law. But when there was a second amendment, which I thought was still more stupid, adopted by the Seanad, I could not go that far.

My objection to the second amendment is that it does, in effect, mean that the powers of the authorised officers, officials of the Department of Industry and Commerce, who will be responsible for the operation of the Bill, are considerably undermined and made almost ineffective. Senators who consider that that amendment was justified can, of course, give their reasons for it. I do not propose to try to interpret the motives of those Senators. I suggest that some of those who voted for the amendment were animated by no higher ambition than to appear to score a victory over the Government.

With regard to the points raised by Senator Sheehy Skeffington, I want to draw a distinction between the possession of powers and the use of powers. The fact that the Government has power to prevent undesirable developments often means they never occur. I should hope that after the enactment of this measure, when the more unreasonable of these amendments has been eradicated from it, it will not be necessary to resort to it with any great frequency. Indeed, my view is that it is desirable to keep official control of prices to a minimum and to exercise it only when there is clear and established justification for it. I am not one of those who argue in favour of an official control of prices to prevent a rise in the cost of living when economic forces are pushing them up. It is rather surprising that those who would argue along those lines were amongst those who now appear to be least concerned about the speedy enactment of this measure.

With regard to Senator Sheehy Skeffington's remark that I should undertake always to act upon the report of the Fair Trade Commission, I give no such undertaking. I refuse to part to anybody with the right to exercise my own intelligence.

I merely suggested that I hoped the Minister would do so.

Bill, as amended, received for final consideration and passed.
Barr
Roinn