Seanad Éireann - Volume 12 - 24 April, 1929
Ennis Urban District Council (Dissolution) Bill, 1929— - Destructive Insects and Pests Bill, 1928—Report.
Mr. Lenihan Mr. Lenihan
Mr. Lenihan: I move:—
Section 4. To delete in line 59 the word “may” and to substitute therefor the word “shall.”
My amendment makes it clear to the owner of the crop that he shall be entitled to compensation, and that the question as to whether he gets compensation or not will not be left in doubt, as it would be if he had to rely on what the Minister of the day might do. I think it is very necessary that it should be made clear that compensation should be paid to the owner of the crop because it was destroyed in the public interest. Whenever animals are destroyed, compensation is always paid, and I do not see why the same thing should not apply in the case of crops.
Mr. O'Connor Mr. O'Connor
Mr. O'Connor: I second, and I support the amendment in the strongest possible way.
Mr. Wilson Mr. Wilson
 Mr. Wilson: I wish to support Senator Lenihan's amendment. The day is passed when the farmer should go and take his hat off and bow to the Minister saying to him after the crop is destroyed, “Please, Mr. Minister, will you give me something for the crop that was destroyed?” The Minister can go in and destroy a crop and the position is that the Minister “may” compensate. If one went to interview a Minister who was perhaps an enemy of his, other things might enter into it and he would get nothing. We want to have the law such that the Minister would have no option but to pay for the crop when it was destroyed in the interests of the community.
Mr. Comyn Mr. Comyn
Mr. Comyn: Like Senator O'Connor I desire to support this amendment in the strongest possible manner as, in my judgment, it is a very reasonable amendment. The matter has been already argued. When Senator Lenihan proposed it before we understood that the Minister accepted it. After a while in the course of the discussion, and influenced, I think, by the eloquence of Senator Johnson, the Minister, although at first he said he would, then said he would not, and finally I think at the end of the debate rather late in the day said he could not. The Minister then asked for an opportunity of considering it, and I am sure that as a result of that consideration he will be so reasonable as to accept the amendment. I do not join with my friend Senator Wilson in the suggestion that farmers should take off their hats to the Minister or that he would refuse compensation because you happened to be an enemy of his. I do not suppose the Minister has many enemies, and when Senator Wilson is there he will not have any enemies. The first argument was “Why change it at all”; “may” means “shall”? Well, if “may” means “shall” why not put “shall” there? No harm would be done.
Mr. Douglas Mr. Douglas
Mr. Douglas: The other is better for the lawyers.
Mr. Comyn Mr. Comyn
 Mr. Comyn: As a lawyer, I suppose I ought not to support the farmers.
Mr. O'Hanlon Mr. O'Hanlon
Mr. O'Hanlon: They will not support you.
Mr. Comyn Mr. Comyn
Mr. Comyn: Some of them might. There are some people who call themselves farmers but who are not farmers. I do not call myself a farmer, but I am a farmer. Some men call themselves lawyers and some of them are not lawyers. There are bogus lawyers and bogus farmers. I do not say that there are any bogus farmers here and I do not think there are any bad lawyers here. I submit that it should be put beyond doubt that a farmer whose crop is destroyed should get compensation, whoever the Minister may be. It was suggested when this question came up for debate before that there might be a case in which a farmer himself would be responsible for the infection or injury to his crop. That cannot possibly arise in this case, because the section deals with the case of an insect introduced into this country, so that quite obviously that is a case in which a farmer in a remote part of Clare, Kerry, Cork or Wexford could have nothing to do, and could have no responsibility whatever for the events that destroyed his crop. I support very strongly this amendment, and I hope it will not be opposed from the Labour Benches. There seems to be an idea that if a Senator connected with farming proposes an amendment it is the duty of some other interest to oppose it. In the Seanad I think we ought really to consider what is best in legislation for the interests of the country, and support or oppose it according as we consider it fair and reasonable, no matter from what source it comes.
Mr. Guinness Mr. Guinness
Mr. Guinness: I wish to point out that I do not think it matters in the least as to whether you have “may” or “shall,” as the whole thing is determined by sub-section (a) of Section 4, which states that  the Department has to fix the amount, and it may fix the amount at nothing.
Mr. Johnson Mr. Johnson
Mr. Johnson: This matter is largely a technical one, and I suppose a legal technical one. Senator Comyn has suggested that the question was raised as a matter of antipathy to the farmer. That is entirely wrong. The question was raised from the point of view of the order in which Statutes should leave the House, on the one hand, and, secondly for the protection of the public interests. At present the Bill permits the Minister by the word “may,” but as a layman I understand there are certain Acts in which in 99 cases out of 100 the word “may” involves “shall.” But there is always the possibility of circumstances surrounding a case which should not throw upon the Department the liability to pay. If the word “shall” is there, it is imperative, no matter what the circumstances may be, that money must be paid—a sum of money such as the Department may determine. If that is the intention, I have no particular objection, but, I think, as a matter of proper legislative method, a Department of State should have some protection against a possible malefactor in the shape of a farmer.
Mr. Comyn Mr. Comyn
Mr. Comyn: How could he introduce an insect?
Mr. Johnson Mr. Johnson
Mr. Johnson: The second point is that in any case, if the Department, as a Department, has to pay, it must get the money from the Dáil. If the Dáil does not vote the money, then all the “shalls” in the world are of no use. If the Minister, having consulted legal advice, makes the position clear that there is no technical objection, I am perfectly satisfied. I have no antipathy to the farmer in this matter.
Minister for Agriculture (Mr. Hogan) Minister for Agriculture (Mr. Hogan)
Minister for Agriculture (Mr. Hogan): I have very little to add to what Senator Johnson said. He stated the matter fairly accurately. In practice, in 99 cases out of 100, the word “may” would mean “shall.” But I have reconsidered  this question, and I do not think Senators should complain because I happen to change my mind. I think that it is the duty of everybody to listen to a debate and to be affected by it. I do not apologise at all for changing my mind in this matter, and, having considered it, I ask the Seanad to leave the word “may,” mainly for the reasons stated by Senator Johnson. If the word “shall” is inserted there, the Department of Agriculture must pay compensation, and full compensation, in every single case, good, bad or indifferent, no matter what the circumstances may be. I do not think it would be contemplated by any Senator, whether he was a farmer or a lawyer, that that should be the case, because we need not pretend that the farmers have either a double dose of original sin or no original sin at all. I suppose they are like everybody else, and the farmers are inclined occasionally to break the law if they find it to their interest to do so. That applies to every class. Under this Bill regulations will be made, and these will, and must of necessity, set out in detail certain duties which will fall on the farmers in certain circumstances. Regulations will be made somewhat similar to the regulations that have been made in connection with the disease known as Black Scab in potatoes. It is provided that the Department shall give notice to the farmer affected in certain contingencies, and these are as follows:—
That all diseased tubers and the haulms (if any) belonging thereto, as well as all packing materials and packages, at any time used for the storing or conveying of such potatoes shall be immediately destroyed on the spot by burning or other effective method prescribed by the Department.
That no potatoes or potato haulms shall be removed or be permitted to be removed out of the area defined in the notice except with, and subject to the conditions (if any), of a licence signed by an inspector of the Department or other authorised officer permitting such removal.
 That potatoes shall not be again planted or sown on the affected land without the sanction of the Department.
That no affected soil shall be removed from one part of a farm either to another part of the same farm or to another farm, whether within or without the affected area.
Obviously every single one of these conditions not only would apply, but would be absolutely essential in a case where the Colorado Beetle was, in fact, discovered in a certain area of potatoes. This Bill will apply not only to the first case of Colorado Beetle found in the country, if we have the misfortune to find such a case, but will apply also to any subsequent case. It could well be that in a certain area the Colorado Beetle would be almost endemic, and if we had to take precautions under the Bill to deal with the pest we would have to make regulations that potatoes should not be planted in certain places in the area, or if planted, should be planted under certain conditions, and we would have to make provision so that the stalks of such as were planted were destroyed, that the straw in which they were brought in should be destroyed, that the boxes should be destroyed, and so on. But can it be said that there is no likelihood that in a rare case a farmer will deliberately disobey these regulations? Everybody knows the trouble we had with the outbreak of Black Scab in Louth. On the one hand, a farmer wants to get the best price for his potatoes; he wants to get them to Dundalk or Dublin when there is a particularly good price there. He is quite satisfied to keep the law if there is a good price in England, because we allow him to export to England, but when the prices fall in England and are high in Ireland  certain farmers try to evade the law, some in an exaggerated way and others in a small way.
You can very well imagine a case of a farmer who thinks he is going to get compensation in every case, no matter what he does, saying: “Let the officials do what they like. I am going to take no trouble whatever; I am tired of the Department and their red tape regulations and I am not going to obey one of them.” Of course we can provide penalties, but we do not want to provide penalties, and it is to meet an odd case like that that we want “may” instead of “shall.” I have reconsidered this: I think Senator Johnson is quite right and I would ask the Seanad to support that point of view. In connection with the danger that Senator Linehan foresees, we are not operating in a country where people suffer from a lack of ability to express their thoughts. Everybody can be fairly vocal. The Press is at the disposal of anyone who has anything to complain of. The Dáil is there; the matter could be raised on the Estimates every single year; it could be raised definitely every time a regulation is made, because regulations must be laid on the Table. Moreover, questions could be asked of the Minister responsible; the matter could be raised on the adjournment of the House; the matter could be raised by a motion, and no Minister, except he had a very strong and clear case, could exercise the discretion, which I ask you to leave to me, of refusing to pay compensation. But perhaps there might be a case in which he should have that discretion. Having thought over the matter I am satisfied that the amendment should not be passed. The case will never arise if you leave the Minister the discretion, but if you take away the Minister's discretion the case will arise.
 The Seanad divided: Tá, 12; Níl, 20.
Amendment declared lost.
Mr. Linehan Mr. Linehan
Mr. Linehan: I move:—
Section 4 (b). To delete in lines 10-11 the words “appointed by the Minister for Agriculture” and to substitute therefor the words “by the Circuit Court Judge.”
The section says:
If such owner is dissatisfied with the amount of compensation so assessed by the Department he may by notice in writing to the Department request that the matter be referred to arbitration, and thereupon the assessment of the amount of such compensation shall be referred to and determined by a single arbitrator agreed upon by such owner and the Department or, in default of such agreement, appointed by the Minister for Agriculture, and the determination by such arbitrator shall be final.
My amendment proposes that in case of disagreement between the owner of the crop and the Department an arbitrator shall be appointed, not by the Minister for Agriculture but by the Circuit Court Judge. I think, considering the connection of the Minister for Agriculture with the Department, that it would be a more impartial method of making a selection of the arbitrator by having the appointment made by the Circuit Court Judge. That is so obvious that I do not propose to say anything further, but to leave the matter to the Seanad to decide.
Mr. O'Connor Mr. O'Connor
Mr. O'Connor: I beg to second the amendment.
Mr. Hogan Mr. Hogan
Mr. Hogan: I would ask the Seanad to let the Section remain as it is. This is in no sense a judicial question. It is really an administrative act that will be done under the Section as it stands, and I do not think the Senator has adduced any reason why people should be put to the trouble and expense of taking legal proceedings in the civil court to have an arbitrator appointed. The arbitrator to be appointed must be someone who has some technical knowledge, who knows the markets and the value of the various kinds of potatoes. The procedure we adopted here is the procedure that has been adopted in practically all the Acts analogous to this one, such as the Dairy Produce Act, the Live Stock Breeding Act, the Eggs Act, and the other Acts that we have passed, and I have never had any complaint in the Dáil—and we get complaints quick enough there—of the actions of any arbitrator. We have arbitrators appointed for the purposes of the Dairy Produce Act. Everyone knows who the arbitrators are. There is a panel, someone on it is picked out, and is operating every day. In fact the principal arbitrator under the Dairy Produce Act is a first-class creamery manager whom everyone knows and on whose judgment everyone relies.  He is asked to adjudicate in case of a dispute. There have been many disputes since that Act was passed, as it effects practically every creamery in the country, and never was it suggested that the arbitrator has not done his work impartially. I think that is much simpler, and much more effective, and certainly an equally impartial way of doing what Senator Linehan wants to do. Moreover, I think it is unsound to bring the Circuit Judge into a business which is purely administrative. It is not a judicial act in any sense; there is no question of law involved. I find it difficult to believe that there is any parallel for the proposal the Senator has made.
If the Seanad considers the number of Bills that have been passed dealing with diseases of animals, tillage of crops, and matters of  that sort, including the three Acts I have mentioned, and that up to the present there has been no real question as to the impartiality of the arbitrators, I think there is no case whatever for bringing a county court judge to function in a matter which is not judicial but purely administrative. I ask the Seanad to leave the section as it stands.
Mr. Linehan Mr. Linehan
Mr. Linehan: As the Seanad has already rejected my first amendment, and as the Minister, if he wishes, need not pay any compensation, it would be useless to get an arbitrator to fix the amount which would have to be paid when the Minister has the power to turn it down after.
Amendment by leave withdrawn.
The Seanad adjourned at 7.15 p.m. until Thursday, April 25th, at 3 p.m.
Seanad Éireann 12 Ennis Urban District Council (Dissolution) Bill, 1929— Destructive Insects and Pests Bill, 1928—Report.