Committee Reports > List of Committees > Seanad > 1967 > Select Committee on Statutory Instruments > Report No. 03 - Statutory Instruments [7]

APPENDIX II.

Stem and Bulb Eel Worm Order, 1966

[S. I. No. 2 of 1966]

An Rúnaí,

An Roinn Talmhaíochta agus Iascaigh.

I am directed by the Select Committee on Statutory Instruments to refer to the Stem and Bulb Eelworm Order, 1966 (S.I. No. 2 of 1966) which was made under sections 2 and 3 of the Destructive Insects and Pests (Consolidation) Act, 1958.

The Select Committee notes that, while section 3 of the Act provides that the contravention of an order under that section shall be an offence for which penalties may be provided, section 2 contains no corresponding provision. It seems to the Committee that Article 4 (1) of the Order depends for its validity on section 2 of the Act being an exercise of the Minister’s power to “direct or authorise the destruction of any article if landed.” It is not clear, therefore, what authority there is for Article 4 (2) which makes the contravention of Article 4 (1) an offence for which penalties are provided in Article 9.

Article 4 (1) provides that onion seed imported in contravention of the Order shall, unless its disposal otherwise is authorised by licence, “be destroyed forthwith either by and at the expense of the importer or, if the Minister so directs, by some other person specified by the Minister.” It seems, therefore, that if the Minister issues the direction indicated the importer escapes liability but that nevertheless his liability will arise “forthwith” if no direction is issued. While the Committee appreciates the efficacy of the provision in securing in any event the destruction of the offending substance it is concerned that the point in time at which the individual commits an offence for which he may be fined is not clear.

Article 7 of the Order empowers “any officer of customs and excise, member of the Garda Síochána or inspector . . . for the purposes of enforcing this Order, or of detecting any violation of the provisions thereof to enter any land or premises, any railway truck or waggon, any ship, boat or other vessel or craft, any aircraft or any place where ships, boats or other vessel or craft, or aircraft are loaded or unloaded, etc.” Section 3 (2) (a) (ii) of the parent statute enables the Minister by order to direct or authorise “the entering on any lands” and Section 3 (2) (c) (iii) authorises the Minister by order to empower “any inspector” “to enter on any land”. The Committee is doubtful whether the statutory authority authorises the entry on railway trucks, ships, boats, vessels or aircraft or enables persons other than an inspector to be authorised to effect any such entry.

To enable the Select Committee to determine whether the special attention of Seanad Éireann should be drawn to the instrument it would be glad if you would furnish an explanatory memorandum on the foregoing points.

Cléireach an Roghchoiste.

23 Meitheamh, 1966.

Cléireach an Roghchoiste,

Seanad Éireann.

With reference to your minutes of 23rd June and 27th October regarding certain points raised by the Select Committee in relation to the Stem and Bulb Eelworm Order, 1966 (S.I. No. 2 of 1966) I am directed by the Minister for Agriculture and Fisheries to state that he has consulted the law officers in relation to these matters and is advised as follows:—

The validity of Article 4 (1) depends rather on section 3 than on section 2. It is true that section 2 provides for directing or authorising destruction. Article 4, however, sets up, in effect, a system of control of onion seed imported in contravention of the Order. The system embraces restriction of disposal by means of licences and destruction if (but only if) a licence is not obtained. Such a system is authorised by section 3 (1) but not by section 2.

It would not be possible for the obligations of destruction of onion seed imposed by Article 4 (1) to be fulfilled at the same time in all cases. As examples, two possible cases of improper importation may be considered. Importer A imports a small quantity of seed and does not apply for a licence. He might be expected to fulfil the obligation almost at once. Importer B imports a large quantity of seed and applies for a licence. A period must be envisaged for the making, consideration and (as an offence is in question) refusal of the application. An additional period must then follow so as to enable the importer to arrange for the destruction of this large consignment. It might well be a considerable period. Having regard to the foregoing, no precise time for the commission of an offence (i.e., failure to fulfil the obligation) could be specified. In such cases, “forthwith” is the appropriate word. In Jowitt’s “Dictionary of English Law” (1959) it is stated, under “forthwith”, that “when a statute or rule of court requires an act to be done forthwith it means that the act is to be done within a reasonable time having regard to the object of the provision and the circumstances of the case.”

As regards the first doubt of the Committee on Article 7: the conferring of power to enter railway trucks, etc. does not rest on section 3 (2) but on section 3 (1) and, in the case of officers of customs and excise, section 2 (1). The provisions are unusually wide. The phrase used is “such orders as he thinks expedient”. The fact that the legislature saw fit to include in section 3 (2) specific powers to confer authority to enter land scarcely compels the inference that it intended that the wide powers contained in sections 3 (1) and 2 (1) were to be construed as not including a power to authorise entry on railway trucks, etc. As orders such as the one under consideration would be unenforceable without this power of entry, it would be unreasonable to attribute this intention to the legislature.

The second doubt on Article 7 makes it necessary to consider the position immediately before the passing of the 1958 Act and which that Act, being a consolidating Act, reproduced. There then existed:

(a) the original general power to confer authority to enter land contained in section 2 of the Destructive Insects Act, 1877,

(b) an entirely separate power to confer that authority on inspectors contained in section 3 of the Destructive Insects and Pests Act, 1929.

Although the enactment of 1929 did not purport to affect in any way the power given by the 1877 Act, it must be taken as qualifying that power so that in the case of an infected crop no person other than an inspector could be authorised to enter land. A reasonable explanation of this is that the legislature in 1929 intended that, in the case of an infected crop, only a person competent to judge whether it was infected (i.e., an inspector) should be given a power to enter.

The foregoing position was reproduced by the 1958 Act and, in relation to the doubt entertained by the Committee, may be summarised by stating that the statutory authority enables persons other than Inspectors to be authorised to effect entry save in cases involving infected crops.

The Senate Committee may be concerned as to whether the provisions in question are in an unusual form. This is not so. They follow precedents used in the Colorado Beetle Orders, 1937 and 1945. The provision relating to entry on railway trucks appears as early as 1920 (Potatoes Importation (Ireland) Order, 1920). Precedents such as these are normally followed unless they have been challenged. As a practical matter, they are regarded as sufficiently authoritative by virtue of having been operated over a long period without question.

3 November, 1966.

An Rúnaí,

An Roinn Talmhaíochta agus Lascaigh.

I am directed by the Select Committee on Statutory Instruments to state that at its meeting last night it considered Mr. Bradley’s minute (21/5/848) of 3rd instant regarding the Stem and Bulb Eelworm Order, 1966 (S.I. No. 2 of 1966).

The Select Committee notes the view that the validity of Article 4 (1) depends on section 3 of the parent statute rather than section 2. It seems to the Committee that section 3 can be invoked only if the substance actually contains some destructive insect or pest. This fact suggests to the Committee that it may be the intention to take proceedings against importers under Article 4 (2) of the Order only where onion seed imported in contravention of the Order is found to be so infected and if this is the case the Committee wonder why the Article could not be so drafted as to make this fact clear.

In regard to Article 7 of the Order it seems to the Committee that the observations of your Department amount to saying that if a Minister is empowered to make “such orders as he thinks expedient” to prevent some objectionable practice he may by order, if he thinks it necessary to achieve that purpose, authorise any class of official to enter any place without a warrant.

The Select Committee would like some further explanation of the foregoing points and for this purpose it wishes you to depute a representative of your Department to attend its next meeting on Wednesday 16th instant. The meeting will be held in Room 457, Leinster House at 3.30 p.m.

Cléireach an Roghchoiste.

10 Samhain, 1966.