Seanad Éireann díospóireacht -
Wednesday, 17 Feb 1971

Vol. 69 No. 8

Fuels (Control of Supplies) Bill, 1971: Report and Final Stages.

Mr. Alexis FitzGerald

I move amendment No. 1:

In page 3, between lines 9 and 10, to insert the following new section:—

"()—(1) There shall, by virtue of this section, be established a committee to be known as Coiste Comhairle Breoslai (in this section referred to as ‘the committee') to perform the functions assigned to it by this section.

(2) The committee shall, in addition to any other functions assigned to it by the Minister, have the following general functions—

(a) to advise the Minister on State fuel policy and matters connected therewith,

(b) to keep itself informed concerning all aspects of the production, supply and distribution of fuel in all parts of the world and development of and research for and upon substitutes for fuel now in use in industry, agriculture, commerce, transport and by private consumers,

(c) to advise in the formulation of a State policy for the coordination of the utilisation of fuel in industry, agriculture, commerce, transport and by private consumers.

(3) The committee may do all such other things as arise out of or are consequential on the functions assigned to the committee by or under this section.

(4) The Minister shall appoint the committee which shall consist of not less than ten nor more than 20 persons and shall determine the period for which the committee shall hold office.

(5) In making an order under this section the Minister may prescribe conditions and the committee shall comply with such conditions.

(6) The committee to be appointed by the Minister shall include representatives of the producers, suppliers, distributors, researchers upon and users of fuel.

(7) The Minister may by order bring this section into operation notwithstanding that the Government has not made an order under subsection (1) of section 2.

(8) The Minister may by order revoke or amend an order made under this section.

I do not propose to say very much about this amendment because I have already argued on both Second Reading and Committee Stage for the establishment of such a committee. I wish to summarise my position on it and perhaps direct the Minister's attention in particular to subsection (7) in relation to this advisory body. I am told that my Irish description of the proposed committee is not correct; the person who told me so said that this really only qualified it for the Irish naming of a statutory body, that it had to have some slight defect in it to be right. However, I do not know whether this is fair.

The general thinking is that we should bring together for the benefit of the Minister all the different bodies that are concerned with fuel. Events which have occurred and reports that have been made since this debate began in the Seanad only emphasise the view which I expressed on the Second Reading—that we are facing not a possible crisis which is likely to disappear quickly but a long period which will be critical. I am thinking in terms of ten years rather than two years. There are all sorts of possible political conditions which can exacerbate this present situation. If I may make a general comment in regard to the way we conduct our affairs, I think we would find in the Common Market countries that Departments and State bodies tend to pursue their own independent lines without sufficient effort being made to cohere all the lines to make a unified policy. The advisers to the Minister would find it of benefit if they were being advised by a body of people who know all about the planning of our industry—representatives of industrial development authorities as well as the Department of Industry and Commerce, people like CIE who pursue their own policy with regard to transport, people in the Department of Local Government who pursue their own policy with regard to road construction and the utilisation of road transport and so on, the ESB, the Gas Company, all the oil companies and the coal importers. If all these people were thinking ahead for the bad day when the Minister would be advising his colleagues, presumably in the Government, that the Government must make an order under section 2 declaring that the crisis had come, every kind of contingency would be considered. If the representatives of industry were meeting the representatives of the fuel importers and the oil companies, each would be likely to suggest trains of thought to each other which would be of benefit in meeting the different contingencies and in thinking up the kind of provisions that ought to be made for them.

There is no Government amendment before us. I find this depressing, because I would not advise the Minister to accept the amendment I have put down myself. Someone in Parliament to whom I spoke about this said he just put down an amendment and told the House that he was not the parliamentary draftsman, nor was he being paid for being such. Neither am I the parliamentary draftsman, nor being paid for being such. I have tried to express here the idea of the sort of body that ought to be there and the sort of powers that I think the Minister should take with regard to it. It is not possible at this stage to expect him to come up with an amendment in substitution for what Senator Russell and I have put down, but he has the Dáil to look forward to and I would press him to give thought to this, and if I may say so, as I have done before putting down this amendment, to consult with people who are concerned with the planning of industry and these various interests. Quite a number of those to whom I have spoken see great merit in a body of this kind which would have a purely advisory function and which would come into existence whenever the Minister wanted to bring it into existence, but which I should have thought he would bring into existence as soon as he decided who were the right persons. I should have mentioned, not merely industry but farming also because that aspect of it is there to be represented too. I have no more to say on that.

Mr. O'Higgins

I should like to say a word in support of this. Senator FitzGerald is perhaps being very modest when he speaks about the drafting of this amendment. This, to me, is an excellent amendment and an excellently drafted one. I cannot see that it would, in any way, clog the operation of the Minister or the Government under the Bill if it were to be accepted. I am not suggesting this as a device to the Minister, but it is clear from the amendment that there is no question of Senator FitzGerald or anyone else trying to force the Minister's hand to bring into being a body of this description if it is not wanted or when it is not wanted. Discretion is given to the Minister under the terms of the amendment as to when such a body might come into being. Having said that, I could agree entirely with the remarks of Senator FitzGerald as regards the desirability of having this body and of having this body now. The Minister has already pointed out very clearly that the Bill is in the nature of a precautionary measure. He hoped that it would not be necessary to invoke its provisions at all, but that in the kind of war or near-war situation and certainly the acute scarcity situation which was envisaged that it was desirable to have the powers contained in the Bill.

The kind of body which is suggested by Senator FitzGerald in this amendment would, I think, be useful to the Minister not only in the conditions which the Minister envisages—possibly it would be less useful to him in those conditions than in more normal conditions—but with the prospect of the type of condition occurring that the Minister envisages, it certainly would seem that, before it occurs, a body of this sort could be of very great use in advising the Minister and his Department. The suggestion is that they should be purely an advisory consultative type of body and that they should advise on questions of State fuel policy. I do not want to indulge in anything which would seem to be contentious in urging this amendment, but I think there is a feeling held by some that it is necessary there should be, and known to be, a State fuel policy when a situation, such as the Bill, as it stands, is designed to meet, might arise. It seems to me desirable that in framing and in pursuing a State policy on fuel, it is not only a question which should concern the Minister, as the political head of his Department, and his civil servants: it is a question of vital concern to the ordinary consumer and of vital concern to the people engaged in industry as well as those engaged in the business of fuel production or importation or trading in fuels and I would urge the Minister to accept the amendment as it stands.

Mr. B. Lenihan

I am against this amendment. I will have a look at it between now and the Dáil, but the arguments against it are quite substantial. First of all, it is superfluous. I and my officials have regular discussions with the various fuel interests in the country. There is a specific fuel and power division in my Department. That division is in daily communication with coal importers, oil interests and the various power operators directly under my control, such as Bord na Móna and the ESB, and also CIE, which has also a substantial store of fuel. All of these bodies are directly under the aegis of my Department. As I say, there is regular contact maintained with the private interests, primarily the oil and coal importing interests in this country. In addition, we are members of OECD and, as such, we are members not alone of the specialised oil committee of OECD but of the more general energy committee of that body. Each of these committees meet at least twice a year and there is a wide exchange of information and advice. Therefore, there is almost day to day contact between this section of my Department and the various national and international interests concerned. We are at the moment negotiating with the oil interests with a view to increasing stock supply. At the moment we have stock levels held at a level of two months supply, as far as the State is concerned, by arrangement with the oil interests— Gulf Oil in Bantry, the other oil companies and the oil refinery in Cork. In addition, the ESB and CIE have special stocks for their own use with a three months supply limit. Just now we are negotiating with the oil interests to increase that supply level above the two months supply, and all OECD countries are doing this at the present time with the various oil interests.

During the winter there was danger of a coal shortage by reason of the diminished coal production situation in Europe and Britain and America and we had regular meetings and discussions with representatives of Irish Coal Importers Limited and we revised our arrangements with Poland as the main current supplier to us. In these circumstances I do not see what is to be gained by having a committee of the kind proposed in the amendment, because I can assure the House that there is constantly the closest degree of discussion, negotiation, and communication in this particular region— and rightly so because it is such a vital area. The whole question of fuel and power is basic to the community. It is so vital that there is, as I say, a specific division in my Department concerned with it. At any time of difficulty, such as the coal crisis that was likely to loom up before Christmas and the oil crisis that was recently with us, I personally am in constant communication with the officers concerned and get regular reports on the whole position.

The big difficulty in stockpiling, of course, particularly in regard to oil, is the cost. I might mention to the Seanad, as a matter of interest, that it costs at least £6 million to store one month's supply of oil alone. For that reason it is out of the question for the State to supply storage capacity. What we are doing is making arrangements now with the oil companies to lift the percentage of oil on constant storage here so as to go well above the two months with which we have been content for some years. We want to get over three months supply as a minimum, if possible.

In addition to what I have said just now I can, if I want to, at any stage set up such an ad hoc committee. I do not see any particular reason why it should be incorporated in a statute. There is no reason in the wide earthly world, if I am not satisfied about the degree of communication existing between my Department and the fuel and power industry generally, why I cannot set up this sort of body myself. I do not require the authorisation of statute to do so. So then, all in all, I do not see the necessity for this amendment. While it is worthy enough that such a committee should be established and, if necessary, as I say, I will establish it, I think it is superfluous to incorporate it in this statute. I do not like incorporating superfluous or redundant matters in legislation, especially matters that can be dealt with in an administrative way. I can establish this committee administratively and there is no need for a section in this Bill. The Bill, essentially, is a straightforward, emergency Bill, designed as a precaution in the event of the community being endangered. It enables me to take immediate action in a drastic manner to preserve and conserve and organise fuel supplies for the community in a state of emergency. I do not like clogging up the Bill with anything else. It is a simple, plain, surgical, straightforward type of measure, designed for an emergency situation. I can consult with anybody and everybody, set up all the bodies in the world that I like outside the statute, if required. I would dislike cluttering up the Bill with a section of this kind, although the sentiments expressed in the section are admirable and indeed in a given situation such a committee might be necessary, but I do not think it needs any statutory authorisation.

Mr. Alexis FitzGerald

To take what the Minister has said just now of course it is completely correct that he has this power to establish the committee ad hoc without requiring this statute to give him that power. However, one thinks of bodies that did start off as ad hoc bodies. For example, the Industrial Development Authority which was in operation for, I think, a year before the Industrial Development Authority Bill was enacted. There must be some administrative or other reasons why it is found desirable in some cases, at least, and in many cases, I think, to follow the creation of an ad hoc body by a Bill which gives it statutory authority. I do not know how the matter of fees, for example, is dealt with. There is probably some general power which would enable the Minister to pay on an ad hoc basis for the expenses of the body set up.

There is one point which I might have made when introducing this amendment and which I think I should now make. It arises out of the Minister's reply, also. I understand that as a result of the very difficult situation which is emerging, not merely in Europe but all over the world where there is need for fuel, a great deal of research is being done on substitutes for existing fuels. There may well be, within the Minister's Department, persons with scientific training who keep themselves informed on the development of these substitutes. One wonders if the very excellent Institute for Industrial Research and Standards is among the bodies with which his Department is in close touch. I am thinking of a critical situation arising, perhaps, in two years time when knowledge of this kind should be available to the Minister who will have to make the decisions. He did not mention liaison with the Industrial Development Authority. I do not know if the normal communications which should exist between the Department of Industry and Commerce and his own Department would mean that the section of his Department is kept informed daily —to use his own words—about the development of industry in this country. I do not know the relationship between the Industrial Development Authority and the Department of Industry and Commerce with regard to the communications that take place between them or the constancy of these communications. Is contact kept with the Export Promotion Board, which will be concerned with the application of the policy for establishing priorities, if this difficulty arises? Nothing but good can come from the Minister's having a body empowered—if he wishes to empower it in a suitable amendment to my amendment—to keep him and his advisers—and taking some of the load from them—informed of the current situation with regard to supply. The Agricultural Institute is another body which could help here. I imagine that that section of the Department is very busy indeed and may not have time—just to think of Devlin again—to do that kind of long-term policy-planning which will have regard not merely to the immediate likelihood of the procurement of fuel but to the long-term supply and demand trends of different types of it. Is there correlation between, for example, the planned growth of industry and the planned requirement of fuel? One knows that the ESB has such a plan. Is it kept informed and, if so, in what fashion? There ought to be a body of this kind. I recommend this to the House. It is encouraging that the Minister will consider the matter before introducing it in the other House.

Amendment, by leave, withdrawn.

An Leas-Chathaoirleach

Does the House wish to deal with the remaining Government amendments?

Mr. B. Lenihan

They are all amendments in which I am meeting points of view put forward by Senators on the Second Stage.

Mr. Sheldon

I want to ensure it is only the Report Stage that we shall conclude and not all Stages.

Government amendment No. 2:

In page 4, between lines 25 and 26 to insert the following subsection: (4) Every direction given orally shall be confirmed in writing not later than four days after the day on which it is so given.

Mr. B. Lenihan

Senator FitzGerald was worried—and other Senators were, too—as to whether an oral direction would be effective and give rise to prosecutions. The view was put forward that this would be an undesirable way to base a prosecution against any individual or firm.

Mr. O'Higgins

I think the amendment meets the point.

Mr. Alexis FitzGerald

Would the Minister consider inserting the following words—having regard to the postal strike in Britain—"delivered to the person to whom the direction was given" after "writing"? What happens if there is a postal strike here and the person does not get it? It has been sent out.

Mr. B. Lenihan

The amendment is suggested apparently from the point of view of a prosecution——

Mr. Alexis FitzGerald

It is intended to meet the point.

Mr. B. Lenihan

A document would be in existence.

Mr. O'Higgins

That there would be a document.

Mr. B. Lenihan

Yes.

Mr. Alexis FitzGerald

All right.

Mr. Sheldon

Could a prosecution actually be set in motion before the confirmation arrived? This would bring us back to the objection to an oral direction. The fact that it was later confirmed does not necessarily protect anyone.

Mr. B. Lenihan

It must go but not later than four days after the day on which it was given. I thought the tenor of the criticism of the Seanad was not so much of the oral direction—it is accepted that an oral direction might be necessary in an emergency situation —as that it was felt it would be undesirable—and I agree with this view —that such an oral direction would be the basis on which a subsequent prosecution might be taken. The view was put forward that any such oral direction which might be necessary in a given situation should be confirmed subsequently in writing. A document would be in existence which would, in fact, confirm that an oral direction had been given.

Ruairí Brugha

There is no problem if there is a postal strike. This is a small country. It can be delivered by hand.

Mr. O'Higgins

In any event, the prosecution would either have to bring the Minister to court——

An Leas-Chathaoirleach

I wonder if Senators have forgotten that we are on Report Stage or think we have adjourned for tea. The tone is very conversational.

Mr. O'Higgins

I am really only interrupting. The prosecution will either have to bring the Minister to court or produce the written confirmation.

Amendment agreed to.

An Leas-Chathaoirleach

Amendments Nos. 3 and 4 are related. It is suggested that they be taken together.

Government amendment No. 3:

In page 4, lines 28 and 29, to delete "(whether by act or omission)".

Mr. B. Lenihan

These words appear in subsections (1) and (3). The deletion of these words was suggested during the Committee Stage debate.

Amendment agreed to.

Government amendment No. 4:

In page 4, line 39, to delete "(whether by act or omission)".

Amendment agreed to.

An Leas-Chathaoirleach

Amendments Nos. 5 and 6 are to be debated together, amendment No. 6 being consequential on amendment No. 5.

Government amendment No. 5:

In page 5, lines 11 and 12, to delete "any goods or chattels" and substitute "any personal chattels".

Mr. B. Lenihan

Senator FitzGerald, Senator O'Higgins and some other Senator raised this particular point. I feel that "personal chattels" is better phraseology in the circumstances than the phraseology that was there—"goods or chattels". It is quite certain what "personal chattels" means. It was not quite so certain what the previous definition meant, although they are intended to mean the same thing.

Mr. O'Higgins

The point involved here is that the section as it stood might enable an order to be made which would have the effect of forfeiting leasehold property, for example. As long as the Minister is satisfied that this amendment now precludes that possibility I think he has met the point.

Mr. B. Lenihan

It is quite clear now that "goods or chattels" could have been interpreted, being so wide, to comprise leasehold property. It is quite clear that "personal chattels" could not.

Amendment agreed to.

Government amendment No. 6:

In page 5, line 13, to delete "goods or" and substitute "personal".

Amendment agreed to.

Bill, as amended, received for Final Consideration.

Business suspended at 6.10 p.m. and resumed at 7.45 p.m.

Question proposed: "That the Bill do now pass."

Mr. Sheldon

I should like to congratulate the Minister on this Bill in the sense that it is pleasant to find the Minister and the Government taking time by the forelock and being ready for this type of emergency rather than being faced with something else to deal with the emergency when it actually happened. I should also like to congratulate the Minister on his whole approach to the Bill and the remarks made on it by Members of the Seanad.

In the ordinary way, when a Bill reaches this stage in the Seanad, there is little one can do except to pass polite or rude remarks according to one's opinion of the Bill. In this case, with a Bill introduced in the Seanad which has still to appear in the other House, I should like to make a few remarks on the way some of its provisions are expressed and suggest that the Minister might take the opportunity to make some changes.

In section 3 (2) provisions are mentioned in an order under the Bill. These include the power to grant or issue such authorisations or licences and to give such directions as shall appear to the Minister to be necessary. It is quite clear from this subsection of section 3 that a direction is a provision. The reason I mention this is that in section 4 (1) and subsection (3) provisions and directions are separated. I suggest to the Minister that it is not necessary in section 4 to say, as in subsection (1) "or in a direction" because a direction is a provision. As the Minister will have noticed during the debate, people are a bit wary of directions. Where it is not necessary to emphasise the fact that a direction may be made, it would seem wiser to leave the word out. If the Minister wishes to emphasise the fact that a direction may be given in an order, I would suggest that, in section 4, a slight change should be made in both subsection (1) and subsection (3). Each one reads now: "contravening a provision in an order made by the Minister under this Act or in a direction". One would think, from the phrasing, that a direction was something other than something made under the Act. If the Minister will not take out the word "direction" altogether, I suggest it would be wise to say, instead of what is in the section, "a provision for direction in an order made by the Minister under the Act". It would then be clear that the direction referred to was the type of direction mentioned in section 3.

I am all for complete clarity and the avoidance of annoying people with something which looks slightly vague or might give the idea that the Minister had something else in his mind other than the directions mentioned in section 3.

Section 8 is a curious section. It says: "The powers conferred on the Minister by this Act shall be in addition to and not in derogation of any other powers exercisable by the Minister." What precisely that means, or what types of other powers which the Minister has which this Act might interfere with, I do not know. It is a bit like the sort of verbiage that lawyers in general, and parliamentary draftsmen in particular, are fond of shoving into things. For a while, it was quite customary in statutory instruments to provide that the Minister was acting by virtue of the power under section so-and-so of such-and-such an Act and then they went on to say "or in each and every other power thereby enabling", or some such phrase, which did not really mean anything. Gradually the Statutory Instruments Committee persuaded Departments to abandon this unnecessary verbiage. One or two bodies still persist but they are of a type who do not often make statutory instruments and probably, in between, they forget. The committee always takes care to remind them that this is unnecessary.

This seems to me to be rather similar. I should have thought the powers conferred on the Minister in the Act were perfectly clear. To say that they are in addition to whatever other powers he has, whatever they may be, seems unnecessary. It is also vague. Here is a measure which, when it is brought into force by the Minister, would be fairly draconian in nature and could interfere greatly with the normal transaction of business. It ought to be clear what precisely the Minister is doing. He should not suddenly out of his hat or his sleeve produce some other power which no one quite noticed might apply to the supply of fuels.

The Minister should take another look at these things and, if he thinks it is wise, take the opportunity of going to the other House with the Bill. Someone suggested the Minister was welcoming the idea of appearing in the other House with the Bill. This, I think, is probably going a bit too far. It does provide him with the opportunity of presenting the Dáil with a Bill which at least is partially processed and not just in the raw state in which the parliamentary draftsman normally leaves one.

Mr. B. Lenihan

It is always refreshing to hear Senator Sheldon who has been carrying on a gallant running battle with the parliamentary draftsman over a number of years both in this and the other House. In regard to section 3, I think "direction" is the appropriate word there because this section is, if you like, the real meat in the whole Bill.

Mr. Sheldon

It is a provision.

Mr. B. Lenihan

I see the point. Clarification of "direction" and "provision" is certainly worth consideration. The Senator suggests "direction or provision."

Mr. Sheldon

No. May I clarify it? I am suggesting, if the Minister wishes, in section 4(1) and subsection (3), to keep in the word "direction," which I think is necessary, but it should be in a different place in the sentence. It should be "a provision or direction" in that order.

Mr. B. Lenihan

That is right. That is reasonable. I shall certainly consider that between now and the Dáil. It is properly set out in section 3 but if "provision or direction" is included in subsection (1) of section 4, it flows then from section 3: it followed on logically. Is this the Senator's point? I shall certainly bring that to the draftsman's choice. It appears to me to be logical; I agree.

Section 8 is a saver section. In case any of the provisions in this Bill might be thought to take from the provisions in the other Acts—the Gas Acts, the Electricity Supply Acts—it is made quite clear that the powers conferred on the Minister in this statute are in addition to and not in derogation of powers exercisable by the Minister under other Acts. I agree with the Senator. He knows quite well what is involved. One could say it is a lazy man's way out of it. This is probably the Senator's point. However, it does ensure that existing legislation, particularly legislation along the lines I have mentioned—the Gas and ESB provisions—is not in any way taken from by what is here. I do not see any reason why it does. However, it is just a saver section in the event of any legal or court interpretation finding that some of the powers here take from, derogate, powers exercisable by the Minister under the other Acts. Lest that interpretation is taken by the courts or by legal advisers, this section makes it quite clear that that is not so. It is spelled out precisely and specifically that the powers are in addition to, and not in derogation of, powers exercisable by the Minister particularly under the Acts I have mentioned which are largely the pertinent ones.

Certain powers for the control of these basic commodities already exist under statutes relating to both gas and electricity. We want to retain those powers. We want to make it quite plain to the legal people and to the courts that anything that is conferred on the Minister in this Bill is in addition to the powers in relation to the other Acts and that nothing in this Bill takes from those powers. This is the reason Senator Sheldon argues that, if we are precise in our drafting, there should be no need for this section. That is roughly the tenor of what he has said. It is a saver section to make sure that the courts or the legal people do not hop on something that could infer that, in some way, we are diminishing powers already given by statute and exercised under existing law.

I shall certainly look at the other point and clean up the drafting there in regard to subsection (1) of section 4. The best way to do it is probably as the Senator suggests, namely, to add in "or direction" after "provision".

Question put and agreed to.

Bill to be sent to the Dáil.