Before we take up consideration of Committee Stage of this Bill, I should like to indicate that I have ruled amendment No. 26 in the name of Senator FitzGerald out of order as it involves a potential charge on the people. The Senator has been notified accordingly.
Imposition of Duties (Dumping and Subsidies) Bill, 1967: Committee Stage.
I am afraid the Minister has been unexpectedly delayed and he will not be here for a little while. With the permission of the House, it might be advisable to suspend business until 4 o'clock.
This is an opportunity to take a motion considering the number of them on the Order Paper.
The Senator should not be so foolish as to make foolish interjections like that.
It is a fair point all the same.
Does the House agree to suspend business until 4 o'clock? I take it that the House is so agreed?
I should like to protest that we were not notified of this when we were discussing taking motions because had the House known that we would be sitting here with nothing to do we would have taken a very different view on the question of the motions. We have been misled on this point. There was no indication given that we would be adjourning.
I should like to suggest that the whole question of when motions should be taken should be referred to the Committee on Procedure and Privileges. I personally feel that the system is most unsatisfactory and I would urge that the House should support this view and that it should be seriously considered.
The Order of Business has been decided for today and the matter before the House now is that business be suspended until 4 o'clock. Is that agreed?
Business suspended at 3.23 p.m. and resumed at 4 p.m.
I indicated before business was suspended that amendment No. 26 in the name of Senator G. FitzGerald is out of order as it involves a potential charge on the people. The Senator has been notified.
Before we commence may I express my apology to the House for having delayed it and occasioned the suspension of business. It was due to circumstances which I could not control and I want to express my apology to the House.
The Minister's statement is approved.
I move amendment No. 1.
In subsection (1), line 23, to delete "territory, area and place" and substitute "a State, or dependent territory of a State, or a place in such a State or dependent territory".
This is just a suggested tidying up amendment. The phraseology of this particular definition at the moment is a little peculiar, as I suggested on the Second Stage. "Country includes territory, area and place." It is not entirely clear what the purport of this is. If it is intended that it should cover dumping from not just a country, a State, but from some part of that State it would be better to be more explicit to that effect. The amendment which I propose would, I think, be more explicit as it defines country as a State or dependent territory of a State. I think everywhere in the world it is either a State or a dependent territory of a State or a place in such a State or dependent territory leaving it open for dumping to be dealt with in relation to a particular place within the State or dependent territory without necessarily applying any regulations in question to all places in that State or dependent territory should the Government decide not to do so. The purpose of the word "place" in the present amendment is to leave that open but the wording is very loose. When it says" country includes territory, area and place" it is not clear whether that means "includes as well as State" or whether the word "includes" is meant to say that it must be one or other of these three things. If the latter which is, I think, the normal usage in a Bill, then, in fact, oddly enough "country" includes everything which we normally call a country, that is, a State.
It appears that country is confined to a territory, an area or place within a State. It seems to be very loosely drafted. I would submit that my drafting is a little tighter but, at the same time, it gives the latitude which I think the Minister desires to deal with dumping from one particular part of a country without necessarily controlling imports from all other parts, if dumping derives from a particular factory in a particular area. If he wants liberty to narrow the boundary we can leave it open.
I am inclined to agree with Senator FitzGerald. It struck me that area might need some definition. I am not sure what "area" in this context is supposed to mean. Indeed, for me, Senator FitzGerald's wording certainly covers any possible place from which goods could come.
On this planet.
On this planet. Perhaps, the Minister is thinking of the moon or somewhere like that.
I claim to be reasonably far-seeing but not as far-seeing as Senator Sheldon suggests. It is true that one objective was that mentioned by Senator FitzGerald but there is more involved in this. It is a question of the different kinds of political entity in the world. The Senator suggests "a State, or dependent territory of a State, or a place in such a State, or dependent territory," but there are one or two areas in the world which might not be included in that definition.
Would the Minister give examples? He surprises me.
I would direct the Senator's direction to East Germany.
It is a State.
That is an arguable point depending on one's political stance.
Its legitimacy does not effect its being a State.
It does. The definition in the Bill covers a country which may geographically include a territory, an area or a place but it need not be such legally.
You mean it could include a State?
Yes, it could. The advice available to me is that the definition, as drafted, is satisfactory and meets more satisfactorily the point we are trying to cover than the amendment would.
I am a little taken aback by the Minister's point. While it may be held that East Germany is not a State, if it is not it is a dependent territory of others. There are Stateless people but there is no such thing as a stateless State. This is not one of the concepts of international law as far as I am aware. I am prepared to concede that one can argue that East Germany though not being a State is an integral part of West Germany over which in a sense West Germany is exercising authority. You simply cannot have no allegiance whatever. It exists; it is there as a fact. It either belongs to itself or to somebody else and we cannot wish it out of the existence. I am unconvinced by the Minister's suggestion and am taken aback by it. Though I can understand from his holding that viewpoint that my amendment would appear restrictive, I am not sure that the Minister's version is adequate. There is a danger that the word "includes" could be read in the narrow sense in which it sometimes is in legal documents of this kind to mean that the particular things mentioned represent the sum total of what is intended or implied. The word "includes" can be read to mean "comprises" rather than "includes", as well as other unlike things. I am not sufficiently a lawyer to be dogmatic on the subject but I would be concerned about the actual definition from the Minister's point of view.
Even leaving that to one side, it is not clear what is meant by "area" and "place". How are these defined? We know what a State means although we seem to disagree on it.
That is the point.
A State is a legal entity and its existence or otherwise can be established in some legal way. Any given country may not recognise certain places as States. How is "area" and how is "place" defined? Who says what is an "area" and what is a "place"? How big does a place have to be before is becomes an area? These are terms which have no legal validity and it seems surprising to see them turning up in an Act of this kind. Even if the Minister's point about East Germany has more validity than appears to be at first sight, I would not think that his way of setting the trend necessarily adequately covers the point. Perhaps this is something we could both have a look at between now and Report Stage?
I am willing to have another look at it all right but the information I have suggests to me that the Bill, as drafted, covers everything we want to cover. After all, we do not want, when we are dealing with an urgent case of dumping, to get ourselves involved politically in an argument about what is or what is not a State. Where a territory, an area or a place, even if not specifically defined here, refers to something which exists and which will be shown to exist, it would, I think, avoid any irrelevant argument. I am willing to have another look at this before Report Stage, but I do not think we will come up with any better solution.
The Chair suggests that amendments Nos. 2, 6, 7 and 8 be taken together.
I move amendment No. 2:
In subsection (1), to delete all words from and including "but" in page 2, line 38, down to and including "accordingly" in page 3, line 2.
This is an issue which was raised on Second Stage. The Minister in replying on Second Stage dealt briefly with the point I made. I find the points in this Bill where I have proposed amendments to it disturbing. The organisation of this Commission is so devised as to suggest that instead of having a Civil Service or administration in this country to administer our affairs we have independent empires so sensitive to protocol as to debar a competent legislature from classifying a set of values.
I do not think this is the case, but it is the impression given. Not alone must there be separate representatives on the Commission but we will soon be in the position that if a matter arises in relation to a product which is defined—as far as I am aware by a rather arbitrary code—as agriculture, the Commission may not consider this unless somebody from the Department of Agriculture is in the chair. They are so distrustful of each other that not alone must they be represented on something which concerns them but on the basis of equality as a member of the Commission, which seems to me unnecessary for the purposes of carrying out the work of the Commission which will mostly be concerned with industrial goods anyway. Beyond that, the Department of Agriculture will not permit a matter to be decided in regard to agriculture—matters many of which have undergone agricultural processes and should in the ordinary view of things be within the competence of the Department of Industry and Commerce—unless their man was in the chair. If they want to play games privately behind closed doors, as to who is in the chair, if it does not take too much time they are welcome to do it.
Why the legislation of this country should be cluttered up with this kind of local protocol between Departments I do not understand. The whole procedure is objectionable. I would accept it if we had a situation in which certain products which seem to a large extent industrial are treated as agricultural because they are made out of agricultural products while others are not so related. There is an arbitrary line drawn between the two. Where agricultural products are produced from agriculture it is reasonable, I suppose, that the Department of Agri culture should be represented on this Commission, that they should have a representative on it. I do not see the need for two representatives or the need for switching the chairmanship.
The Minister told us that these representatives will not, in fact, be civil servants. He does not believe they should be and there are good reasons why they should not in this instance. The Commission should be seen to be independent, without Government pressure. The Minister is quite right in defending the view that the people concerned should not be civil servants. It is not even a question of Civil Service protocol but that of seeing outside people appointed in relation to Government Departments. The Department of Agriculture is not prepared to allow something to be decided if the man in the chair is appointed by other sections. If there is an agricultural matter to be settled, the man in the chair has to be the man the Minister for Agriculture appointed. This is nonsense and we ought to show our approval to this kind of attitude by rejecting the inclusion of these provisions in this Bill.
This arises out of a long-standing conflict on this issue between those two Departments. It arises, to my mind, from the Department of Agriculture; its antiquity is so great that it goes back before the foundation of the State and it has never accepted the existence of other Departments of State. In this particular instance even when the products of the Department concerned have undergone processing, they may still be classified as agricultural and notwithstanding the industrial processing involved, rather than the raw materials involved, the Department insist it must deal with it. This creates problems in areas such as flourmilling, for example, an entity which is taken from agriculture, and is handled by the Department of Agriculture for most purposes even though it is industrial activity. Just because the flourmillers are unfortunate enough to be handling something which is agricultural in origin they are treating it as under the Department of Agriculture. This is undesirable from the way it is carried on, but when it is carried to this point of absurdity we should draw the line.
The point Senator FitzGerald made that it is anticipated that the members of this Commission will not be civil servants but will be outside independent members upsets the arguments which he made earlier that this was due to undue concern with protocol. In fact, there is a much more rational basis for it than that. First of all, as Senator FitzGerald said, the Department of Agriculture goes back a long time, but the structure of the Government and the historical development of the Government is such that it leads to this kind of arrangement when we are dealing with the whole range of goods, agricultural or industrial. We must remember that the largest industry in this country is agriculture and that the Minister for Agriculture is responsible for that, and that the problems of dumping of agricultural products are different from and more difficult than those of the dumping of manufactured goods, and the experience in other countries, too, has shown that this is so. The most difficult problems arising in connection with dumping almost invariably arise in connection with agricultural goods.
This being so, it seems to me that there is a very good reason for the structure of the Commission as proposed in the Bill, and its provisions, I think, should ensure that where the Commission is dealing with cases of dumping or alleged dumping of agricultural goods the necessary knowledge and expertise to examine such an allegation and to decide upon it will be brought to bear by reason of the structure proposed in this Bill.
The Minister has made a fair case that agricultural interests should, indeed, be represented on the Commission, but I would have thought that where we find the Minister for Industry and Commerce being given the function of dealing with dumping the procedure should be that in appointing the members of the Commission he should consult with the Minister for Agriculture and would be guided by him in the nomination of one or two of the people concerned. This would be the normal thing to do. This, in fact, is done in other cases of similar appointments and in some cases this may be required by law, that consultation takes place. In relation to the appointment of directors of the air companies, I recollect that there is provision requiring consultation by a Minister with the Minister of another Department which has an interest in it. This seems a reasonable proposition. Whether it is necessary to put it into legislative form or leave it to the good sense of the Ministers who are supposed to work together in the Government with Cabinet responsibility is another point. If it was thought desirable to put it into legislation I would have no objection at all. But I do not see why an appointment should be made separately by a Minister who is not the Minister responsible for action against dumping, or why the Minister for Industry and Commerce cannot consult the Minister for Agriculture instead of providing that the appointment should be made by the Minister for Agriculture.
The other matter, in respect of which the Minister has made no case whatever, is in regard to the chairmanship of the commission. I cannot see in what way the work of the commission will be facilitated by a swift change of chairs. If it is visualised that this commission will have five members, that a casting vote would not normally arise; and it is suggested that the chairman is going to be ruling things out of order, using his power as chairman in some way as between two Departments and their interests, I think this is nonsense. No matter who sits in the chair the Minister for Industry and Commerce is responsible primarily for dumping and it is for the Minister for Industry and Commerce to deal with it and to appoint the relevant members after consultation with the Minister for Agriculture in one or two cases, and his nominee should be the chairman. Nothing that the Minister has said has offered any reason for this switching of the chairmanship, and we remain in the position that the only reason one can visualise for this extraordinary procedure is that the Department of Agriculture for some reason of its own is insisting on it, and if we cannot think that they have a good reason we are entitled to wonder what the bad reason may be.
The only thing I am happy about is that Senator FitzGerald is not Minister for Agriculture or Minister for Industry and Commerce. He seems to be slightly confused as to the effective knowledge that would be required in certain instances. He mentioned the case of flourmilling, which he looks upon as an industrial matter, and, of course, that is so, in that it is an industry changing wheat into flour, but surely from the point of view of dumping it is the wheat that matters, not the milling of it. I think it is very proper that agriculture should be intimately concerned, and in this case the over-riding point is the effect which such dumping would have in regard to our own home flour. It is not the milling of wheat into flour with which, I hope, we would be most concerned, but the effect on the farming community which is growing wheat. I am entirely on the side of the Minister in this Bill, and I welcome the way agriculture has been brought into this to keep a special eye where any case comes up that would have an agricultural bias. I cannot see the validity of Senator FitzGerald's argument that it ought to be for the Minister for Industry and Commerce and that in certain circumstances he would have to consult his colleague. I think it is highly important from the agricultural point of view that where agriculture is concerned it is the Minister for Agriculture who carries the weight.
I may have misled the Senator, perhaps, by taking a particular example, using the flourmilling industry as an illustration of the way in which responsibilities are divided between two Departments, as a historical example of the division of responsibilities. I did not intend to convey that in cases like that the agricultural interest should not be primary. Of course, it would be. The added value by the milling is small in relation to the basic value of the wheat. That I entirely appreciate, but I am not clear how what is being done here helps, because, first of all, in what way would the interests of the farmers be better protected than if the Minister for Industry and Commerce appointed in the ordinary way after consultation with the Minister for Agriculture, if the Minister for Agriculture appointed the representative. Is it suggested that the Ministers would be so unreasonable and so incapable of working with each other that the Minister for Industry and Commerce would ignore the suggestions of the Minister for Agriculture in appointing people nominated to represent agriculture? I do not believe this for a moment. In any event, in what way does the switching of the chairmanship affect the weight of agricultural interests? The chairman is one of five people and the fact that he is in one chair rather than another does not seem to affect the decision taken.
If it were to be suggested that there should be two commissions, one in relation to industry and one for agricultural purposes, there might be some purpose in that, but in what way does a man shifting around from one chair to another help agriculture? This I cannot understand, and I do not think that the Senator has taken up my point there.
I am not sure whether a quorum is fixed, but to state that on an agricultural matter the chairman must be one of the agricultural representatives makes sure that agriculture is specifically represented in this case. I would be astonished if the five members must be there in every case. At least this makes sure that when it is a matter primarily concerning agriculture a meeting will not take place unless an agricultural representative is there, and on that ground alone this is the reason that would weigh with me.
Surely there are simpler ways of doing it, by requiring that no decision in relation to a product shall be taken without one member nominated by the Minister for Industry and Commerce after consultation with the Minister for Agriculture, but there is no need for him to take the chair. No good reason is given for that. I cannot think why there should be a switching of chairmen, and I have never come across anything similar in any legislation.
Senator FitzGerald raised this point on Second Stage. I did refer to it and gave a reason, whether he found it convincing or not——
——why the chairman should change. A man appointed by the Minister for Industry and Commerce or a man appointed by the Minister for Agriculture, no matter what goodwill he might have or whatever his bona fides might be, would have a certain built-in bias in one direction or another. What I said on Second Stage about this was that it could happen that the approach of an industrialist might be different from that of an agriculturalist, especially if there is a question of a raw material for industry involved. The people who are concerned with the product about which the complaint has been made, when it is agricultural, should be the people to have the dominant position in that investigation. That is the reason for the provision about the chairmanship. I gave it before, and if Senator FitzGerald is still not convinced by it I am sorry but it is a sufficiently good reason to retain the provision.
Senator FitzGerald is not the only one who is not convinced on this point. The Minister's suggestion appears to be that it is necessary for the chairman to be changed because apparently a different decision will be made with a different person in the chair. If we are to get the same decision with Mr. Industry and Commerce in the chair as with Mr. Agriculture in the chair on all occasions, there is no need for any change of chairmanship to be made, but it appears that it is necessary not to reconstitute the five members of the Commission but merely to determine who should be in the chair when a particular type of product is being dealt with.
This suggests that the decision will change depending on who will be in the chair on a particular occasion and this brings to my mind grave doubts about how effective such a Commission will be. Is this the way the Commission will carry out their business: that the five members, having looked at the facts presented to them, will arrive at a decision, perhaps a majority decision if necessary, but that in some way, due to one person being in the chair rather than another, they will come to a different conclusion? It seems to me that is the idea of changing the chair: the chair changes the whole situation. That is something that has not been proved, certainly to my satisfaction. The objection to what is in the Bill here is that there is an unusual provision and in the case of an unusual provision, a departure from what is the usual, one usually expects a compelling case to be made.
We have had legislation of a similar type during the past 12 months. We have had legislation in regard to industrial training covering an exceedingly wide spectrum of the industrial field and a wide number of functions. In that case certain appointments are made by both sides in industry and others by the Minister for Labour, some after consultation with the Minister for Education, but there is no suggestion that when we come to provide for educational matters as distinct from industrial matters that we should have a game of musical chairs to ensure that educational matters are paramount. There we have a clear-cut proposal on a certain way to appoint members and a chairman of the Commission and then the matter is left to the good sense of those appointed.
Something of the same sort should have been attempted in this instance. The suggestion appears to be that by merely changing the chairman in some way you change the course of the argument and you change the decision. This seems to me to reflect a most peculiar way of arriving at the truth.
I hesitate to say this, because the suggestion has been made by a distinguished Deputy——
Deputy chairman, I mean. I would have thought he, particularly, would have recognised that the function of the Chair is not only to rule but sometimes to advise. I would have thought it to be important that someone completely qualified and conversant with the agricultural viewpoint should be there in a prominent position to advise on this occasion. It is not beyond possibility whether you, Sir, were in the chair or your deputy was in it that there might be a slightly different decision on occasions.
There might be a different decision depending on who is in the chair either in this House or on a commission. What we are concerned about is the decision of the Commission which would correspond to the decision of the whole House here. The Commission, like the House, should be able to make up their own minds on matters in which they are competent to make up their own minds and for which they have been commissioned to do so.
I do not think it follows that to have a different person in the chair will mean you will get a different decision. It might happen but it does not necessarily follow that it will. I should like to stress what I said before: where the item involved is agricultural it is not unreasonable to say that the people who have a deep knowledge of the agricultural industry should have the dominant position in that Commission.
But they will not have the dominant position —they are still one against three.
In so far as one can ensure this in this kind of structure. We are talking about the alteration of chairman. So far as one can achieve it, what we are really doing is ensuring that the agricultural community who, I repeat, represent the largest single industry in the country, will have sufficient confidence in the operations of the Commission that they will feel their interests will not be destroyed by people who they might feel, rightly or wrongly, were prejudiced in favour of industry and against agriculture, especially where there was a raw material involved for industry coming from agriculture. It is largely a question of public confidence.
It seems to me that the Minister's proposal would have the opposite effect. Subsection (2) of section 4 states:
The Commission shall consist of a chairman and four ordinary members, of whom the chairman and two ordinary members shall be appointed by the Minister and two ordinary members shall be appointed by the Minister for Agriculture and Fisheries.
As I see it, if the chairman who is appointed by the Minister for Industry and Commerce is in the chair, then on any matter on which there would be a vote the vote might be 2—2, in which there might or might not be a casting vote, but if one of the two agricultural members is in the chair the vote will always be 3—1 if there is any difference of opinion and in that case it will be against the agricultural element.
It is a subtle Department of Industry and Commerce plot.
You should not have disclosed that.
The Minister's use of the term "dominant position" is interesting because he used the same term during Second Stage. If the Minister feels that the logic is that you have a membership of the Commission so devised that the agricultural representatives dominate it, I cannot see this is necessary. The whole purpose of the Commission is to exercise control against outside interests and we seem to be setting up the Commission as if there is to be a civil war between all interests in the country.
Could it not be a merger?
Do not talk about the merger. When there is talk about alternating chairmanships I do not see that any case has been made for shifting the chairman. This will not give agriculture a dominant position. It could have the opposite effect because, as Senator Sheehy Skeffington has said, it does not change the voting situation. What will the chairman do in the chair that will change things? The only way he could change the result through being there is by advice as Senator Sheldon has said, but any member of the group can advise on the position presented, as an ordinary member.
The only way the chairman can influence the result to a different result is to prevent the matter going to a vote, in some way to rule it out of order, to abuse his position as chairman. Otherwise the voting will be the same. You have five people, each with an opportunity to speak, and I cannot see how the result will be altered by the chair. The only way the result could be affected by the chairman is by his abusing his position to prevent democratic process. If that is the intention I am against it. If it is not it is futile and pointless and no case for the alternation of the chairmanship. In view of the agricultural element, I can see a case for having five members of the Commission—two agricultural, two industrial and a chairman appointed by the Minister—and therefore, I will not press my amendments in so far as they involve a reduction of the agricultural representation to one. I think it is reasonable to have two agricultural members and two industrial members and to have the Chairman appointed by the Minister but the question of the chairmanship is something I would wish to press. I think the best procedure would be to leave the matter over to the Report Stage, amend this and press it then. I am not quite sure what is the proper procedure to adopt.
Then, is the amendment, by leave, withdrawn?
No, Sir. The position is that it embraces amendments Nos. 6 and 8.
The Senator may have a separate decision. The debate covers amendments No. 6, 7 and 8.
Perhaps it would be better if I withdrew the amendment and brought it up on Report Stage. Amendment No. 7 itself will have to be amended.
With amendment No. 3, we are also taking amendment No. 26a.
With the possibility of a separate decision?
I move amendment No. 3:
In subsection (1), page 3, to delete lines 5 and 6, and substitute "‘produce' may include grow or add value to, and the Minister shall have power by regulation to determine its precise meaning in any instance".
My concern in putting down the amendment was lest the definition of "produced" in the Bill, as drafted, might be too restrictive for the proper operation of the Bill. It includes grown and manufactured and grown and manufactured are processes which, to the ordinary man in the street, would be regarded as complete processes. When you speak about manufactured goods, the ordinary meaning is the whole process of manufacture from start to finish. What we are concerned with is not the whole process of manufacture, which is rarely carried out at the one place, but a process of manufacture by stages, at each stage of which, or at the final stage of which, value is added.
What the Minister is trying to get at is a certain stage of manufacture, probably the last stage, to ensure that we can prevent the dumping of goods which have completed the process of manufacture, perhaps, in various countries, and which have had the last value added in a particular country. As long as the word "produced" is used in the Bill without any classification there is a danger that we may not attach any added value given in one particular stage of the process of manufacture in any one country. That is why we feel that the word "produce" should include grow or add value too. I am not excluding the word "manufacture" but I think the words "or add value too" are necessary. Goods come into this country from a number of countries in each of which value is added and it is necessary that the Minister should be able to attack a certain stage of manufacture.
The Minister has put down an amendment which takes account of the latter part of my amendment. He has inserted this amendment in section 21 and I think that is the right place to insert it. As far as that amendment goes, I quite agree with it. The Minister has taken the necessary powers in order to determine what adding of value is relevant and what countries are relevant but he does not amend the section in connection with the existing phrasing and the word "produced" might get him into difficulties. He needs to redefine the word "produced" and make it quite clear in relation to "grown and manufactured or value added to". Something of that kind is needed to ensure that the Minister's amendment will be operative.
In the amendment as submitted by Senator FitzGerald there is one vital object and that is that it apparently gives power to the Minister to determine the law as it might arise from time to time. I doubt if that could be sustained in the courts and for that reason I do not think the amendment is accepable. On the other hand, I do think he has a point which is indicated by the amendment I have produced in relation to section 21. I feel that the definition of "produced" might need to be loosened up. I would propose, if the Senator would agree, to withdraw the amendment, to introduce a further amendment on the next Stage and to define "produced" in this respect.
I move amendment No. 4:
In subsection (1), line, 19, to delete "excluding" and substitute "subject to a deduction for".
This amendment arises because, in taking from the British Act a certain form of words and definitions, certain changes were made by our draftsman in the wording. While a number of these changes are harmless or may be beneficial there is one change which may cause difficulties to arise. In line 19 on page 3 the word "excluding" is the Irish draftsman's interpolation but the original words used were "subject to a deduction for". By substituting the word "excluding" for that, the effect in fact has been, if read carefully, to reverse the sense as it originally was. The Minister will see that there is this danger and that it would be better to restore the words "subject to a deduction for".
I have not yet seen the reversal of meaning to which Senator FitzGerald refers but, apart from that, I am not terribly happy with the wording. I propose to accept Senator FitzGerald's amendment.
I move amendment No. 5:
In subsection (1), line 2, to delete "An Coimisiún Dumpála" and substitute "The Dumping Commission".
The Minister originally had the name of this Commission as An Coimisiún um Mí-allmhairiú and it was then changed in the Dáil to An Coimisiún Dumpála on the grounds that the first four letters of the last word would help people unfamiliar with the Irish language to identify the purpose of this particular body. The only thing is that the word "dumpála" as I said at that time, is a very unattractive one. It is a word the ending of which, because of its excessive use perhaps in connection with the necessary invention of new words for new concepts in the Irish language, has given rise to a certain amount of ridicule. It is therefore one which I think we should try to avoid as far as possible. Personally I find the Minister's original word "mí-allmhairiú" in some ways preferable in that it is more natural to the Irish language than this invented word, but if the Minister felt that his original one was unsatisfactory, I think that unless he can get something better than "An Coimisiún Dumpála" it would be better to call it the Dumping Commission and not try to pretend that we have a word for it if there is not one.
The use of Irish words to describe particular bodies is something that works extremely well in some cases and not so well in others. I do not think we should force the issue where we cannot be successful as in the case of titles like An Foras Forbartha and Córas Tráchtála which have become acceptable to people and do not give rise to any difficulty, although perhaps I have given my point away by quoting "Córas Tráchtála".
I think Senator FitzGerald will find, as I have found, that one's original reaction to "An Coimisiún Dumpála" is that one is not terribly taken with the phrase but that it grows on one. Perhaps I have been living with it a little longer than the Senator but the real trouble here is that the word "dump" in any language is not an attractive word, and if we are to use the Irish language and to use anything related to dumping, I do not think there is any alternative to this. It seems to me that the policy we have been following of giving a name in the Irish language to those various bodies we have been setting up is a good policy and one that should be followed. The only reason for departing from it here is that "An Coimisiún Dumpála" is not a very attractive phrase, but as I said, it grows on one, and I think we will find in the course of time that we will use it just as we use the other ones the Senator referred to. I do not think the fact that it is not terribly attractive is sufficient reason for departing from the policy we have been following for a number of years. The phrase that was used before, "An Coimisiún um Mí-allmhairiú" is so difficult for people to say who are not familiar with the Irish language that it would never be used, whereas this one, attractive or unattractive, is easy to say.
The concept of people down the country having conversations about either of these is something that beats me.
I shall withdraw the amendment and see if I can think up something better between now and Report Stage.
The Dumping Commission means a commission for the purpose of dumping when you use it with the adjective before it.
It is a good point but there are precedents for that.
I move amendment No. 9:
In subsection (11), line 39, to add at the end "provided that no remuneration shall be paid to a member of the Commission who is a civil servant".
On Second Stage, I raised the question of civil servants as members of this Commission and the undesirability in principle of civil servants drawing additional remuneration for other work carried out in the course of their duties, in the course of their normal hours of duty indeed and in connection with their duties as civil servants. The Minister met this by saying that it was not his intention that civil servants should be members of this and he gave reasons why it might be better if they were not. I accept this as his personal intention. I do not think we should be tied down in this. There may be circumstances in which it would be desirable to include civil servants and I do not want to preclude this possibility. However, if the Minister did decide, or if a future Minister for Industry and Commerce or a Minister for Agriculture decided, to appoint a civil servant such a civil servant would not receive additional remuneration. I think on that principle the Minister and I are agreed, but if there is a possibility, as there is, that at some stage some Minister appoints a civil servant, we should make the position clear.
Is the Minister satisfied that the use of the word "interested" as it appears here is sufficient to indicate precisely what is meant? One would hope that all the members of the Commission would be interested in the subject under discussion.
I think the Senator may be on the section rather than on this amendment.
He is on another section.
Yes, but the question of being paid brought it into my mind. It is more on the section.
What Senator FitzGerald said fairly sums up the discussion on Second Stage in this regard. I did indicate that my own personal view was that in circumstances such as this, civil servants should not be remunerated in respect of these particular duties. I find there has been a long line of precedents of commissions and boards of this nature to which civil servants have been appointed and in respect of which they have received additional remuneration.
Some of which.
There is a long line of precedents for this kind of activity. Therefore, it seems to me that what is involved here is really a question of general policy which should be decided by the Government and not by me just in response to an amendment on this particular Bill. Consequently I find myself unable to accept the amendment but I am prepared to undertake to bring this matter before the Government for a decision in principle on the whole issue.
In those circumstances, I shall withdraw the amendment. The only thing is that by not pressing it, one leaves the Bill in a position where further precedents could be created, pending a Government decision. I suppose if the Minister's intention is that civil servants should not be appointed and if that intention is shared by the Minister for Agriculture, as I presume it will be, then it is unlikely that by not pressing the amendment, further precedents and further problems will be created. Therefore, I think it reasonable to leave it, in view of the Minister's assurance.
I move amendment No. 10:
In subsection (1), page 4, lines 50 and 51, to delete "is nominated either as a candidate for election to" and substitute "becomes a member of".
I am not confronting here the whole question of whether members of the Oireachtas should or should not be members of a body of this kind. This is something which we do need to look at some time as to just what are the areas from which members of the Oireachtas should be excluded and the other way round: who are the people who should be excluded from being members of the Oireachtas, which is perhaps a much more important matter. There are now so many categories of people who by virtue of their employment either by law or by the force of circumstances by nature of their employment are excluded from being Members of the Oireachtas that those Houses are, in a personal sense, extremely unrepresentative. Relatively few sections of the people become Members of the Oireachtas—self-employed people, some trade union officials and very few other occupations. The bulk of the people of this country are employees and, as such, are effectively excluded from membership of this House. If they are employees of the Civil Service or any such body they are particularly excluded.
There are broader issues involved in this matter but this is one thing which I feel we should raise and press, as we have done in regard to other Bills, the suggestion that the mere nomination of somebody for election automatically debars him from an office of this kind. It is quite arguable that membership of this body, and of the Oireachtas should exclude the person but I can see no case we might seriously consider for excluding somebody from even being nominated.
One of the problems regarding getting people to stand for the Oireachtas is that the mere act of standing, without even being elected at all, may damage their employment. They may then not be elected. This has been known to happen and in those circumstances they might be left high and dry and the anticipation of that position arising means that they cannot even offer themselves as a candidate. I think this House should do nothing to discourage people from standing for election to the Houses of Oireachtas. Merely standing as a candidate should not mean that they lose their job which is not then recoverable if they are defeated. Even with higher salaries in the offing not everybody would be prepared in those circumstances to gamble on being elected. My amendments are designed to limit the disqualification for membership of the Commission to people who have been elected but that they will not be disqualified by merely being nominated for election.
By and large I agree with the Senator but there is one difficulty. If a Member of this Commission were a candidate there would be some possibility that his being a member of the Commission might give him an unfair advantage in the election over another candidate.
I do not know but there is a possibility. I am not saying it matters. By and large I am on the side of the Senator. In the ordinary way it should be membership and not candidacy that should debar but in the case of people involved in the importation of goods there could be a possibility that undue influence might be used to have the person elected. Let us take election to this House on a restrictive panel. Let us take somebody who had a particular interest in a particular panel. It could happen on the industrial or commercial side, which is very restrictive, that a person might have special knowledge and could say: "I am in a position to give you special consideration."
That is an extraordinarily farfetched case, particularly in view of the electorate of this House. I cannot see the electorate of this House being persuaded to vote for somebody who is a member of this Commission and as such knows of goods being dumped or likely to be dumped. This seems extraordinarily farfetched.
It could happen.
Anything can happen. If you take that line, everybody in the country is debarred because he has a direct interest in something. I could not regard that point as being serious but there is another point which was not made by Senator Sheldon. A person going forward for election under our system will normally be standing for a Party. We should not overrule this because of the importance of debarring as far as possible from membership of the Houses of the Oireachtas. I should like to press this point.
As I understand it, the object of Senator FitzGerald's amendments is to ensure that people would be eligible for membership of this Commission other than Members of either House of the Oireachtas. He wants to ensure that people who have been nominated are not excluded because they have been nominated. Am I correct in that?
This object could, perhaps, be even more easily achieved simply by deleting subsection (1) and allowing subsection (2) to stand. However, that is an academic point. I think there is some substance in the points made but I do not think reference has been made to this from the point of view of the Commission. Senators have tended to look at this from the point of view of Members of the Houses of the Oireachtas but from the point of view of the Commission it is important that we should be able to show that it is an independent Commission which will arrive at conclusions, independent of pressure from the Government, from the trades concerned or whoever might be involved in the circumstances.
In those circumstances to have somebody a member of the Commission who was a candidate for either House of the Oireachtas and it has been pointed out that he might well be a member of a political Party, but whether he is or not he would be a politician looking for votes and at the same time be a member of this independent commission—this could create a situation in which there might be some doubt about the independence of the commission. If the person concerned were a candidate on behalf of the Government interest it could be alleged that the Government could certainly influence him. If, on the other hand, he were a candidate for the Opposition it could be alleged that before an election if there was an investigation of dumping going on in an area in his constituency, if he were standing for the Dáil, or, indeed, the Seanad, the constituency being the whole State, a crucial decision might have to be arrived at by the Commission it is conceivable that if the correct decision were one that would create great dissatisfaction in a certain industry or industries a person in that position might well be unduly tempted not to arrive at that decision. From the point of view of the Commission and its independence and the demonstration that it is an independent one it would be unwise to accept those amendments.
I think the Minister has made quite a case which has not been put to us before in that form. It is persuasive up to a point. However, in every individual instance when a Bill comes before us we are tried with this one, you find that each House of the Oireachtas is being excluded from something. I would suggest that we might review the present position. In present circumstances in the Civil Service we should reconsider the position of junior civil servants who are excluded. There is some case to be made for excluding policy-making civil servants but not for excluding the others. People with expertise are excluded by virtue of the fact that they are employees of certain organisations and they are involved in the public service or even, indeed, in State bodies.
I think the Senator's parenthesis is long enough.
I would, therefore, suggest that this is something which could be looked at by the Minister. As he has proposed in another instance to raise a matter on this Bill with the Government in regard to its general implications, we would be very grateful to him if he would also consider raising this question in its general implications. It has a lot of relevance to his Department because of the range of activities involved. Quite a number of cases of exclusion concern the Minister. It would, therefore, not be inappropriate for him to raise them. I would suggest that, perhaps, some kind of commission or committee of these Houses should look into this question and recommend where the line should be drawn. They should have a fresh look at it and I would be prepared to take it when that occurred. The Minister might have a further look at it.
I will look at it.
This is something we have been conscious of in this House over the past 10 to 12 years. Again and again, we have tried, as Senator FitzGerald has tried in this amendment, to liberalise the situation. In point of fact, it has been steadily going in the opposite direction and I appeal to the Minister to have a look at it generally and he certainly will get strong support in this House for any liberalisation he will introduce in these provisions.
The text reads peculiar to me. It says: "is nominated either as a candidate for election to either House of the Oireachtas or as a member of Seanad Éireann." Is the Seanad not one of the Houses of the Oireachtas?
You could be nominated to the Seanad.
I see. I did not get it.
The Minister was about to say something when Senator Quinlan intervened. Do not let us discourage him.
I will consider the suggestions made and bring them forward for a general review.
Thank you very much.
It is suggested that amendments Nos. 12, 13 and 14 might be discussed together.
I move amendment No. 12:
In subsection (1), to delete lines 20 to 24 inclusive.
The difficulty in the present wording is that the Commission is required to pre-judge the issue which they are investigating and the Minister has laid proper stress on the desirability of this Commission not only to operate fairly but to be seen to operate fairly. It is, to my mind, undesirable that the Commission should be in a position in which it is required, before it can carry out an investigation, to make up their minds to a certain degree on the subject of the inquiry. This section states the circumstances in which the Commission shall carry out an investigation. They are set out in paragraph (a) (1). In these circumstances the Commission has to consider whether it carries out an investigation.
Where it is a question of a request being made and it does not come from the Minister and he expresses an opinion and is merely there as an outsider, then the wording requires that the Commission shall, first of all, be of the opinion that the goods have been or are being dumped and the dumping was, or is, injurious dumping.
In those circumstances the Commission shall carry out an investigation. It seems to me that any investigation carried out by a body which have announced in advance what is, in effect, dumping, that has made up their mind to express the opinion that the offence has been committed, even if not an offence in law, undermines the credibility of the Commission. We must avoid this form of words and not put the Commission in the position in which, whenever a complaint is made to them, that by the mere act of investigating it they are proclaiming as of law that they are of opinion that dumping has been carried on and was, or is, injurious dumping. Whatever form of words we use it must not be a form of words which will undermine respect for the Commission's decisions. If they only carry out investigation, if they have made up their minds to that extent before they carry it out and if they are not allowed to investigate the matter before arriving at their decision, they will arrive at their decision before investigating, according to the law as set out here. This is something we cannot accept and for that reason amendment No. 12 has been put down. The other amendments are consequential on it. I hope the Minister can see his way either to accept my amendment or, alternatively, to propose something which gets us out of this difficulty.
Senator FitzGerald's point in regard to the Commission having made up their minds before they carried out the investigation pushes the matter a little far. A better analogy would be that in relation to a criminal offence and the investigation by the district court to take the depositions which would result in some cases in the district justice determining whether or not there was a prima facie case. If he decided there was a prima facie case, then the defendant would have to stand trial. The fact that the district justice had so decided does not mean that the man is guilty or half guilty. A somewhat similar position arises here. All that is involved is that an opinion should be expressed as to whether or not there is prima facie evidence.
The next point I want to draw to the attention of the House is that the GATT code to which we are trying to conform and, indeed, to which we must conform, specifically provides that there must be evidence both of dumping and of injury before an investigation can take place. There must be evidence of both of these things. Perhaps, I might quote from the GATT code, Article 5—Initiation and Subsequent Investigation. Paragraph (a) reads:
Investigations shall normally be initiated upon a request on behalf of the industry affected, supported by evidence both of dumping and of injury therefrom for this industry. If in special circumstances the authorities concerned decide to initiate an investigation without having received such a request, they shall proceed only if they have evidence both on dumping and on injury resulting therefrom.
So, it is quite clear there must be prima facie evidence on both these counts before investigation has taken place. In these circumstances I am afraid I could not accept the amendment put down by Senator FitzGerald.
I should, perhaps, say that as a result of his amendment my attention has been drawn to something which had not occurred to me before. That is, the Bill, as drafted, provides that the Commission shall investigate either on the initiative of an interested party or on the initiative of the Minister, but it also provides that the interested party must produce evidence of dumping and injury. In the case of the Minister he must be of opinion that there is both dumping and injury, but it goes on to say that the Commission must be of opinion that that is so before they can initiate their investigation.
It appears to me that when the Minister communicates to the Commission that he is of opinion that there is evidence of dumping and injury, the Commission must then decide whether they are of the same opinion and did they arrive at a different decision without further investigation. This seems to me to be an unsatisfactory position. I would propose, therefore, on the next Stage to introduce an amendment the effect of which would be that the investigation which would take place on the initiative of an interested party, would take place where the interested party had produced prima facie evidence of injury and dumping and the Commission was of opinion that that prima facie evidence existed or investigation would take place by the Commission where the Minister had expressed the view that he was of the opinion that there was prima facie evidence of dumping and injury. I think that that goes some of the way to meeting Senator FitzGerald's point though, perhaps, not the whole way.
It may, but I would like to go the whole way. While the Minister was speaking, I was trying to draft something along these lines introducing the concept of prima facie evidence. This business of forming an opinion on the merits of the case when it appears to him except that there is prima facie evidence seems reasonable, but however I think we should leave it at that and look carefully at whatever amendment the Minister will bring up at the next Stage.
I move amendment No. 15:
In subsection (3), line 37, to delete "any" and substitute "the General Agreement on Tariffs and Trade, the Anglo-Irish Free Trade Area Agreement, and any other".
This proposes to specify the two existing international obligations which we have which come under subsection (3) of section 7, in accordance with the general principle that where obligations of this kind exist they should be named while leaving it open for us to accept further obligations and for the Commission to act within the framework of any such future conventions. I think it is right that we should name here the conventions which we have signed to which we are parties and which already bind us. This should be publicly stated, as it is already in the British Bill, and it is not clear to me why we should not wish to follow that very good precedent, of spelling out the obligations already existing and leaving it open to include further obligations. I have endeavoured to establish what are the obligations to which this would extend and, subject to correction, the only two that we need have as far as I could ascertain are those arising out of GATT and the Anglo-Irish Free Trade Agreement. I hope that the Minister will accept this amendment.
I cannot see that anything is gained by this amendment.
Perhaps the Minister will tell us if anything is lost by it.
I am about to do that if I can find the sub-section. It says "the Commission shall have regard to any international agreements or conventions to which the State is a party". Clearly that covers the General Agreement on Tariffs and Trade and the Anglo-Irish Free Trade Area Agreement. If we accept this amendment it means that at any time we might enter into any other commitments it would have the effect that this Bill would have to be amended.
No, unless the Minister is reading the word "is" restrictively to mean that these are obligations which must exist now, in which case his own version is inadequate. He is using the word in a different sense to my amendment.
If the amendment were accepted, the subsection would read "the Commission shall have regard to the General Agreement on Tariffs and Trade, the Anglo-Irish Free Trade Area Agreement, and any other international agreements or conventions to which the State is a party". I am sorry; the point I was making about subsequent amendment is incorrect. But I do not see that anything is gained by spelling this out, in the sense that if there are other commitments entered into they are not going to be spelled out unless we amend the Bill. I do not know who we are helping by spelling it out. The Commission will be aware of it, and I would think that most of the people who are dealing with this would be aware of what the obligations were— well aware of them—so that while I have no strong objections to this I do not think that anything is being gained by it.
There is one possible objection. Something else might be substituted for the Anglo-Irish Free Trade Agreement, and if it is named specifically it would be in permanent legislation and that would seem to be undesirable because then an amendment would be required to take it out.
I do not think so. I am not a qualified lawyer but I would not have thought that that was the case. This would require you to have regard to these conventions but only, of course, if they are in existence, and if they ceased to exist you would not have to have regard to them. I suggest that this is a case where it is important that people should know in a Bill of this kind what are the obligations that at present bind us. I am probably as well informed about this as the average man in the street or the average importer or exporter or industrialist, and I was not clear whether there was not some obligation under the OECD but I was reliably informed that there is not. If even somebody like myself who is involved in these matters and has to keep in touch with the activities of international organisations has difficulty in knowing the existing obligations, then this must be true too of the community as a whole. It is good practice to spell out what they are, and this good practice has been followed in the British Bill. That we should drop it does not seem to me to be a good practice.
In the course of finding out what these obligations were it struck me that the word "is" is restrictive in this context, and it could be restrictively interpreted as meaning only those obligations to which the State is a party at the moment this Bill comes into effect. I should like the Minister to look at this and to consider an amendment to "is or may become a party", because that type of legislation is frequently used in Bills and "is" may be too restrictive. The Minister might, perhaps, have a look at the verb and then have another look at the nouns and introduce a few proper ones.
I did contemplate putting down an amendment to this section but I found it too difficult to draft it and decided eventually that it would be too arbitrary to bind the Commission. There is a problem here as regards publication in newspapers, and there should be some provision that this is non-discriminatory. I had thought of putting down something to that effect but I felt that it would tie the hands of the Commission too much, because one could see a case where the Commission would feel it adequate to advertise in a particular way. I came to this conclusion with some difficulty because of the present situation in which Government advertising is used by one Minister for discriminatory and political purposes, which is so objectionable that I do not think we should be happy with any Bill that enables this situation to continue. I found difficulty in framing any amendment which would meet my point and not be unduly restrictive, and, therefore, I decided not to attempt to amend it, but I think that this is something which should have further consideration as the present situation is a serious malpractice, contrary to all democratic procedure and one which we should not tolerate in this country.
That is arguable.
Not on this section.
It is arguable nevertheless.
I move amendment No. 16:
In line 50, to add at the end "and publishes in accordance with the procedure in section 8 the fact that such an authorisation has been given".
This is the section in which Senator Sheldon was showing a premature interest. I hope he will support me on this amendment as well as giving other constructive observations.
This section requires that "if a member of the Commission is personally interested in a particular matter with which the Commission is dealing, he shall inform the Minister of State who appointed him to the Commission accordingly and shall not act as as a member during the consideration of the matter, unless that Minister, being of opinion that his interest is not such as to interfere with the impartial performance of his duties, authorises him to act."
I suppose it is reasonable to give the Minister in that instance power of dispensation because the interest might be of such a peripheral or marginal a character as not to affect the decision of the member of the Commission, and a power of dispensation is reasonable but only on condition that in any such instance the situation concerned is published. Nothing could be more likely to undermine confidence in the Commission than that a man concerned was known to have an interest and it was not known whether he had disclosed that interest to the Minister or whether the Minister had given a dispensation. That would arouse suspicion about the Commission which would be most unwise. For that reason I put down the amendment, which I shall press, requiring that there should be added to the section the words "and published in accordance with the procedure in section 8 the fact that such an authorisation has been given". It is important that this should be published because we cannot have a situation in which people do not even know if the man has disclosed the interest he is suspected of having or whether he has hidden it. It is very important this should be open and above-board and that it is seen to be open and above-board.
I had some difficulty in considering this amendment because I favour the principle involved in it, but I was visualising a situation in which a member of the Commission might have an interest in an investigation that was coming up but that the public disclosure of that interest could be damaging to him in business. However, there is a procedure in the section whereby if this happens he can disqualify himself, and that being so it seems to me that on balance the public interest would be better served by having a provision on the lines of the amendment. I, therefore, accept the amendment.
I thank the Minister for accepting the amendment. I think it is important and I am glad he has met me on this point.
May I revert to the question of the use of the word "interest"? I know it has a legal connotation. It is one of the cases in which a word in its two meanings in one case might make almost nonsense and in another case might make complete nonsense and it might not matter; but it could look odd to say that members of the Commission had no interest at all in what we are discussing. Is it absolutely certain that it is sufficient to say "personally interested" and that this means and can only mean in this case having a personal interest of a financial nature or something of that kind? I am not sure whether it is strict enough.
"Has a pecuniary interest" might be better.
That might be too narrow. Senator Sheldon's point that one can assume members of the Commission are interested would be valid enough if we did not have the phrase "personally interested". These two words taken together mean something quite different. Whether they are sufficiently clear to convey what is intended—I think they are—I do not know but I am prepared to consider if it is possible to define this more accurately than by the words "personally interested": I should not like to confine it too narrowly because we might miss out. If a member of this Commission were directly interested and had a direct pecuniary interest, clearly he should disqualify himself straightaway.
The case with which the House would be more concerned would be where a member of the Commission had a rather indirect interest and it was doubtful whether this would weigh or not. I should hope the effect of this situation would be that where there was any doubt at all the member of the Commission would, if not disqualify himself, at least leave the matter to the Minister. Therefore, I do not want the definition to be too narrow but I will see if there is anything we can do about it.
The point is whether his interest is an interest which is personal to himself as a person and not just as a member of the Commission. I agree it would be disastrous to confine it too narrowly because that would lead to far more trouble than anything else.
I move amendment No. 17:
In subsection (1), lines 52 and 53, to delete "(other than the Revenue Commissioners and their officers)".
This is a small point. It does not occur to me why the Revenue Commissioners should be exempt from being requested to attend. They are not obliged to attend because it is not a subpoena procedure, but why they are not asked to attend I do not understand. The Revenue Commissioners are very independent and very important people and there is no reason why they should not be requested to assist the Commission. I have often made that hopeful approach to them myself, not often successfully, and I do not see any harm in the Commission being allowed to ask them to attend. My amendment proposes the deletion of this exemption from the request procedure.
The House will see, taking the section as a whole, that what is provided for is that witnesses other than the Revenue Commissioners may be asked to attend but may not be compelled to do so, whereas the Revenue Commissioners may not be asked to attend but can be compelled to give information available to them from the documents in their possession, so that in one sense the Revenue Commissioners are in a more disadvantageous position than other witnesses. If you consider it you will agree that the only evidence which could be or should be required from the Revenue Commissioners in investigations such as these is factual information available to the Revenue Commissioners from documents in their possession, and the Bill, as drafted, provides that they are obliged to furnish that information when it is requested.
However, a situation could arise in which the Revenue Commissioners or their representatives are appearing at an investigation and perhaps being cross-examined on matters other than the factual information which should be available to them and this could lead to a breach of the confidentiality on which the whole structure of the Revenue Commissioners is based. It seems to me that the section, as drafted, covers the requirements of the Commission to ensure that they can have and insist on having available to them the factual information available to the Revenue Commissioners from their documents.
I must say I am not convinced. I cannot see how a request to the Revenue Commissioners to appear as witnesses could get them into the position of having to disclose confidential information. All they have to do is to appear, and they can disappear if they are asked those questions. They are not under any obligation to be there so I cannot see any reason for exempting them. I can see a reason for their being requested to attend and I do not follow that there is anything one legitimately could ask for from them but documents furnished to them for customs purposes.
I should have thought it would be of very great importance to examine the Revenue Commissioners if they felt it appropriate and that it would not involve a breach of their requirements of confidentiality—to examine them on certain documents furnished to them—because one of the troubles with dumping is that documentation is not correct because documents may be falsified so as not to disclose dumping. If you had a customs document showing goods at a price corresponding with the home price in the country of origin, the Revenue Commissioners could be examined as to whether they believe that is not the true price and that the goods have been dumped. There is a particularly strong reason for wanting to be in a position to ask the Revenue Commissioners this question, so strong that I am tempted to suggest that there should be power to subpoena them. There can be no reason for excluding them from a request to appear so that even if they are willing to appear they cannot do so. It seems to me that the amendment is a good one and should be accepted.
I should explain that if we had a provision that the Revenue Commissioners could be requested to appear, in practice this would mean that they had to appear. A request from a statutory body such as this Commission would, in effect, mean that they would have to comply with it. They would have to appear, so I am informed. If this was the position and they had to appear there is a danger that confidential information might inadvertently be disclosed. The confidentiality of dealing with the Revenue Commissioners is vital and anything that would undermine confidence in that could do us very great damage. I feel that the provision we have in with regard to the furnishing of information by the Revenue Commissioners, the very fact that they are obliged to furnish it, should be sufficient for the purposes of the investigation. I do not follow the argument Senator FitzGerald is making that it would not.
All they are required to furnish is not information but only the documents supplied to them. They are not required to furnish information available to them which would be relevant to the inquiry. If it was the case that they were required to furnish particulars of information supplied to them and such further information as the Commission might consider necessary I would see some point in what the Minister says but they are even excluded from expressing an opinion as to whether the documents which have been supplied to them are reliable and they may even have to furnish documents which they know are unreliable and are not even required to say that.
The Commission is being put into a difficult position by not being able to ask the Revenue Commissioners if the documents which they have got are reliable. They must be allowed to say that either in writing or by personal attendance. I do not see how their attendance could lead to an undesirable disclosure of information. If questions went too near to the bone they could plead the Fifth Amendment or whatever is our equivalent to that.
This could make for the appearance of appealing or compromising.
I was wondering if we could not add in a provision that the Commission would not seek information and that the Revenue Commissioners should not give information of a confidential character. We could cover that by putting something into the section which, as it stands at the moment, is most unsatisfactory. At the moment the Revenue Commissioners are left in the position that they may have to submit documents which they know to be false.
Is it the function of the Revenue Commissioners to say whether they think that information they are supplying is reliable or not? How are the Revenue Commissioners to have any opinion on a matter of this kind?
But they do have opinions. Take the case where goods come in and the invoice which is prima facie appears to be false, if the invoice says that coats are value for £10 and this is thought not to be the price, the Revenue Commissioners will take appropriate action to ensure that the goods are not allowed in. It is the job of the Customs officer to ensure that the information furnished is correct and, if not, to take the appropriate action. The opinion of the Customs officer would be there.
Surely such an opinion by a Customs officer would be in the form of a document in the control of the Revenue Commissioners and, therefore, available to the Commission. I doubt that the Revenue Commissioners would act on information given in a telephone call.
Under section 3 the only thing the Revenue Commissioners can be asked to do is to furnish to the Commission documents which the exporters have furnished to them. There is no question of their being asked whether these are all the documents they have, whether these documents are reliable or for any other information other than the documents.
The section says that they shall request any such witness to produce to the Commission any documents that may be in their control.
That is subsection (1) (c) and it does not cover the point. The Revenue Commissioners have certain documents and they are asked to furnish them to the Commission. They furnish them. But there may be other documents. The Commission will not know that these other documents are in existence and they cannot ask for them. The Revenue Commissioners may have formed the opinion that what is in the documents is false but they may not have written that down. Unless they have written it down the Commission cannot ask them for it. Even if they have it written down the Commission does not know that and so cannot ask for it. If they knew it existed they could ask for it but they do not know that it exists and they cannot find out that it exists. In this way subsection (1) (c) does not meet the point at all. There may be very relevant documents in existence but if the Commission does not know that they are in existence they cannot ask for them.
I cannot see in paragraph (c) anything that suggests that a witness is only to produce a document which the Commission knows exists. Such a witness is told to produce everything that is relevant. The Commission would ask for all the documents in the case.
I am not clear on that. I would not have thought that the phrase "request of such witness to produce any document" would cover all documents and all information in the possession of the Revenue Commissioners. There may be a request for particular information but there may be no such document containing that information in existence. There is no reason to think that the Revenue Commissioners make a memorandum of all information in cases such as this and so the opinion of a witness would be necessary in this case. I see no reason to preclude the Commission from getting this guidance unless in some instances it means the Revenue Commissioners departing from their duty of confidentiality, in which case they should have the power to resist such questions.
The matter with which Senator FitzGerald is concerned would, in fact, be met in practice because, first of all, if the Revenue Commissioners are to appear formally before the Commission and give evidence they should not be asked to give evidence of their opinion. I think this would be objectionable and this is the point Senator Sheldon was making. This does not mean that if they have an opinion that a certain invoice is false this information would not be communicated to the Commission.
But the Commission cannot ask for it.
If the Commission says to the Revenue Commissioners: "We are investigating a complaint of dumping in relation to so and so" they will ask for any information available from the Revenue Commissioners and the only information the Revenue Commissioners can formally give them will be documents or information from documents in existence. I think Senator FitzGerald is interpreting subsection (3) much too narrowly because it does not provide that the documents concerned must be only those relating specifically to the complaint. I think one can assume that if the Revenue Commissioners have the information that a particular invoice is wrongly priced, having arrived at that information as a result of other documents in their possession, there is nothing in this subsection which would prevent the Revenue Commissioners from furnishing the information from those other documents to the Commission, the documents on which the Revenue Commissioners had themselves arrived at this conclusion. Any opinion the Commission may receive from any witness is merely an opinion and the final decision has to be theirs but in so far as the opinion from the Revenue Commissioners would be of value to them as to whether certain values were true or false, I have no doubt at all that they could obtain that kind of information informally from the Revenue Commissioners. However, to ask the Revenue Commissioners formally to express an opinion would, I think, be unreasonable and you would find that in practice you would not get this from the Revenue Commissioners. They would say: "We can give you only evidence of information available to us on the documents available to us". Therefore, in practice, I think that what is set out here will achieve what Senator FitzGerald wants to achieve, whereas I would be afraid that to accept the amendment might well have the effect that you did not achieve that situation.
I think the Minister is incorrect in saying that subsection (3) is not narrowly drawn. The point he was making is one which is met partly by subsection (1) (c). It is not met by subsection (3) because this is most specific. It only covers information furnished to the Revenue Commissioners for documents for customs purposes.
Yes, but not any documents for the purpose of the particular case being investigated. In other words, if we take the goods the Senator mentioned—overcoats coming in at £10— and the Revenue Commissioners believe that this is a false value. They would believe that presumably because they had evidence available to them from other cases that similar articles were valued, say, at £20. This is how they arrived at their decision. Subsection (3) does not preclude them in such circumstances from furnishing to the Commission information available in relation to the invoice showing £10 and the other case with an invoice showing £20.
It does not preclude them but it does not help the Commission to get that information because they would have to know about these other documents in order to request them. They cannot simply say: "Send us all the customs documents of other goods over the last 40 years." I really do not think that this form of communication is adequate. I do not think any court would be satisfied with an inquiry in which its powers of discovery of documents was limited in this way. Without a verbal examination of witnesses you might never get to the bottom of the thing. I do not think this is adequate. Certainly, subsection (3) does not cover it. I think in subsection (1) (c) there is more specific power, perhaps, but it is not a mandatory power and nothing that has been said convinces me that the Revenue Commissioners should be totally exempt from appearing, although I would accept that if this amendment were accepted it might be necessary to make some provision to protect them in the course of cross-examination from being pressed to disclose something they should not disclose but it would be quite easy to draft such an additional amendment if the amendment I put down were accepted.
I feel very strongly that the acceptance of Senator FitzGerald's amendment will almost certainly have the effect of ensuring that the kind of information which should reach the Commission in whatever way it might reach them would not reach them if this amendment were accepted. I feel that the procedure laid down in the Bill is the one which will be most effective. I am sure the Senator will appreciate that there are occasions on which the most effective way of doing something may not necessarily be the one that is clearly evident on paper as being the most effective way. I think if he gives some further thought to this matter he will come around to the view that what I am doing is correct.
Well, I have not yet come around to that view.
Does the Senator wish the House to wait until he has come around to that view? Is the amendment being pressed?
Not to the point of a division but I still disagree.
Is the amendment being pressed?
Which is it?
This is something on which I did not put down an amendment but I am not too happy about the quorum being two. Two is a small quorum to begin with in absolute terms. I would have thought the quorum should have been three in a case like this. I do not think it is satisfactory to have decisions taken by two people.
I understand this is in line with the Restrictive Trade Practices Act, 1953 which set up the Fair Trade Commission.
It is a very restrictive practice to have a quorum of only two.
It seems a reasonably good precedent for this kind of Commission.
It is now approaching the hour at which the Seanad normally suspends business and there are two amendments on the next section. Is it proposed to suspend business?
May I suggest that since it appears there is not a tremendous amount left we could possibly finish within a reasonable time? It might be as well not to suspend business but to complete the work, if that meets the wishes of the House.
Would Senator FitzGerald finish by 7 o'clock?
I agree it might be the sensible thing to do but I am in a personal difficulty, having a commitment in the immediate future.
Business suspended at 6 p.m. and resumed at 7.15 p.m.
This amendment arises because in the subsection as originally drafted the phrase "may occur" on further consideration appears as though it might lead to a situation in which the Commission would be prevented from recommending the imposition of a provisional duty, unless they believe there would be further injurious dumping of the kind under investigation before the investigation is completed. If it had this form this could prevent the imposition of a retroactive levy on a single large consignment of dumped imports and thus reduce the deterrent value of the retroactive provision. I think this amendment should make the position clearer and stronger.
I am not quite clear why the present wording could have the effect of impeding the retroactive provision. I did not follow that part of the Minister's statement. In what way would the wording have that effect?
The wording in the section as it stands at the moment is "if the Commission is of opinion that injurious dumping may occur". It has been suggested that could be interpreted that the Commission must be satisfied that such dumping may occur again before the investigation is completed otherwise there would not be much point in the Commission taking action. If that were so, if the Commission had to be satisfied that this was so, it would mean that where the Commission were not so satisfied, in other words it did not have evidence which would justify it coming to this conclusion, in those circumstances the Commission could not recommend a provisional duty. If it could not there could not be a retroactive levy. It would seem that the amendment would by simplifying the wording and taking out the possibility of this interpretation, mean that the Commission would not be so inhibited in cases where such dumping might occur but in which the Commission did not have sufficient evidence to come to this conclusion. That is implied in this particular interpretation of the phrase. It may be interpreted differently but if this interpretation is to be taken, I think it is wiser to take the precaution not to allow it to happen.
I see it may be wiser to do so though it is not often that here it makes that much difference because the Commission under the terms of the amendment would not take this action unless they were of opinion there was a risk. There would be no point in it unless they thought there was a risk. If they think there is a risk, they would fall within the section. If there is any doubt in the matter it is better to amend it in the way the Minister has said, though I am not sure I understand why there is such doubt.
I am informed there is such a doubt.
I move amendment No. 19:
In subsection (1), line 5, before "in" to insert "estimated by it" and in line 6 to delete "estimated by it".
This is purely a drafting amendment. The order of words seems clumsy and I thought this would make it clearer. As it stands there is a parenthesis:
(not exceeding the margin of dumping in relation to the goods estimated by it).
What is meant is "not exceeding the margin of dumping estimated by it in relation to the goods".
I agree with the Senator in that and I accept the amendment.
I move amendment No. 20:
In subsection (2) (a), lines 30 and 31, to delete "and the Minister is satisfied that there has been injurious dumping of goods of that kind".
The procedure laid down in the section is that, first of all, the Commission makes a recommendation to the Minister. Then the Minister has to be satisfied that there has been injurious dumping and then the Government may order the imposition of a duty. The intermediate stage here appears to me to be superfluous and it would hold things up. It seems to me you have two essential stages. There is, first of all, the recommendation by the Commission who must have satisfied themselves on this point. The Commission may only recommend an anti-dumping duty if they are satisfied that there has been injurious dumping of any kind undersubsection (1). If the Commission are so satisfied, then the case will go to the Government. It is true that the Government might not accept the Commission's view. The wording of subsection (2) lower down is:
the Government may, if they so think fit, by order impose a duty.
I can see no purpose, therefore, in the interposition of a further stage, that the Minister has to be satisfied. Without that phrase the Commission must be satisfied that there has been injurious dumping and the Government must be satisfied that the duty is necessary and the Government have the option of deciding not to impose it if they do not wish. Of course, at the Government meeting the Minister for Industry and Commerce can express his view and if he disagrees with the views of the Commission he can say so.
It seems to me undesirable that the Government should be inhibited under this section from taking action recommended by the Commission after full investigation as being necessary because the matter is inhibited from being brought to the Government by the Minister not being satisfied. If the Commission are satisfied that there has been injurious dumping and if the Government are satisfied at a meeting at which the Minister for Industry and Commerce can represent his own views, this should be enough.
I see no reason to give the Minister for Industry and Commerce a right of veto to prevent a recommendation of the Commission coming before the Government at all, thereby preventing the Government from taking action which they might wish to take in regard to a matter which the Commission had investigated and found that action to be necessary. I can see no reason or advantage in it. I can only see a possibility of damage emerging from proposing this further stage. It seems to me that the Commission and the Government are the two crucial parties. I do not see the Minister has any further role to play or that interposing him is in any way useful. That is with respect to the Minister.
With respect to the Senator, I do not accept his arguments. I think the Minister for Industry and Commerce is the person responsible to the Government for safeguarding the Irish producer and protective duties and quotas are imposed normally only on his recommendation. I do not think the Minister for Industry and Commerce should abdicate this responsibility.
Apart from that, I would point out to the Senator that even if his amendment were accepted the position would be exactly the same because in order to bring it to the Government the Minister for Industry and Commerce has to take action and, in practice, even if the amendment were accepted and the Minister for Industry and Commerce did not take action to bring it before the Government it would not go there. Nothing is gained by the amendment anyway. I do not accept the principle on which the Senator is working but even if I did this amendment would not achieve anything.
I do not follow. Does the Minister suggest that the Government are powerless to act on a recommendation made by one of their Ministers? I would have thought that if the Commission makes a recommendation to the Minister for Industry and Commerce even if he does not like it and does not wish to put it before the Government, any other member of the Government could raise it. I know nothing about the inner activities of Government meetings, but it surprises me that it should be suggested that any Government should not be in a position of taking into account a recommendation by a commission to one of its members unless the recommendation was put to the Government by that Minister. This is a revolution in Government practice which I find surprising. If this, in fact, is how the Government operates, then I am prepared to modify my amendment to meet this case by requiring the Commission to make its recommendation to the Government. I can hardly take the Minister very seriously on that point, but in any case I do not think he has answered me on the main point and given me any valid reason.
It is true that the Minister is responsible in the matter of the whole apparatus of the Bill and he is personally responsible for a recommendation to the Government in regard to adopting a recommendation from an independent commission, but to say that, that having been done, you must protect the Minister because it is his responsibility is in a sense to make nonsense of the Bill. This is a Bill establishing a commission as an independent body to make a recommendation to the Government. You may say that it recommends to the Minister, but the Commission is there to make an independent recommendation to the Government, and under this Bill it is the Government who have to take a decision on that recommendation. This concept of the Minister having a right of veto to prevent the matter coming before the Government because it is his responsibility is something that I find constitutionally unacceptable in both the literal and metaphorical concepts.
Let me repeat that I do not accept the principle on which Senator FitzGerald is arguing here. Let me also say again that the normal procedure of the Government would prevent such a matter coming before the Government except on the initiative of the Minister for Industry and Commerce. At least this is the practice in Fianna Fáil Governments, the reason being, of course, that members of the Government who are charged with a particular responsibility discharge that responsibility and their colleagues have confidence in the fact that they will discharge it.
The confidence is not reciprocal if you will not let it to another Minister.
Another member of the Government would not intervene to try to do the job of the Minister for Industry and Commerce. Similarly, of course, the Minister for Industry and Commerce would not try to do the job of another Minister. This is, in fact, a matter of normal procedure within the Government, and the suggestion that Senator FitzGerald makes is based on the idea that the Minister for Industry and Commerce in this Bill is abdicating his responsibilities in regard to the safeguarding and protection of the Irish producer. This is not so. The establishment of the independent Commission is designed to obtain independent recommendations, but that is all. The responsibility is that of the Minister for Industry and Commerce and, of course, of the Government through the Minister for Industry and Commerce. The Government acts in regard to matters of this kind through the Minister for Industry and Commerce, not through the Commission, and I am not prepared to accept that there should be any change in that procedure.
If the present procedure is as the Minister says, no doubt the present Government is entitled to its own procedure, but what he is saying is that the words proposed to be deleted are unnecessary and superfluous because there is no need to put it into law. But future Governments should not be required to accept a situation where the Government as a whole is entirely prohibited from carrying out the responsibilities given to it under an Act of the Oireachtas because the Minister for Industry and Commerce is empowered to block discussion in this matter. To prohibit the Government from using its responsibility given to it by an Act of the Oireachtas by reason of the right of veto of one Minister, preventing it from discharging its duties laid down by law, so that the Government cannot even be formally appraised of or take notice of or consider a proposition unless he agrees—this is a principle which might well be practised in one particular Government but it certainly is not one which should be laid down in any Act of the Oireachtas. I do not think that any Government should abdicate its responsibilities in this way.
If, however, the Minister were to say that the Commission should make recommendations to the Minister. I would be prepared to amend the Bill accordingly. The Minister may have other reasons of an international character, perhaps, for adopting the procedure here. There may be reasons of international practice which make it necessary to adopt this procedure, but the Minister has not told as about them. I would be quite happy if the Bill were amended so that the Commission made the recommendation to the Minister, but I cannot accept that on the one hand the Bill gives power to the Government of making a decision on a recommendation and on the other hand that power is taken away by depriving the Government of the right or responsibility for even considering this matter unless the Minister for Industry and Commerce puts it before them. If that is a practice of a particular Government at a particular moment, that is a matter for that Government, but that it should be laid down in an Act of the Oireachtas, under which the Government gets a responsibility, that the Government should not be able to exercise that responsibility is something that I find objectionable as a general constitutional principle and something that should not be enshrined in any legislation.
If the Minister wants the decision to be taken by the Minister in each case, I would accept an amendment to that effect. If, on the other hand, the decision is to be taken by the Government they should be free to take it without interference from any Minister whatever his role may be. I think that that is a clearcut constitutional principle, and I cannot visualise a Government accepting any other method of working. It is true that in practice they will always defer to the responsible Minister, and at least take his opinion into account, but the procedure introduced in this way is something that I cannot accept.
Any Government that does not have faith in its Minister for Industry and Commerce should not have him as Minister for Industry and Commerce. If it has faith in him, then the responsibility of that Minister should be exercised by him and cannot be abdicated or abrogated or handed over to a commission on the one hand or to the Government on the other. The Government has another role in this matter, but the principal role is that of the Minister for Industry and Commerce in regard to the imposition of duty and in acting as the person who normally initiates such matters with the Government and informs the Government of the issues involved. That is the role of the Minister for Industry and Commerce, and that is the role which is envisaged here, and it is not one which should be changed.
The Minister has made an excellent case, which I entirely accept, for giving the decision to the Minister, and I am quite prepared to accept the amendment flowing logically from what the Minister has just said. Of course, it is true that this is the responsibility of the Minister, and I do not see why the Government has been brought into it, but if for some reason, which he has not yet disclosed, the Minister wishes the Government to take this decision, why then should he arrogate to himself the power to prevent the Government taking the decision? If the final decision-making power rests with the Government they should not be inhibited by the action of any individual Minister. If the Minister feels that he must have the right of decision—and that is a reasonable attitude for the Minister to take if there is no compelling reason for transferring this decision-making apparatus to the Government—I would support him in an amendment giving him that power; but I cannot support him if he comes as a veto mechanism between the advisory commission and the decision-making body which is the Government.
The imposition of duties is almost invariably a function of the Government and not of an individual Minister, but I cannot see the logic whereby Senator FitzGerald objects on the one hand to the Minister being the person to decide to take the initiative in this matter and on the other hand is prepared to accept that the Minister would have the final word on it. This does not seem to me to be logical. As I have explained, the reason why the Bill vests the power to impose duties in the Government is that this is done in virtually every case that I can think of. There are very good reasons why it should be done by the Government rather than by an individual Minister.
This does not take away the responsibility of the Minister for Industry and Commerce to initiate such moves and to inform the Government of all the relevant factors involved. I see no reason why such a practice should be changed here: I have not heard any convincing reason why it should be. The only suggestion I can recall Senator FitzGerald making is that the Minister might delay the matter. Senator FitzGerald should know that even if the provision were that the Commission recommend to the Government, in practice this kind of thing would be delayed by the Minister. The actual mechanism of bringing it before the Government would have to be handled by the Minister for Industry and Commerce, and to assume that the Minister might delay it ignores this fundamental practice. The Minister for Industry and Commerce is the member of the Government who would be most concerned in such cases—the one most anxious to bring it to the Government's notice. I do not find any convincing reason for changing it and if there were reasons given they were not strong enough to overcome my objection.
The Minister said at an early stage that there were very good reasons why this decision should be taken by the Government. That is my point. Therefore, there should be no grounds for him to take the decision from the Government—to give the Minister the right of veto. The Government may not take cognisance of such a recommendation unless the Minister is satisfied it should be laid down as a requirement. The Minister has to decide whether to accept the Commission's recommendation, their fair report. Otherwise the Government might not even consider it and, therefore, the duty of the Government to act in the matter might be negatived if the Minister were to veto it. I cannot see why that should be thought necessary or desirable in the ordinary routine way when the Commission recommend. In the ordinary routine way it would be put before the Government but in exceptional circumstances the Minister might fail to do so and it would be open to a member of the Government to open the matter. I do not think a Government should be put in a position where they have an obligation to act but cannot do so because they are put under veto. Either the Minister agrees the Government should make a decision or he should decide the matter and I see no lack of logic in that position. I ask the Minister to consider it further. I do not understand his sensitivity on this point which seems to me to be quite logical. If he tells me he will consider it further between now and Report Stage I will not press the amendment.
I would be misleading the Senator if I said I would reconsider this. I cannot see any possibility of my being convinced of the principle which Senator FitzGerald is enunciating. It is contrary to what I believe to be good practice, both constitutionally and also from an administrative viewpoint. It would, in fact, cut right across the whole procedure on which the Government operate—the Government in relation to Ministers and their Departments— and I can see no convincing reason why we should depart from that practice.
Would the Minister assist me by giving precedents? There are many commissions which report to Ministers. There must have been cases in the past when commissions, whether continuing or ad hoc, have reported to the Government and decisions been taken but are there precedents where commissions have recommended action to be taken by the Government and where by law the Government have been prevented from considering those recommendations unless they are allowed to do so by the Minister—precedents giving the Minister the right to veto?
As I have told the Senator, in practice, no matter what is in a Bill, that is what happens anyway.
I am not concerned with practice. I am concerned with the law.
The practice is based on good administration and also on the constitutional concept of collective responsibility.
You can undermine collective responsibility by preventing the collective body from acting. Can the Minister quote the precedents for which I have asked?
I cannot do it offhand but I have no doubt many such exist.
That is not very convincing.
Every commission which ever sat during the past 40 years have placed the Minister in this position hundreds of times. They have made certain recommendations——
To the Government.
All of them have been set up under a particular Department. They report to a certain Department——
All of them?
Whether the Minister does anything about those recommendations is a matter for himself. In certain cases the matter might be one the Minister himself could deal with if he sees fit to do so, if he agrees with the report. In other cases it would be a matter for Government decision —anything that might involve additional expenditure or legislation would have to go to the Government and, obviously, it would be referred to the Government by the Minister concerned. I find it difficult to follow the interpretation of Government policy in these matters which the Senator appears to have. He visualises a situation in which another member of the Government—the Minister for Lands or the Minister for Posts and Telegraphs—could make up his mind that the Minister for Industry and Commerce is not doing his job and goes to the Government saying: "Why do not we do the job this fellow is not doing?" That may have happened in the case of certain previous Governments here but it is contrary to normal constitutional practice not only in this country but in other countries with Cabinet Governments. The proper normal constitutional practice in Government of the Cabinet type is that the Minister is responsible for the Department and no other Minister can start——
Or the Taoiseach?
The Taoiseach can, but not any other Minister.
Who said anything about another Minister?
Senator FitzGerald said it several times in my hearing—that the situation he would like to devise is that which he is disputing in this measure—that some other Minister could raise the matter and ask why did not the Minister responsible do so. To my mind that is utterly contrary to all constitutional practice.
What I visualise is a situation in which if the Government ought to consider the matter they should have the legal power to do so.
Or some other Minister?
No. The normal procedure would be for the Taoiseach to raise the matter. Senator Yeats has not offered any constructive contribution. What precedence is there for a commission to be appointed and to recommend action to be taken by the Government and by law the Government are prevented from considering the recommendations of that commission unless they are allowed to do so by the Minister? Are there precedents for that? It seems an odd procedure.
Surely a commission appointed by a Minister report to that Minister and a commission appointed by the Government report to the Government.
I agree but the Minister has decided, no doubt for good reasons, to require that the Government take the decisions. That being so, the Government must be free to take them. If they are to be Government decisions the position should not be that the Government may not even consider the matters unless the Minister so desires.
Is the amendment being pressed?
Would the Minister like to go first on this one?
Perhaps, I had better speak on amendment 21A because if this is accepted amendment 21 will not be necessary. The reason for this amendment is that the Bill, as drafted, deals with the situation in which third country dumping is involved but it does not specify who is to say when dumping is taking place. The object of the amendment is to provide a procedure to establish whether the goods were or were not dumped. The procedure proposed is that whenever the Minister is satisfied that goods are being dumped and that there is danger that they will continue to be dumped and so on, he can deal with the matter.
I accept the amendment because I was trying to devise some mechanism to deal with such a situation and the Minister's amendment is preferable to mine in that respect. The objective has been achieved and I am satisfied.
Amendment No. 23 may be taken with this amendment. They are merely drafting amendments and are designed to clarify the meaning of the section by altering the position in the sentence of the words "in the order". This helps to clarify the meaning.
I move amendment No. 24:
In lines 41 to 43, to delete "and whether related directly to the goods themselves, to materials of the goods or to something else".
I propose the deletion of these words because I cannot make any sense of them and I hoped that by proposing the amendment I would extract from the Minister some sense from them. The words propose grants or subsidies or tax reliefs for certain goods "whether related directly to the goods themselves, to the materials of the goods or to something else". It is the "or to something else" that gets me down. It is an extraordinarily vague phrase. You cannot have a grant unrelated to some object and it seems to me to be superfluous to put in the words "or to something else". When you have grant, loan or tax relief you have covered the position. I am more than willing to hear the Minister give some reason as to why he has put in these words.
There are very good reasons why the words "or to something else" should appear. They may appear to be somewhat vague but if you do not have them there the subsidies must relate directly to the goods themselves or to the materials of the goods. There are a number of kinds of subsidies which do not relate to the goods or to the materials, the provision of grants for research or the development of an invention, or subsidies for the sub-assembly of goods as distinct from subsidies for the goods themselves, or subsidies for labour costs or the cost of equipment. It is very important that all the possibilities should be covered.
I quite agree but I cannot see why you do not cover all the possibilities without the words "or to something else". You do not specify to what the grant, loan or tax assistance is related. I cannot see how the addition of that phrase includes the cases which the Minister wants to cover or any other case. It is only when you add it in relation to the goods or materials that you get into difficulties. If you do not tie it down by relating it to the particular goods and materials you are in difficulties.
This is only a question of drafting and I am advised that the words proposed to be deleted do not restrict the definition and that they are necessary to make it clear that they refer as well to subsidies not related directly to the goods or the materials themselves.
I can only take the Minister's word for it.
This amendment is proposed because I am advised that the present wording would preclude the imposition of a retroactive levy on a single large collection of imported goods. It is in accordance with the GATT code.
I regret the Bill has been drafted in such a manner as to limit the retrospective effect to 90 days. It does widen the possibility that goods could be brought in here, stored for 90 days and then released. I understand that while we are in good relations with the GATT we are not bound by the GATT code and we are now accepting a limitation which is not imposed on us and one which could create a danger of dumping. This is the only significant feature of this Bill which is unsatisfactory to industrialists. Could the Minister give his reasons for restricting the limitation to 90 days?
It is true that this is not a matter of international obligation at present. We wish to adhere to the code both in order to prevent dumping and to obtain protection for ourselves. If we are to do this we must comply with the code. If we do not conform with the code in this Bill, as soon as we do adhere to GATT we will have to change the Bill and there would not be much future in that. There is also a factor that always has to be borne in mind on any discussion on dumping, that if we are too rigid in our approach we may well provoke a similar reaction in the countries to which we export and I think any attempt to go beyond the maximum provided in the GATT code would be inviting some kind of retaliation by the countries to which we export.
The Minister has made a good case on that. I would just ask him as a matter of interest when we will be adhering to the GATT code. Is this imminent?
It is not possible, I am afraid, to give any accurate information on that at the moment.
I see. The Minister cannot tell us.
We have not come to any definite conclusion on it yet.
Other than that we are going to adhere to it.
I must admit to being a little unhappy about one thing.
Do not be unhappy again.
I am sorry to have offended Senator Ó Maoláin who always gets upset about my unhappiness.
We like to see you happy.
What bothered me about it, if that is a better phrase, is that it gives the Minister the power of dispensation in regard to duties and one is always reluctant to give these kind of powers to Ministers because the fact that they have so many of these powers does create problems. It is in a sense an exercise of a judicial function to dispense from the law in this respect. On the other hand, in view of the nature of the dispensatory power and the circumstances in which it will be employed in this case I felt on the whole that it was better to leave it as the only procedure one could propose would be a more cumbersome one. While there are cases where the power of dispensation creates such dangers that no matter how cumbersome the alternative procedure it must be adopted—we had a case of a Bill in the Dáil recently—it seems to me here that the balance of advantage lies in keeping the present simple system as the dangers involved here are not very great. It is only in circumstances such as these where the dangers are not great that one accepts this without undue demur.
I move amendment No. 27:
In subsection (1), line 36, to delete "country" and substitute "any other particular country or countries".
The wording here seems to me to be a bit odd as it says:
. . . . to determine whether the goods are goods produced in a country specified in an order under this Act or are goods exported from any country. . . .
If things are exported they can only be exported from a country. Do not let us get too involved with East Germany again. The Minister will concede—or perhaps he will not—that East Germany is a country. It is part of a country anyway. This phrase "exported from any country" is very odd because it seems superfluous. Goods have to be exported from some kind of country. I think what is aimed at is to get across the point that the goods have to be specified to determine whether the goods were produced in a country from which goods might be dumped, or were exported from some other specific country from which goods produced in the specific country might be exported. The aim here, I think, is to try to get into the position where it could be laid down that there are certain countries involved where goods produced are suspect as regards dumping and certain other, perhaps, nearby countries which would be suspect because the goods exported from them might have originated in the countries specified. I think what the Minister wants to do, if I understand him correctly, is to get a situation where, unless goods come from a country on the production list or from some other countries from which those goods can readily be exported because of these countries' contiguity to the producing country, otherwise the goods can come in freely. If I am right, then I suggest that my amendment covers it and makes it a little more sensible. "To determine whether the goods are produced in a country" should not take very long to do.
This may be a little clearer when one says it out loud rather than when one reads it.
The Minister will now recite.
The Revenue Commissioners may require a person who imports goods to state such facts concerning the goods and their history as they may think necessary to determine whether the goods are produced in a country specified under this Act or are goods exported from any country.
It has not helped.
On the one hand, you have a specific country set out in the order but we are concerned to know even though they were produced in a country specified in the order from what country were they exported because it might mean that we would have to put that country on the list as well. I do not know if this is clear.
The object of the exercise is perfectly clear but the method of achieving it is bad. What you want is either my phraseology or perhaps to change the words around a bit and say "to determine whether the goods are goods produced in a country specified in an order under this Act, or from what country the goods are exported." The one thing you do not need the Revenue Commissioners to determine is that the goods are exported from any country. They must be exported from some country.
The Senator is reading this in one sense. It can be interpreted in another sense.
Generally, with legislation one tries to get it so that it has one sense only.
The manner in which the Senator is interpreting it does not make sense and, therefore, one would reject that interpretation.
That is a rather weak argument for bad draftsmanship.
The Senator's amendment seems to me to be at fault at least in one instance.
This section relates to goods produced in a country specified in an order and the question is whether these are goods exported from another country and the Senator would have it exported from any other particular country. That does not cover the case where they are exported from the country where they are produced.
To be fair to myself I did endeavour to establish what was the purpose of this particular phraseology. My understanding of its purpose was that you might want to establish whether the goods were exported from a country other than the country in which they were produced and my amendment was directed towards what I understood to be the specific object of this particular phraseology. The Minister's statement here now is slightly different and I think it would be necessary to modify my amendment to meet the rather broader point he is making but I had reason to believe that what was involved was the question of goods being exported from a country other than the country in which they are produced. But if the Minister is concerned to establish where they were exported from rather than to tackle this particular case of goods exported from a country other than the country in which they were produced, I think the words I have now suggested would be better, that is to make it read:
"to determine whether the goods are goods produced in a country in an Order under this Act or from what country the goods are exported."
Perhaps in view of a certain amount of confusion the Minister might like, before Report Stage, to have another look at this.
I was about to suggest that.
I should like to thank the Minister for the way he has met most of our amendments. There is only one in relation to which we have been in flat conflict. The debate has been a useful and constructive one. If all Ministers were as willing to consider amendments, we would get good and useful work done in this House.
I thank the Senator but point out that in relation to the one on which we were completely in flat conflict I was, of course, right.