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FO-SCRIBHINN I.APPENDIX I.TIONOL DEN ROGHA-CHOISTE AR RIALACHA, ORDUITHE AGUS RIALACHAIN REACHTULA.MEETING OF SELECT COMMITTEE ON STATUTORY RULES, ORDERS AND REGULATIONS.(MIONTUAIRISCI NA FIANAISE).(MINUTES OF EVIDENCE).Dé Céadaoin, 12ú Eanáir, 1949.Wednesday, 12th January, 1949.Shuigh an Coiste 12.25 p.m. The Committee sat at 12.25 p.m. Comhaltaí i láthair:— An Seanadóir lúcás O Dubhthaigh (Cathaoirleach); An Seanadóir F. Háicín; An Seanadóir S. Bigear. Members present:— Senator L. J. Duffy (Chairman); Senator F. Hawkins: Senator J. W. Bigger. Glaodh ar Sheán Uas. O Broin, Rúnaí, an Roinn Talmhaíochta, agus crúdaíodh é. Sean Uas. O Broin, Secretary, Department of Agriculture, called and examined. 1. Chairman: We want your help Mr. O Broin, in relation to the Cream Order, 1948, S.I. No. 272 of 1948. We want to direct your attention in the first place to article 6 of that Order, which provides:— Article 5 of this Order shall not apply in relation to cream which is intended to be used for the manufacture of butter, and which is— (a) In a creamery or in the possession of the proprietor of a creamery, or (b) in the possession or in premises occupied by a person who obtained such cream from milk from his own cows, or (c) in the possession of or in premises occupied by a person, who, during the whole of the year 1947, was engaged in the business of manufacturing butter. It would appear to me from that that it is unlawful to have cream containing more than 10 per cent. of butter fat in a private house?—Technically it would mean that. 2. The word “premises” is not defined anywhere in this Order?—It is probably defined in the general Interpretation Act. 3. I think perhaps it is. I think the word “premises” would include a dwelling house?—Perhaps, Mr. Chairman, it would be advisable for me to explain briefly the purpose for which we originally introduced these Orders restricting the use of cream. The Order which is under discussion here is one of a series of Orders which began in 1944. There was a scarcity of milk in the Dublin area at that time and it was not thought proper that people should have the use of cream, or that milk should be diverted to the making of cream, when there was not sufficient milk for ordinary domestic use. The first of these Orders came into operation on the 17th January, 1944. It was practically in the same terms as the present Order. That Order of the 17th January, 1944, was revoked on the 28th February, 1944. It had only been in existence for a very short time when the acute shortage of milk began to pass and the position in regard to supplies of milk eased to some extent. When the position eased the Order was revoked. A similar Order was made in 1945. It became effective as from 17th January, 1945, and was revoked on the 26th February, 1945. In 1946 the position was reasonably satisfactory and there was no necessity to make any Order restricting the use of cream. In 1947 we again found it necessary to resort to this restrictive method and the Minister accordingly made an Order which came into effect on the 16th January, 1947, and was not revoked until the 1st May, 1947. 4. Are you correct in saying that Order was revoked on the 1st May, 1947? I thought that Order was not revoked until May, 1948?—Another Order was made subsequently in July, 1947. I should explain that all the previous Orders were directed towards conserving the supplies of milk for domestic householders mainly in the Dublin sales area. In July, 1947, we found it necessary to re-impose the Order for the purpose of conserving cream for the manufacture of butter. That Order was made on the 14th July, 1947, and continued in force until 1st May, 1948. It was then revoked. During last summer we became anxious as to the possibility of maintaining the butter ration. After considering the position the Minister thought it desirable to re-impose the Order on the 16th August, 1948. That is the Order which is under consideration here at the moment. Butter stocks are kept under constant review and just before Christmas we found that there was very little likelihood of going short of butter with the existing ration between then and the end of the season and we decided, therefore, to revoke the Order made on the 16th August, 1948. That is the history of the Orders. They are all drafted in the same terms. 5. Do you think it is a desirable form in which to make an Order? You take power under this Order to do something which, I think, you do not intend to do. You do not intend, for instance, to interfere with people having cream or using cream in their own homes. The milk might turn to cream without any action on their part?—I cannot conceive of any circumstances in which action would be taken against people in their own homes. The people with whom we are mainly concerned are the proprietors of creameries and the large milk wholesalers. There are some firms, too, which specialise in the sale of cream. We are concerned also with hotels and restaurants and a large number of retail shops which sell cream. Those are the people against whom we would take action. 6. Senator Bigger: One of our chief criticisms is that this Order automatically makes everyone in the country a lawbreaker. I have an inherent respect for the law. I would rather obey it if possible. Under this Order anybody who skims a spoonful of cream off the top of a jug of milk automatically breaks the law. Would it not be more satisfactory to modify that article in such a way as to make it apply to such people as have in their possession cream for sale or for the manufacture of any article intended for sale. I think we would be entirely in agreement with that part of the Order then. There is a very great difference in using cream for oneself, or for children, in a private house and selling it to someone else. 7. Chairman: That is the angle from which we view the matter. The intention of the Order was to prohibit the sale of cream commercially but the Order goes very much further than that and prohibits a private householder having cream in his own house, even though that cream might be there accidentally. The milk might go sour for instance. 8. Senator Bigger: The Order, as it stands, tends to bring the law into contempt because it makes a law which one cannot obey. From your point of view is there any objection to modifying the Order in such a way as to make it clear that it deals only with the sale of cream for commercial purposes or for the manufacture of goods for sale subsequently? That would bring in confectionery and so on?—The difficulty is that if we try to enumerate specifically the various categories, that enumeration may not be exhaustive and we might find ourselves in a helpless position. 9. Chairman: But you are going to the other extreme here by bringing in everybody. Would it not be possible to deal with cream in the same way as bread is dealt with? There is nothing to prevent me having all the bread I need or can eat in my own home but I am prohibited from having bread at the principal meal in a restaurant or hotel. There you have an enumeration on a sensible basis. 10. Senator Bigger: Surely, it should not be impossible to get everybody you want in and yet exclude the innocent. Ten per cent. cream is a very pourable cream. It is not until you get to twenty that you get a really thick cream?— There is no generally accepted definition of cream. 11. Ten per cent. cream is very good milk. Some milk only goes to five, or something like that?—The whole purpose of the Order was to give us authority to deal summarily with certain classes of persons. The purpose was explained fully in the Press and I do not think anybody could be under any misapprehension as to its intent. We have found in our experience that when one commences to refine in order to specify aims in greater detail one is very often placed in difficulty. I do not say that in certain circumstances the suggestion made here could not be carried out. In the present case, however, the Order is designed to meet an emergency condition and action thereunder must be taken in a summary way. The more handicaps one is tied by the more difficulty there is in fulfilling the purpose for which the Order is made. 12. Chairman: We realise you have to take these precautions in the public interest in order to safeguard the milk supply to the public but we do not see why at the same time you must do something which contravenes the liberty of the private citizen?—I do not think anybody could conceive of the Department, taking action against a private householder for having in his possession cream which he skimmed off of his milk supply. I think such action would be inconsistent with the whole purpose of the Order. The purpose of the Order is to safeguard the householder and ensure that he gets an adequate supply of milk 13. Senator Hawkins: Action against a private householder could be taken?— It could. The Minister would have to authorise action in a case like that, but I cannot imagine in this context any Minister authorising action of that sort. 14. Senator Bigger: One of the objects in establishing the Committee was to limit to some extent the power of Ministers and Departments. I am not suggesting that any Minister would be so foolish as to victimise anyone but this Order does give the Minister power, in theory if not in practice, if he has an edge on someone, to have an inspector going into his house or premises every day. I do not say this would be done, but it is wrong from the point of view of human. liberty for a Minister to have such power to interfere?—Yes, but does that not bring us back to the idea underlying the whole of the emergency legislation from the Emergency Powers Act of 1939 onwards? 15. Is this Order made under the Emergency Powers Act?—It is. The legislation gives the Minister practically carte blanche to do what he considers necessary in the public interest—that is, as I understand it. 16. Senator Hawkins: One of the purposes for which this Committee was set up is to see how far we as a body can suggest that infringements of individual rights such as this should not go any further. 17. Chairman: Mr. O Broin recognises this, that “emergency” connotes in the public mind something that happens in a hurry, something of short duration. But this Emergency Powers Act was enacted almost 10 years ago. I think we can pass on to the next aspect. 18. Senator Bigger: We have made this point, at any rate. Mr. O Broin: If we have to reimpose this Order, we will consider that aspect. 19. Chairman: We will now pass to Article 7 which says:— In a prosecution for an offence consisting of a contravention of Article 4 or Article 5 of this Order, the Court shall presume, unless the contrary is shown by the defendant, that the cream in relation to which the prosecution is brought contained more than ten per cent. by weight of butter fat. It seems to me that what is being laid down there is that, if a prosecution is brought against a person alleged to have cream unlawfully in his possession, the court shall assume that this is cream within the meaning of this Order unless the contrary is proved?—Yes. 20. To prove the contrary, I take it the defendant must have an analysis made by a public analyst of the cream which is the subject of the offence?—I daresay that would be one of the methods by which he would satisfy the court that what he had was not cream within the meaning of the Order. 21. Senator Bigger: Then the person is guilty until he proves himself innocent, which is the reverse of the ordinary procedure?—Yes. 22. Chairman: The Seanad is particularly jealous of this principle, that nobody is guilty unless he is proved guilty. This Article in the Order is in conflict with that conception?—We looked at it from the point of view that if one of our inspectors found cream, say, in a restaurant everybody would know it was cream. 23. Senator Bigger: Some of the synthetic creams are a very good imitation? —In consistency that would be so, but in colour and general appearance everybody would know the difference. If we have to prove it is cream we tie our hands. 24. Take a prosecution against someone for selling butter with too much moisture. The sample is divided into three parts?—Yes, that is the procedure under the Food and Drugs Acts. 25. The analysis is carried out by the prosecution?—It is a rather elaborate procedure and it would be the only other course if we were to be forbidden to act as provided in the Order. 26. You had not to make any analysis if this Order was legal?—The alternative to this procedure would be what is laid down in the Food and Drugs Acts. The sample would have to be divided, sent to an analyst and there would be the possibility of a counter analysis by another analyst and the court might not finally settle the case; it might be appealed. 27. It is a matter of the general principle more than the details that you are concerned with?—We are concerned with the practicability of pursuing the alternative procedure. We would always be under the necessity of taking action quickly. If we had to follow the procedure under the Food and Drugs Acts it would take so long that by the time the chain of events was completed the damage that this Order was intended to prevent would have occurred. We would not take a prosecution unless we were sure that the commodity was cream. 28. Chairman: If a prosecution is brought against a restaurant for having in use something which the prosecutor says is cream within the meaning of this Order the court is bound to assume it is cream unless the contrary is proved? —Unless the defendant produces some evidence that it was not. 29. He must prove it is not cream?—He would have to produce evidence to the satisfaction of the court. 30. Senator Bigger: It is not even necessary for the Department to prove it was cream?—No, it is not. If the Department has to prove that the substance is cream I do not see that there would be any alternative to the procedure laid down under the Food and Drugs Acts. 31. That is the right procedure?—That procedure might possibly last so long that we could not take summary action. 32. If the three samples are impounded your prosecution need not come for a month; you are still capable of proving your case with the samples taken. If someone breaks the law and a sample is taken he will not go on breaking the law the next day. Have there been any prosecutions?—No, there have been no prosecutions. The fact that we have made the Orders has proved an effective warning. 33. There is an air of legal process about the whole proceedings?—There have been no proceedings. Up to now, when we made the Orders, people made up their minds to stop selling cream. There has been no prosecution. 34. Taking a sample is quite enough as a deterrent?—There has, so far as I know, been no sampling. 35. Senator Hawkins: You put the onus on the defendant to prove he did not commit an offence. Once you intimate that proceedings will be taken, whether you put the onus on a person or on the State the effect is the same? 36. Senator Bigger: It is always the threat that is effective?—I do not know that the threat would always be sufficient in a case like that. The main purpose of this Order has been to conserve milk for more essential purposes than the provision of cream. 37. Chairman: You achieve that purpose by the mere publication that an Order has been made?—We have so far achieved that. 38. Senator Bigger: What notice is given to the public?—We always put advertisements in the papers. 39. Merely that there is an order prohibiting the sale of cream?—Yes. I imagine that quite a lot of people never see the order, but we must have an order there that we can use effectively, if necessary. 40. Chairman: There is a very vital interest at stake, the old principle that the person is not guilty of an offence until it is proven against him. 41. Senator Bigger: If this Order were kept alive year after year it might be accepted as a precedent that such an Order existed and had never been challenged?—I do not know that there would be much in that contention. 42. Chairman: We have had the experience of a Bill being introduced containing a similar provision so you can see how far this little habit spreads. That is what the Seanad is afraid of, that a practice of this kind would take root?— So far as our Department is concerned it is with the greatest reluctance we make these cream orders because our purpose is to encourage the production of milk and cream and other dairy produce. The more of such produce is consumed the better. It was only when we were in a difficulty that we fell back on this order. We had to make it effective so that it would be possible to produce results without any considerable delays. 42. Have you considered whether there is any lawful authority for the provision in Article 7 of the Order?—These orders were drafted by the Parliamentary Draftsman and we assume that the Orders are legal. We have no legal people in our Department. 43. You simply put up the type of draft you want?—We tell the Draftsman that we want an Order to do such and such a thing and he drafts what we want. 44. Senator Bigger: In Article 8 the word “cream” is used and it has not been defined so far as I can see in the Order. In Articles 4, 5 and 7, the Order talks about cream containing more than ten per cent. by weight of butter fat but here it merely talks about cream that is kept. You are going further in Article 8 than anywhere else in the Order. 45. Chairman: Article 8 gives power to an authorised officer to enter premises in which he suspects that cream is kept?—There may be no cream at all there. 46. Senator Bigger: But he may have reasonable grounds for suspecting there is cream?—In all these cases it may be assumed that we act in a reasonable way. 47. Senator Bigger: From the legal point of view it is a very dangerous precedent. I am quite sure you are not going to bring prosecutions but it does leave a loop-hole for abuse. 48. Chairman: I am rather concerned with Article 7. I gather from you that you simply put up to the draftsman a request for an Order that will give you certain powers?—Yes. 49. And then the draftsman proceeds to make the Order. You are not concerned whether it is a good Order or a bad one?—We assume that the draftsman’s advice is the best. 50. Senator Bigger: Is the draftsman one of the Parliamentary Draftsmen?— Yes. He is a member of the Attorney-General’s Department and we assume that the Order we get is sound from the legal point of view. 51. Senator Hawkins: You are not interested in that end of it?—We are interested in it but we are not the authorities on that aspect of the matter. We have to defer to the Attorney-General and his Department in all matters relating to law. 52. Chairman: I do not think there is anything else we can ask Mr. O Broin. 53. Senator Bigger: Only one point on Article 8 remains, viz. this large number of people who are authorised to enter premises. Again if “premises” were a little more strictly defined we would not mind that. 54. Chairman: We now know the facts and we are very much obliged to Mr. O Broin for his assistance. Mr. O Broin withdrew. |
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