Committee Reports > List of Committees > Seanad > 1966 > Select Committee on Statutory Instruments > Report No. 03 - Statutory Instruments [7]

MIONTUAIRISCÍ NA FIANAISE

(MINUTES OF EVIDENCE)

Dé Céadaoin, 14 Nollaig, 1966.

Wednesday, 14th December, 1966.

The Committee met at 4.30 p.m.

CENTRAL BANK AMENDING SUPERANNUATION SCHEME.

Miss M. Bhreathnach and Mr. S. Healy (An Roinn Airgeadais) called and examined

1. Chairman.—The first query I have is very wide but one which I think is very germane to the whole purpose of this business. It is one concerning the intention of this Instrument. Is it intended that any future amendment of the Pensions Increase Act and any regulations made by the Minister will automatically apply to the Governors, officers and staff of the Central Bank?

Mr. Healy.—Yes.

So that there will not be in future amending schemes of this kind?—It is not visualised that there would be. That would, of course, depend to some extent upon the provisions of any future pensions increase legislation but as things stand the intention is that the pension increase provisions for the Civil Service would apply to the officers and servants and Governors of the Central Bank.

2. But the point arises that the Central Bank Act of 1961 provides for an amendment of the Governors’ scheme from time to time so that one might expect that any changes in the pension rates of the Governors would be effected by an amending scheme made by the Bank as the need arose?—I think the point about pension increases is that you do not change the basic terms upon which the pension was awarded whether eightieths or sixtieths, or whatever else it might be. The pension increases are increases in pensions already payable and various methods are used to assess the apropriate amount of the increase but the original terms of the superannuation award are not altered. For example, if you give a percentage increase in pension say, ten or five per cent, the pension is increased by that amount but the original manner in which the pension was awarded remains as it was at the time of the award.

3. Which statutory authority are you relying on for that?—I should mention that this scheme was prepared by the Central Bank in accordance with statute with, I understand, the advice of its legal department and senior counsel. They are relying on the provision in the 1961 Act to make this regulation here to apply the pension increases to the Governors.

What you are really saying, to put it this way, is that an increase is not an amendment. You are drawing a distinction between an increase in pension and an amendment of a scheme?—You could, to that extent, draw that distinction, yes.

4. So far I have not been able to see this referred to and in fact I would have thought that section 30 of the Pensions (Increase) Act of 1964 would be against you on that point. That Act which provides for increases only to employees gives rise to another point at issue between us. I do not think that the Governor of the Bank is an employee of the Bank?—I think this point is relevant. Up to the present the Bank have been applying the pensions increases of the Civil Service to their officers and servants. No question has been raised as to whether they had authority to do that. It was accepted that they had. As you may know, the Central Bank accounts are audited by the Comptroller and Auditor General and he has not queried anything of that kind. There is a pretty close link between the Central Bank superannuation and Civil Service superannuation. The funds of the Central Bank are declared to be public funds and the original statutes governing the Central Bank provide for the granting of superannuation awards in accordance with the Superannuation Acts. It may have been because of this closeness and the fact that the Bank did apply precisely what the Civil Service was giving to its pensioners that this was considered all right that they could do so but, following the 1964 Act, the Bank, it seems, got some doubts about this and decided to make this scheme to provide themselves with specific authority to apply these increases. As regards your question about the Governor, the Bank assured us that section 2 (1) of the Central Bank Act of 1961 authorises them to make an amending scheme in relation to the Governor.

5. Senator Sheehy Skeffington.—Do I understand you to say that the Central Bank decided to devise a new scheme in order to provide themselves with the authority? Have they power to do that?

Mr. Healy.—In relation to which group?

Senator Sheehy Skeffington.—In relation to the Governors?

Mr. Healy.—You do realise, I think, that the Central Bank is independent in many respects. For example, in pay matters and staffing. One of the Governors did not have his superannuation in the manner of Civil Service superannuation terms. He was one of the first, or the first Governor, and he had a pension in different terms from what he would have had under the Superannuation Acts. His pension could not be increased to follow the pattern of increases because he was not allied to the Civil Service type of superannuation and the Bank having held very closely indeed to the Civil Service terms and to the method of increasing Civil Service pensions, did not increase the pension of that Governor because of the difference between his type of pension and the Civil Service type of pension. So that, in conjunction with the 1964 Act, probably led them around to the conclusion that they had to make this scheme to provide specific authority to cover the increases in pension to the first Governor.

6. Chairman.—I take it that this is quite definite—it is section 2 of the Central Bank Act of 1961 on which you are relying?

Mr. Healy.—Primarily, yes. You might argue this also if you had to come around to it: the Governor of the Central Bank is paid a salary and a pensionable salary at that. If you wished to draw an analogy between him and a managing director, who might be a member of a firm, you could do so. In a sense you could argue that being paid a substantial salary, he is an employee. The Central Bank is a corporation and therefore is an entity itself. The Governor is paid quite a substantial salary, and is pensionable, and can be held to be paid for services as an employee or as a person who serves. Section 30 (1) of the Pensions (Increase) Act provides, among other things, for schemes for the increase of pensions payable to persons who have retired from a board or body. Approaching it in the sense I have mentioned, you could hold that the Governor is a person who has received an increase in pension for services he has rendered.

7. Chairman.—Subsection (1) (a) of section 30 goes a bit further than that because it makes it retrospective.

Mr. Healy.—I should think so.

8. Chairman.—In the opinion of the Department, the Governor is an employee and, therefore, the Act of 1964 fully covers this point?

Mr. Healy.—The Bank has assured us that they are relying on section 2 (1) of the Act of 1961. They had legal advice on this. The other is an additional leg of the argument you could produce. There is no real reason why, having regard to the extremely close link between the pension provisions of the Central Bank and those of the Civil Service, the same benefits should not apply to the officers and servants, including the Governors, of the Central Bank, as apply to the Civil Service.

9. Chairman.—I am just not clear. The Central Bank Act, 1961, is not specific about the position of a Governor. The Bank is referred to as a body corporate, not a corporation sole, and it is stated that the Bank shall be conducted and managed by a Board of Directors of (a) Governor, (b) certain Directors and (c) the Board of the Bank.

Mr. Healy.—They are managing the Bank.

Chairman.—Yes, they manage. How far is management an employee? It seems to be a very tenuous point.

Mr. Healy.—That is an argument that could be produced. If you go to that limit I think we would end up in getting legal advice in the matter. The Central Bank hold by section 2 (1) of the Central Bank Act, 1961, for their part in making the scheme in respect of the Governor.

10. Senator O’Kennedy.—I would agree with the point made by the witness that a member of the Board, speaking from analogy, can also be an employee. In terms of managing director he has dual capacity as member of the Governing Board and also due to the structure of the Governing Board, he has fixed employment as such. I do not think there is an essentail contradiction involved. There are two capacities vested in the same person.

11. Chairman.—What concerns me is that in future, I take it, pensions to people in the Central Bank will be based on Civil Service pension increases but will not be shown as such. When the Houses agree to pension increases by way of ameding legislation, will they be aware of the fact that what they are agreeing to is more than Civil Service pension increases?

Mr. Healy.—That is true. You could, I suppose, make fresh regulations every time, applying something on these lines. There could possibly be an improvement on this drafting which is the first scheme put up to us applying the Pensions (Increase) Acts, to pensioners, staff and Governors. By doing it in this fashion we are, in fact, restricting the Central Bank. Section 30 (1) of the Pensions (Increase) Act, 1964 enables any board or other body to make schemes giving increases to persons who have retired, but it does not say that those increases should be restricted to the limit in the preceding part of that Act. For example, the Central Bank might make a particular scheme to give increases to Governors and to their staff which would provide bigger increases than were provided for the public service generally. One does not know that that would not be accepted. As no such scheme has been made, they cannot exceed what is authorised for the public service. If the Oireachtas accepts certain provisions for the public service, there would be little objection to applying them to a body such as the Central Bank, as not being in excess of these provisions.

12. Chairman.—In regard to schemes for officers and servants, is it contended that an addition can be made by virtue of section 15 (1) of the Interpretation Act, 1937? Schemes are not referred to in subsection (3) of that section which deals with regulations, rules, bye-laws. Schemes are deliberately left out. By analogy one would expect power to make a scheme, would not include power to amend it.

Mr. Healy.—In relation to officers and servants the statutory provisions enabling a scheme to be made, in so far as pension schemes are concerned, are contained in the Pensions (Increase) Act, 1964. There is a section which empowers the making of a scheme for officers and servants. The Interpretation Act 1937 was adverted to by the Central Bank but they took the line, and it is the line we would have taken, that provision for officers and servants is contained in section 30 (1) of the Pensions (Increase) Act, 1964.

13. Chairman.—In other words an addition is not to be taken as an amendment?

Mr. Healy.—Do you mean in the sense of giving a pension increase in accordance with the Pensions (Increase) Act, 1964? It is not an amendment in accordance with the Superannuation Acts.

Chairman.—If pensions are increased, that is an addition to existing pensions and it is not invalidated by section 15 (1) of the Interpretation Act, 1937?

Mr. Healy.—I would not think so.

Chairman.—I take it that your view is that there is a difference between an amendment of the scheme and an addition in the sense of an increase?— Yes, there would be, I think. An alteration in the provisions of the scheme affect serving officers; pension increases affect retired officers.

14. Miss Bhreathnach.—The Central Bank’s scheme is in a way a unique scheme because it has no detail. It was laid before the Oireachtas under the Currency Act; all it provided for was that officers and servants of the Central Bank should get the terms of the Superannuation Acts as if they were pensionable or non-pensionable officers respectively in the Civil Service. That was linked up with declaring the funds to be a public fund because it was the most closely linked body with the Civil Service. They really have pensions on Superannuation Acts terms except that it is not a pension under the Superannuation Acts because it is not awarded by the Department of Finance. When the pensions increase provisions came along applying to Superannuation Act awards nobody could dispute that they should not be applied to similar pensions that fulfilled the same terms—such as being awarded in respect of service that ended before a certain date—in the Central Bank and nobody thought of controverting that so that this scheme which has been drafted by the legal advisers —really it is drafting that is more at issue than the contents, and on that we cannot do a great deal when it is not our own draft—is intended to enable the Bank to continue to treat all their retired personnel as if they were pensioners paid directly under the Superannuation Acts by the Department of Finance. In other words, they do not get a penny more or less. That is how it has always worked and how the Auditor understands it to work. I do not think there need be any qualms about it. Perhaps if we had been drafting it ourselves we might have done it a little differently but it is the Bank’s draft and I think it covers what they want to do.

15. Chairman.—Would you visualise a position whereby when pension increases occurred in the Civil Service some note might be made that these would also apply to officers and servants of the Central Bank so that the House might be aware of it?

Miss Bhreathnach.—The House has already given the Bank full discretion to apply the Superannuation Acts terms. When the House passed the Pensions (Increases) Act of 1964 they put into the Schedule a provision covering a pension or annual allowance granted under the Superannuation Acts, 1834-1963. If they were satisfied to increase annual allowances granted under these Superannuation Acts in such a manner according to when they were awarded and what was the date of retirement and so on, I think they must extend that into the field into which they have already allowed the Superannuation Acts to extend willingly.

16. Chairman.—There is one point: have the Central Bank at any time increased pensions without bringing in an amending scheme? How did they do it? Have they increased pensions at any time before this?—Yes, because they regarded them as equivalent to pensions under the Superannuation Acts.

They did not bring in a scheme?— They did not make an amending scheme. So long as the pension increase limits were strictly observed—we then had our hands full with pension increases—and so long as everything was going all right, we were aware that the Bank was paying these increases and we sanctioned them.

17. Chairman.—In Article 11 it is provided that the Bank shall from time to time do … all things which it considers necessary to enable the provisions of the Superannuation Acts to be fully applicable and so on. What exactly is intended by that?

Mr. Healy.—This is a clarification provision and the Central Bank considers it necessary to spell it out so as to tie up all the knots when they are applying the Pensions Increases Acts to their staff and to ensure also that the provisions of the Superannuation Acts are applicable to the Governors, officers and servants as if they had been in fact employed in the Civil Service. I think it puts the matter beyond doubt, that they are really getting the same treatment as if they had been employed in the Civil Service, no better and no worse.

Chairman.—Has anybody any questions? I think we have all the information we really expected to get at this stage. Thank you very much.

The witnesses withdrew.

STEM AND BULB EELWORM ORDER, 1966.

Messrs. J. Bradley and E.J. Sheehy (An Roinn Talmhaíochta) called and examined.

18. Chairman.—Most of our trouble, Mr. Bradley, is to determine just when someone has, or has not, committed an offence. The Order appears a little vague on that. Is it correct that an importer who imports onion seed without a licence contrary to Article 3 of the Order does not commit an offence against the Order?

Mr. Bradley.—I would say he commits an offence.

The mere importation of onion seed would be an offence?—Yes, without a licence. Onion seed may not be imported except under licence, under Article 3(1) of the Order.

19. Chairman.—There does not appear to be any power in the statute for attaching a penalty to it in the Order.

Mr. Bradley.—Our Order is made under section 3 of the Destructive Insects and Pests (Consolidation) Act, 1958. Section 3 provides for penalties.

20. Chairman.—Surely section 3 begins:

The Minister may from time to time make such orders as he thinks expedient for preventing the spreading in the State of destructive insects or pests or agents for the biological control of plant pests.

If onion seed is not infected, where does the offence lie and where is the penalty?

Mr. Bradley—If onion seed has been brought in without a licence it is an offence whether or not there is infection in it.

21. Chairman.—I am asking where is the authority for a penalty.

Mr. Bradley.—The authority for a penalty is in section 3 (3):

Every person who contravenes (by act or omission) any order made under this section shall be guilty of an offence under this section and shall be liable on summary conviction to the penalties imposed by the order.

22. Chairman.—That is limited to the section but what part of section 3 deals with onion seed which is not infected.

Mr. Bradley.—Our legal advice is that section 3 (1) is extremely wide and gives the Minister wide powers. The Minister may, under section 3 (1) make an Order containing anything he thinks expedient for preventing the spread in the State of destructive insects or pests. It could well be advisable to order the destruction of imported onion seed which was not definitely proved to be infected.

Chairman.—You are saying that section 3 (1) is sufficiently wide to cover the destruction of onion seed in order to prevent the spread of infection.

Mr. Bradley.—Onion seed could be potentially dangerous. The infection cannot be detected visually, and onion seed could cause the spread of infection.

23. Chairman.—Have you some information on this stem and bulb eelworm?

Mr. Bradley.—This Order came into existence when a loop-hole in the very wide powers the Minister has under the Destructive Insects and Pests (Consolidation) Act came under notice a year ago. The Minister has powers in relation to trees, shrubs, plants and any part of a tree or plant, shrub, and so on. The Colorado Beetle Order, 1945, was made under this Act. About a year ago it came to notice that the humble onion seed was not included in the stated list and the Department took steps to include onion seed, which was also regarded as potentially dangerous. In making the Order we regarded ourselves as stopping a small loophole which had become apparent and we did this in the same way as in the 1945 Order. The particular sections of our Order which concern the Committee are actually got from the Order of 1945. That is the history of this particular Order dealing with onion seed. We did what we had done on a very large scale in relation to dangerous plants 20 years before.

24. Chairman.—I can assure you, Mr. Bradley, the Committee are only too anxious to see that deleterious substances are kept out. Our main concern is that if an importer illegally imports onion seed he commits an offence, but nothing may happen to him because the Minister may give him a licence subsequently to dispose of it.

Mr. Bradley.—It is most unlikely.

Chairman.—It may be unlikely, but it is provided for. There appears to be provision for a Department judgment which one would have thought would have been exercised by the courts rather than by the Department.

Mr. Bradley.—Yes, an instruction would depend on the particular circumstance in which the seed had come to be imported. Perhaps if the person could make some good case that the importation had come about through misadventure or that there had not been any intention to deceive, that he had acted in good faith, it is possible that the Department would have the seed tested for the presence or otherwise of stem and bulb eel worm and might, as an act of grace, give an import licence. It is rather academic to consider what would happen now that this Order has been in operation for some time and the trade must be presumed to be well aware of the situation.

25. Chairman.—If the importer does not get a licence either to import or dispose of the seeds having imported them illegally and if the Minister by direction has the seeds destroyed by some other person do I take it that the person is now also free of offence and that no penalty would be imposed?—There seem to be many courses open to the Department and this appears to be one of them. Instead of giving a licence to the importer to dispose of them himself the Minister may instruct somebody else to destroy them. The Order gives the Minister a choice: he can direct that the seed be destroyed by the importer or some other person and I suppose he would do what might be considered appropriate in the particular circumstances. If it were thought that the importer was personally open to criticism in the particular circumstances, the order might well be directed against him.

26. What I am looking at is the significance of what is said in paragraph 2 of Article 4 because this is the only time the Order speaks of anybody being guilty of an offence and he is guilty of an offence if the onion seed is ordered to be destroyed forthwith and is not so destroyed. If he gets a licence, he is all right; if the Minister destroys the seed, he is apparently all right. It is only when he is told to destroy the seed and does not do it that he is guilty of an offence. Is this not so?—Yes, but is it not the general position that any person who acts in contravention of the order commits an offence?

27. I wonder what is visualised about illegal importation without a licence? How do you get it in without a licence?— There is a surprising amount of smuggling of different things. There is quite considerable agitation about smuggling from Northern Ireland. Even potatoes have been smuggled. It is a matter of price really.

28. Does there not appear to be a slight anomaly in the Order in that seed grown and imported from Northern Ireland does not come under this?—That is so. Mr. Sheehy will probably confirm this: Northern Ireland, like ourselves, pride themselves on being a cut above pretty well all other European countries because of relative freedom from a great many diseases. Broadly speaking, the Six Counties are in the same position. They have a very effective screening apparatus. Is not that, broadly speaking, Mr. Sheehy, why we grant exceptions in regard to Northern Ireland so far as furnishing of certificates and danger generally is concerned?

Mr. Sheehy.—This applies to both plant and animal health. There is generally liason on matters of plant and animal health between the two parts of Ireland. We do not anticipate that diseased seed might get easily into Northern Ireland or that if it did it would go undetected.

29. Chairman.—Have they a similar Order to this?

Mr. Sheehy.—They operate under the Plant Health Regulations. They have somewhat wider powers than we have in respect of some plants like potatoes but largely there and in Scotland there is a parallel form of restriction.

30. Chairman.—From the machinery point of view I was puzzled because there does not seem to be any provision for a certificate of origin to show that it was grown in Northern Ireland. The only time a certificate turns up is in relation to a licence. You do not look for a licence because it is grown in Northern Ireland?

Mr. Sheehy.—There is a plant health certificate which must accompany material coming in under licence. There are certain things we require licences for from Northern Ireland and certain things they require licences for from us but generally they are limited in number. This is one of the things for which we do not require a licence.

31. Chairman.—This is one of the things in which you have to prove innocence? If it was grown in Northern Ireland and if it is proved that it was do you say:—“that is all right; we do not need a licence?”

Mr. Bradley.—That is right. The customs officer would have to be satisfied that it was grown in and imported from Northern Ireland and, if so, it would escape this control.

32. Chairman.—It is not subject to test?—No.

It could happen that contaminated seed would come in?—Yes, but it is unlikely to come from Northern Ireland. It could not get into Northern Ireland any more readily than it could get in here. They do not produce onion seed there.

Chairman.—I was wondering if somebody had in mind that, if contaminated seed did happen to get in, this provision for destroying the seed would then come into operation, that it would be an offence to retain the seed if it was not destroyed.

Mr. Bradley.—It would be.

33. It was just a safety valve rather than anything else?—Yes. What brought this Order into existence was that there had been a case of onion seed imported from Holland in which with stem and bulb eelworm was found and when the Department went to do something about it, it was found that the 1945 general Order did not list onion seed. So, we made this parallel Order to the general Order which is dated 1945. It arose out of the finding of stem and bulb eel worm in onion seed imported from Holland.

Mr. Sheehy.—The most trouble has been with Dutch seed. We were afraid of this disease, as it was in England. We found it was stem and bulb eelworm. This year seeds which came in under licence were covered by a phytosanitary health certificate declaring that they were free from disease according to the best Dutch experts’ opinions. You cannot detect this disease by visual examination; it has to be tested in the laboratory. There are two places here where the growing of onions had to be abandoned because of this disease and we notified our counterparts in the North and Britain. They discovered it too. Having the seed under certificate was not sufficient. Normally, if something is certified, it comes in under licence but we have to test onion seed. It is mainly Dutch. Sweden, Denmark and all the other countries which had imported onion seed had discovered this disease and had taken a precaution, with which we did not equip ourselves. That is why we had to make this Order.

34. Chairman.—There is confusion on whether there are penalties or not. It arises from the citation of section 2 as well as section 3. Does section 2 not affect this Order?

Mr. Bradley.—Very little. As regards legal authority our Order has been made under section 3 rather than section 2.

35. Senator Sheehy Skeffington.—Does that mean that it was not necessary to cite section 2?

Mr. Bradley.—It is difficult to answer this because the 1958 Act was a consolidating Act. There was a string of Acts governing insects and pests from 1877 to 1929 and in 1958, as an exercise of consolidation, they were all converted into the one Act. The 1958 Act was not, shall I say, designed on a clean sheet as a coherent and logical Act, but it rather put together into one piece all that was scattered in other Acts. Each section does not represent a policy decision taken in 1958.

36. Chairman.—Sections 2 and 3 might in effect be amalgamated?

Mr. Bradley.—It is possible.

37. Senator Cole.—Article 4 (2) must surely depend for its validity on section 2. It is the only article that deals with the matters referred to in section 2. It must deal with articles imported under section 2. There are no penalties provided for under section 2.

Mr. Bradley.—Our Order is made under section 3 which says that the Minister may from time to time make such Orders as he thinks expedient for preventing the spread in the State of destructive insects or pests. Our Order is made under that and it has a penalty provision.

38. Senator Cole.—Section 3 does not deal with articles that are imported.

Mr. Bradley.—Legal advice on that is that section 3 is extremely wide; it has as wide a power almost as could be given and it does not derogate or take from the wide powers given under section 3 to state that there is reference to import elsewhere. The general advice of the legal authorities is that section 3 (1) is deliberately very broad and general and if there are references elsewhere to particular aspects it does not take from the generality of the powers given under section 3.

39. Chairman.—It looks as if the only way to get clarity is for the Committee to import onion seed and see what happens.

Mr. Bradley.—Broadly speaking, the legal advice is that extremely wide powers are given to the Minister by section 3 and references elsewhere to particular things like importation, or entry on land or premises, railway trucks or wagons, as compared with entry by inspectors, customs officers or gardaí, do not take from the Minister’s powers.

40. Senator Cole.—Your argument is that section 3 covers all the points covered by section 2.

Mr. Bradley.—Section 2 does not fall to be substracted from section 3. Perhaps it is not the best designed Act in the world but it came into being as I have said.

Senator Cole.—I follow that.

Mr. Bradley.—It is an amalgamation of other legislation.

41. Senator Cole.—It is stated: “destroyed at the expense of the importer.” Would you have the authority to charge him under this section, if it were an expensive business to take it away somewhere? Is there authority to charge him?

Mr. Bradley.—The Order which is made under section 3 says so.

Senator McDonald.—There should be authority.

Senator Cole.—He might be fined but I am not quite sure whether you can charge him the expense of destroying it.

Mr. Bradley.—He could say: “No; I will not,” and that would be an aggravation.

42. Chairman.—You have not had a case under the Order. Nobody has had the temerity to query it in court?

Mr. Bradley.—An importer fined for importing this onion seed would feel very guilty about the whole thing because this particular onion seed pest gets into the land for seven years. It takes proper treatment for seven years to get it out.

Chairman.—You said he could be prosecuted for importing seed that had not been infected.

Mr. Bradley.—It would be desirable in certain circumstances to have power to require the destruction of seed not proved to be infected but which might be a potential danger.

Chairman.—I presume the Department would not have the temerity to do that.

Mr. Bradley.—It all depends on the particular circumstances of the case. The Department would take those into consideration.

43. Chairman.—We turn now to the second point which arises in connection with Article 7. This Committee is concerned with the wording of section 3. This is to do with who may be authorised. Am I right in presuming that the right to have other officers as well as inspectors going into railway trucks and so on would depend on section 2 (1) and section 3 (1) rather than on section 3 (2)?

Mr. Bradley.—It would depend in part on section 2 (1) and on section 3 (1) as to the right. If there is anything wrong under this particular heading, it would have been wrong for a very long time. This has no direct bearing on the matter but it is of historical interest. As long ago as 1920, Orders were made under the Destructive Insects and Pests Acts, which empower a long list of people, including police and Justices of the Peace to enter railway waggons. The Department has been doing this under these Acts since before the State was founded. If it is wrong it aggravates the situation that we have been doing it for so long.

44. Chairman.—You were very careful to point out earlier that a difficulty was that visually you could not tell and I am wondering where Guards come in in this. I would have thought that Guards should have very little function.

Mr. Bradley.—To be frank, this is just a general precautionary provision. To my knowledge the Guards have not been used to enforce this and it is rather unlikely that they would be used. It is a kind of omnibus clause.

45. The only difficulty is this power that the Minister apparently is claiming, to authorise by Order, and anyone can go in without a warrant, can he not?— Without warrant, yes. I think it would come back to this very wide power which is given. Section 3 enables the Minister and there is also the point that the Order would really be unenforceable if there was not the power available to enter into any place.

46. Would these other officials have written authority from the Department? —I would say if it was proposed to use them, yes. In practice the Department only uses its own inspectors, or customs officials might come in from time to time. In practice the Department uses only its own inspectors and I would say that there was no intention to do otherwise except in unusual circumstances that I cannot put in words at the moment. I would say if it was proposed to extend the entry powers, to have entry by persons other than Departmental inspectors, there would be specific written authority.

An inspector might only be 14 stone and the other person might be 16 stone? —It has happened that the Department’s inspector has had to have a guard with him in relation to this, in a case, say, where a farmer had a definite grievance about taking out a licence for a bull. In such a case it has been necessary for an inspector to have an escort.

47. Senator Cole.—Do you not suppose that because the word “inspector” is used in a certain section the legislature may have intended that an inspector was the only person entitled to be authorised and that the Minister has enlarged that section very much by mentioning people who were not thought necessary by Oireachtas Éireann?—No, I would not think so. An inspector is specifically authorised to do something. It is a matter of entering on land for the purpose of examination or, perhaps, of requiring the removal of diseased crops. I think that is one particular case in which the inspector is referred to. It is in section 3 (2) (e) where it empowers an inspector to go on land for a specific purpose relating to the removal of crops or the destruction of crops. In regard to what the Dáil or the Seanad intended it is to be presumed that they wanted to make a certain thing clear, that an inspector might do certain things, but they did not intend by this to imply that powers of entry were limited to these particular circumstances.

48. Surely you must presume they did when it says it?—No. I think these very wide powers given under section 3 (1) were not whittled down by reference to inspectors in particular cases. Of course, it is a fact that this has been law for 30 or 40 years. These particular powers have been there under this legislation for 30 or 40 years.

Senator Cole.—There was no SI Committee then.

Mr. Bradley.—Could you not say that the legislation intended that that situation should continue?

Senator Cole.—I do not think so.

49. Chairman.—It does happen in legislation that where particular powers are outlined there has also been an omnibus clause tacked on but in this case section 3 does not do that.

Mr. Bradley.—The omnibus clause is at the start “such Order as he thinks expedient.”

Chairman.—I cannot see how the legal people got around to this interpretation. I would have thought the intention was to the contrary.

Mr. Bradley.—Would you not think that section 3 (1) has the effect of an omnibus clause?

Chairman.—I doubt very much if the Oireachtas visualised that the Minister might think it expedient to send in a customs officer or guards without warrant.

Mr. Bradley.—Even though that power had been in legislation since 1920?

50. Chairman.—Are you sure the power was there? Could you give me the reference to the 1920 legislation it would be convenient?—It is the Potatoes Importation (Ireland) Order, 1920.

An Order?—Yes.

Chairman.—It was the statute I was looking for.

Mr. Bradley.—The statute reference is the Destructive Insects and Pests Acts 1877 and 1907.

51. Chairman.—They specifically gave power to the police, in those days?

Mr. Bradley.—Yes: “Any Justice, customs officer, constable or any inspector or other authorised person upon production of his appointment may enter any premises, or any railway truck or waggon, or any ship, boat, or other vessel, or craft or any place” where these things are and examine and take samples.

Senator Cole.—That is the Order?

Mr. Bradley.—Yes, made in 1920.

52. Senator Cole.—But not the Act?

Mr. Bradley.—No. The statutes are the Destructive Insects and Pests Acts, 1877 to 1907. This is an Order made under those Acts. Anything under those Acts would have been inherited. The 1958 Act was framed to be a consolidating Act embodying the earlier legislation, so that what could have been done under the parts could have been done under the whole.

Chairman.—It may have been done but may not have been challenged. That is our trouble.

Mr. Bradley.—Your Committee was not in existence at that time.

The witnesses withdrew.

The Committee adjourned at 5.55 p.m.