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MIONTUAIRISCÍ NA FIANAISE(MINUTES OF EVIDENCE)Dé Céadaoin, 12 Meitheamh, 1968.Wednesday, 12th June, 1968.The Committee met at 4.30 p.m.
SENATOR W. A. W. SHELDON in the chair FOOT AND MOUTH DISEASE ORDERS.Mr. P. J. Brennan (An Roinn Talmhaíochta agus Iascaigh) called and examined.1. Chairman.—As you know, Mr. Brennan, we have asked you here to talk about certain Orders made by the Minister in relation to the recent foot and mouth epidemic in Britain. I want to be perfectly clear that we do not wish to question the fact that the various measures taken were necessary to keep the disease out of the country. In fact, we believe all this was absolutely necessary. What we are concerned with is whether the Minister stretched the powers given to him by the Diseases of Animals Act, 1966, even though in a good cause. In Venice it was held that to do a great right you could not do a little wrong. That is equally true here. Our position is that, if we believe the Minister made an unusual or unexpected use of those powers, we are obliged to draw attention to that fact in our report to the Seanad. It is in order to clarify the position that we have asked you to have a talk with us. We may be in favour of giving the Minister all the powers he wants but what we are concerned with is whether he had them and used them in relation to this matter. There are three sorts of groups I think in this matter which arise. The first one deals with the Minister’s power to make Orders under paragraph (a), subsection (1) of section 3. A great deal of difficulty, I think, hinges on how that particular paragraph is read. Is it your contention in any case where the Act does not specifically stop him that the Minister has power to make any Order arising under that particular paragraph if he considers it necessary to prevent the spread of disease?— Yes. 2. It is as wide as that? One of the things which bothers us is the phrase “subject and according to the provisions of this Act”. To my reading, use of the statutory powers would seem to be in line with “subject to the provisions of this Act” rather than the more qualified phrase “according to the provisions of the Act” as well. In other words, what does “according to” mean here?—May I say, first of all, I am not a legal man? I am an administrator. I have no legal knowledge. When the disease struck first, we put our proposals to the Attorney General. All those Orders were drafted by the Parliamentary Draughtsman and screened through the Attorney General and came back to us. When we got the three minutes from the Clerk, we referred them forthwith to the Attorney General for advice as to the reply. We embodied all the comments made by the Attorney General in our reply to the Committee. I am in the unfortunate position that I cannot argue points of law. Our advice is that we were legally entitled under the statute to make those Orders. The Attorney General’s advice is that the statute empowers those Orders to be made. You acted on it?—Quite obviously, I would suggest that the Diseases of Animals Act would be useless if it were only to provide for the situation where you had the disease. All our energies are directed towards keeping out disease such as foot and mouth disease and those virus diseases, which could ruin our economy. This is a modern statute, a 1966 one. It consolidates 13 or 14 previous Acts backdated to 1894. I think the Oireachtas and this Committee would want us to be in a position to take measures both for the eradication of disease, if we had it, and keeping out disease, if we had not got it. We would be in an awful position if this thing happened as it did in Britain and we had to frame an Act to provide for it. 3. Chairman.—As I said, the Committee is very clear on that point also that very stern measures were needed to prevent a disaster but its concern at the moment is with the legality of it. It is a bit unfortunate from our point of view if you cannot tell us more about the legalities. You mentioned that it is a modern statute but there is very little in the Act which would give one the impression that it was dealing with anything except an outbreak of disease in this country and preventing its spreading?—There again I am under advice. I cannot represent to you the Attorney General’s views as to the legalities or on questions of law. Anything I would say would be purely my personal view. We did, as I said, refer this totally to the Attorney General for material to reply to your Committee. We sent it as we got it. 4. Perhaps as a result of our discussions this afternoon there may be a few points for you to put to the Attorney General. I want to pursue this to the end. For instance, the Act in sections 30 to 34 is very detailed and specific in dealing with the importation of animals but persons are not referred to and yet orders were made restricting the entry of persons. There does not seem to be anything very clear in the Act giving the Minister power to restrict persons as such. To add to the confusion, if I may say so, in one reply section 25 is referred to but section 25 refers only to class B diseases. Class B diseases do not include foot and mouth so we are left a bit in the dark as to what section 25 has to do with the argument. In the schedule Class B diseases are named and foot and mouth is not one: “Sheep scab, bovine tuberculosis, brucellosis and warble fly infestation.” Foot and mouth is a Class A disease so what section 25 has to do with it is a bit vague?— There again I am in difficulty in as much as I cannot assist you on this. 5. Chairman.—You will appreciate that one is bound to feel a little suspicious of an opinion given by the law officers which has such an obvious error in it as a reference to a section which has nothing to do with the case at all. Is there any other point dealing with 3 (1) (a)? Senator Sheehy Skeffington.—Under 3 (1) the Minister may make Orders “subject and according to the provisions of this Act.” We are concerned with the powers that are vested in the Minister by this Act. I would suggest—and ask Mr. Brennan’s opinion— that the words “subject to the provisions of this Act” mean that the Minister cannot make any Orders which are prohibited by the provisions of the Act but that the following phrase “and according to the provisions of this Act” means he can only make Orders if the provisions give him the power. Would Mr. Brennan agree that this is added to by “according to” or does he contend it means the same as “subject to”? Mr. Brennan.—My trouble is that I am really here with the documents supplied to me by the law people. We have gone on their advice and opinion. We are standing on section 3 (1) (a), the provision dealing with the prevention of the spreading of disease and in that context all we have done is legal. I am not competent to argue the case. 6. Senator Sheehy Skeffington.—The Attorney General would seem in his advice to you to suggest that “according to” does not mean anything different from “subject to”. Therefore it is otiose. In that connection there is reference in section 30 (1) (b) to what can be done in relation to persons and it specifically says the Minister can make Orders requiring and regulating the disinfection of persons entering the State, so that some powers are granted to him in relation to persons. Although persons are mentioned, there is no mention throughout the Act of his power to stop persons coming in? Mr. Brennan.—Section 3 (1) (a), we contend. We associated the disease risk with everybody at one stage coming from Britain and going on to Irish farms. Chairman.—This is the nub of the whole trouble. 7. Senator Sheehy Skeffington.—Would this be under the contention that, where animals are referred to, this must be taken to cover human beings? If so, as in 30 (2) “the animals and poultry shall be slaughtered”, would the Minister contend that he should slaughter tourists, that that is one of the power given to him by this Act? Chairman.—Mr. Brennan has mentioned that he is not a legal man. The points we are raising are all very legal. Would Mr. Brennan like that this meeting be adjourned so that he could ask that someone from the Attorney General’s Office would assist him on another occasion? Mr. Brennan.—My brief from the Attorney General’s Office was to tell the Committee that this is the advice of the Attorney General; that I was not competent to justify or argue the points. Really, I am not in a position to discuss this except that there was no concept in this Act that was not there since 1894. Britain and Northern Ireland have a similar provision of a general nature in their Acts. Northern Ireland did much the same thing as regards keeping out used secondhand vehicles from Britain at the height of the epidemic. We marched in step in everything—the entire island—to save the country from this terrible danger. In their Vehicles Order, they depended on an omnibus powers provision such as we have in this Act. This was culled from the 1894 Act. I am sure that, over the years, we did things not specifically provided for in that Act but with the general objective of— 8. Chairman.—That argument is that the Act could stop at section 3, that the rest is words?—Diseases and circumstances change from year to year. The Minister would have to have some kind of a free hand as regards the type of control he would have to introduce to keep out a disease in particular circumstances. 9. Did no doubts arise in anyone’s mind as to whether this Act really covered the circumstances that arose?—We could not have gone through the Oireachtas with this Act with a half-belief. We must preserve the country from outside contact. As well as that, we must strive to contain and eradicate disease. We believe this Act provides us administratively with that power. We are assured by the Attorney General that it does. 10. I should like you to consider this matter of getting further advice in order to help the Committee on these legal points. May I point out one or two other matters, first of all, which strike us as odd? I have already referred to section 25 turning up in the correspondence, apparently for no reason. Also, under the queries in regard to Orders made under section 3 and 30, there are two odd matters. One is this interpretation of the word “thing”—a motor car or a tractor is cognate to the other items in the section which is very specific. Where a section names a number of objects quite specificially, to say that adding “or other thing” at the end widens it to anything at all in Christendom seems to be going a bit far. I am not greatly taken with the learned gentleman who was quoted to us in the course of the debate, Mr. Craies. A précis is given of his opinion, but to bring him into it is carrying it a bit too far. The thing does not appear to me to be as widely read as that but that would be subject to legal opinion. There was also the position that importation is clearly dealt with in the Act but an Order was made prohibiting export. That is No. 283 of 1967 which prohibits the movement of any cattle, sheep or swine from the Dublin cattle market or from any livestock marts or for export. How import could be stretched to cover export is not very clear. The other matter arises from section 48 where apparently the advice is that this phrase that is used under section 48 “an Order of the Minister” means in fact an Order which the Minister is hereby authorised to make. This reading of it does not appear to us to be very clear. There does not seem under section 48 any authorisation to make an Order so how section 48 gets into the business at all I do not know. In fact, under section 3 we had this, and the Attorney General claims it is there so there does not seem any point in citing section 48 at all. Certainly it is unfortunate it should be cited in this way. It is apparently to give the impression that to use the words in the section “an Order of the Minister” means that the section gives him power to make an Order. As you say, these points are very much legal ones and there is nothing which concerns the administrative side of preventing the spread of the disease at all. It is said the power was there and that is a legal matter so I think it would be more useful if we had someone from the Attorney General’s office who could clarify our minds on those legal matters. Senator Sheehy Skeffington.—It is not fair to interrogate Mr. Brennan on this. I think the Attorney General’s office has more experience. 11. Senator Cole.—Are there no legal officers in the Department of Agriculture? —Our legal arm is the Attorney General’s office. 12. Senator Crowley.—So, as far as you are concerned, you would be entirely dependent on them for interpretation?—Those are certain legal queries you gave us. Our experts advised and we forwarded this to you. I am in a difficulty in carrying on a discussion on the basis of their opinion because I am not empowered to do so. 13. Chairman.—You could consider that and see if you would like to ask someone from the Attorney General’s office to assist in the matter. Senator Sheehy Skeffington.—Could we put it more strongly than that? Chairman.—No. Mr. Brennan.—You will not require the Attorney General’s representative to appear? Chairman.—No. The point is this. Our difficulties are legal ones, as you have mentioned, and it does not appear to us fair to you to pursue this. You are acting under legal advice. All I can suggest is that you might like to have another talk with them and see if they would assist us directly. Naturally our report to the Seanad will be coloured by what information we are given. We do not wish to be unfair and we would like to hear the thing put properly to us. We certainly would not wish to give anyone the impression that we objected to the action taken to prevent the disease reaching Ireland. On the contrary, we are just as anxious as anyone that it should not but we have to satisfy ourselves that it was legally done. There is another thing. If there had been any doubt, I am quite sure an Act could have been passed very quickly, giving the Minister wider power. That need only take one or two days. Mr. Brennan.—We made those Orders very fast, overnight. If we had no Act, we would have been in a real spot. If power did not exist, we would have been shattered. Senator Crowley.—It is important to clear the point now. Mr. Brennan.—I have to assert that the advice given to me is that the Orders were entirely legal within the ambit of the Act. 14. Chairman.—If there were any doubts, it would be better that amending legislation were brought in. No one, of course, thought of taking an action to the courts. The courts would have cleared it but no one presumably did that. It might happen if something similar happened in future, which none of us would like to see happening, that someone who is maliciously minded would do something about it and there would not then be any doubt. Mr. Brennan.—Our own intention in bringing in this Act was to maintain the powers we had. There was nothing new. 15. Chairman.—I suppose we may adjourn this meeting and let Mr. Brennan think over what he would like to do. Mr. Brennan.—The Department have a most sincere wish to help but not being a legal person, I am afraid I cannot be much help, beyond saying what I have been told. Chairman.—We appreciate your difficulty. Mr. Brennan.—Should I consult them with a view to arranging a further discussion? Chairman.—Yes, if that seems good to the Department. Thank you very much and we are sorry for all the fuss you had. The witness withdrew. The Committee adjourned at 5.45 p.m. |
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