Dáil Éireann debate -
Friday, 4 Jul 1924

Vol. 8 No. 5

DAIL IN COMMITTEE.

Mr. O'HIGGINS

I want to refer to the form in which sub-section (2) of Section 7 and sub-section (2) of Section 8 left the Dáil and to compare or contrast them with the present form of the Bill. Section 7, sub-section (1) provides

"that the Minister may with the sanction of the Minister for Finance from time to time, by order, regulate and appoint rates of pay and allowances, including conditions applicable thereto, to be paid to the several ranks and to the several grades of each rank, of officers and men, of the Gárda Síochána." Sub-section (2) went on to state "Every order made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and if a resolution is passed by Dáil Eireann within the next subsequent 21 days on which Dáil Eireann has sat annulling such order, such order shall be annulled accordingly but without prejudice to the validity of anything previously done under such order and any recommendations in respect of such order which shall be made by Seanad Eireann within the said twenty-one days shall be duly considered by Dáil Eireann."

The important thing there is sub-section (2) of Section 7. It was considered that these regulations with regard to pay and allowances were strictly analogous to money legislation and that the procedure with regard to money legislation, and the relative powers of each House with regard to money legislation, should be adhered to in accordance with Article 35 of the Constitution. It is not claimed there is an identity. These regulations are regulations, not legislation; but there is a very real analogy between regulations dealing with pay and allowances and money legislation. We felt that the proper thing to do in accordance with the spirit of the Constitution was to follow the same procedure and to assign to each House the same relative powers as they would possess with regard to a Money Bill. That idea has been challenged in the Seanad, and the Seanad has inserted these amendments, No. 1 and No. 2, claiming the same power with regard to these money regulations as the Dáil. The principle underlying Article 35 of the Constitution, as I take it, is that the moneys levied from the people in taxation shall be disposed of only by the vote of those who are elected directly by the people and who are responsible directly to the people. If we agreed that that is the underlying principle, then that principle applies equally to these regulations which are covered by Sections 7 and 8 of the Bill.

I am not claiming, and do not wish to be taken as claiming, that the Seanad by the insertion of these amendments, have contravened the letter of the Constitution. They have, I contend, contravened the spirit of the Constitution and contravened the principle which underlies Article 35 of the Constitution. It is well that the Dáil should know that, but despite these considerations which I have urged, I intend to ask the Dáil to accept amendments 1 and 2. I will state very clearly my reasons for that course. The temporary Act under which the Gárda Síochána are at present functioning expires this month. If in the meantime this Bill has not become law the members of the Gárda Síochána will have as much and as little powers of arrest as the members of the Dáil. They will have exactly the same powers of arrest. That is not a situation which I would like to see coming about and I do not think that we, even, should take the chance or the risk of such a situation coming about. Moreover there is this fact—that if in the future, the Seanad should annul regulations under either Section 7 or Section 8, and if the Minister or the Dáil felt that such regulations had been unreasonably annulled, or unproperly annulled, it seems to me that the obvious course for a Minister in such a situation would be to insert before the regulations "Be it enacted by the Oireachtas of Saorstát Eireann that," and to pass these regulations in the form of a Bill through this Dáil. I am not asking any ruling from the Ceann Comhairle in the matter but I venture to express myself the opinion that if that were done, such a Bill would be certified as a Money Bill and the maximum powers of the Seanad in the matter would be the powers, as defined in Article 35 of the Constitution; powers of recommendation, these recommendations to be considered in due course by the Dáil but to be in no sense mandatory on the Dáil.

That is the position. I disagree with the action taken in the Seanad in regard to these two sub-sections. I think the amendments they have inserted are at any rate contrary to the general principle underlying Article 35 of the Constitution. I am not contending that they have contravened the letter of that Article but at the same time I submit to the Dáil we should not risk a situation in which the Gárda Síochána would really have no statutory basis and would have no more and no less powers of arrest in the country than civilians. I do suggest, that if in the future, the Seanad were to act unreasonably with regard to these regulations dealing with pensions, pay, and allowances, of the police forces that any Minister in my position would simply put these regulations through the Dáil in the form of a Bill. It would be passed through all its stages in one day and that Bill might be reasonably expected to be certified as a Money Bill. I have decided to ask the Dáil to accept these two amendments but I thought it proper to explain very fully to the Dáil, and as clearly as I could, the exact significance of them and to state at some length my own views with regard to them.

Mr. JOHNSON

I am going to support the motion, but I want to say a word or two with regard to what the Minister has said. I do not feel that he is justified in taking the stand which he has taken. He said that while the letter of Article 35, no doubt, has been complied with the spirit has not.

Mr. O'HIGGINS

I would prefer to put it negatively rather than positively and say that the letter of Article 35 does not seem to have been contravened but that I suggest to the Dáil that the spirit and principle of Article 35 have been contravened.

Mr. JOHNSON

It is a matter of opinion as to what the spirit is. I judge the spirit by the letter in this case, inasmuch as the second paragraph of the Article goes to considerable pains to define what is meant by a Money Bill, and as far as I can read it, there is nothing there which would suggest that a Bill which contains provisions relating to the conditions of service in the Gárda Síochána can be held to be a Money Bill. The regulations which the Minister has proposed to make, or the orders which may be made, under this section are to deal with conditions of service and, as I hinted yesterday, there ought to be some security for the men engaged in that service by which their conditions or their pay may not be variable entirely at the will of the Minister for the time being without check. The check of the Dáil, one would have hoped and expected two years ago, would have been more likely to be effective than the check of the Seanad, but my experience of the last two years shakes that faith, and I am looking forward to a Seanad which will be as directly representative of the electors as the Dáil is to-day, or purports to be, I think that the Seanad was entitled to claim that orders should be liable to the veto of the Seanad as well as to that of the Dáil when you are dealing with conditions applicable to service in the Gárda Síochána. The Minister suggests a possible method which he would have to apply in future, namely, the introduction of legislation, and even suggests that it will be possible to pass such legislation in the Dáil in one day. That is, I hope, an expectation which will not be fulfilled except in very grave mergency.

I think that my desire in this matter would be better satisfied if we adopted the practice, not of putting orders or regulations on the Table, leaving them there to be read or not as Deputies may think well, then waiting for twenty-one days to pass, and if no motion is brought forward disagreeing or disapproving of the orders, they automatically come into operation. If, instead, we adopt the practice that every order or regulation shall be formally brought before the House, and shall be subject to a resolution of approval, the need for legislation in this matter would probably not be so great and not be necessary at all. It would be better practice to get formal approval of any regulation or order of this kind than to wait for positive disapproval. I think, in this case, when we are dealing, not merely with the collection or the spending of money, but with the terms and conditions on which money shall be paid to any public servant, that the Seanad is justly entitled under the Constitution to take the line it has done.

Mr. DARRELL FIGGIS

I think the Minister did rightly to raise this matter here because, although the question itself might not be judged to be of very great importance, its commitments in regard to these constitutional implications are of very considerable importance. They do really call up a controversy that has engaged a very considerable amount of attention in other legislatures. The actual wording of Article 35 is in very great part an echo of these earlier controversies. I think it will be found that the wording has been carefully designed to be inclusive of all matters that might justly be certified as belonging to the prerogative of the First House, and that the spirit and intention of that proviso are carefully covered and also that it cannot be really argued that there is a contravention of the spirit if there is not a contravention of the letter, because the letter has been designed very carefully not only here, but in the drafts which are embodied in this, so as to include every possible kind of question.

Mr. O'HIGGINS

When I made this statement that there was no contravention of the letter of Article 35 I meant this and no more: that these regulations are regulations under Bills and therefore are not covered specifically by Article 35, but they are regulations which are analogous to legislation and my contention was that the analogy should have been adhered to when we were deciding the relative powers of each House and so on, and the procedure and relative powers of each House should be the same as Article 35 prescribes for legislation. Clearly these are money regulations, setting out the pay, allowances, and pensions which shall be paid to members of a particular police force, and are not Bills, but I am contending, if the subject-matter of these regulations were embodied in a Bill, that Bill from my view, would be certified as a Money Bill.

Mr. DARRELL FIGGIS

I had gone one stage further than the Minister and assumed that if these matters, instead of being embodied in regulations were embodied in the provisions of a Bill, the Seanad would still have a function. I recognise in dealing with a matter of this kind, that one is necessarily dealing with it—the Minister also recognises that from what he said—under very great difficulties, because these are difficulties where you, sir, would have the decision, and no one has a right or desire to take such decision from you, and we are discussing by conjecture what you might, or might not do, under conceivable circumstances.

Nevertheless the matter is of some importance, and where I think the difference occurs is this, that if these regulations were embodied in a Bill decreeing exactly what the salaries of certain persons were to be and the terms and conditions of their services, then the Bill, not being a Bill that specifically allocates money for these purposes, is legislation and not a money Bill. If the various matters in Article 35 are taken one by one—and I have had an opportunity of examining them one by one and of analysing them from this very point of view—it will be found that they have all been specifically designed to let through legislation, the effect of which may be the spending of money as distinct from legislation, which itself orders the spending of money. That is why I think, in respect to legislation the effect of which is the spending of money, the Second House would have a function, whereas as regards legislation which itself orders the spending of money, although the difference seems to be a distinction without a very great difference, it has been hitherto the case in the precedents from which this Article has been drawn, that in the first the Second House would have a function of criticism, but in the second it would not have that function.

Mr. O'HIGGINS

Criticism, yes.

Mr. DARRELL FIGGIS

I meant criticism to the extent of amendment. As I said, this is a matter where you, sir, have to establish precedents of this kind, and I imagine everybody is heartily happy that you have to do so. I am only giving my own personal view, seeing that it has been raised here, that after very careful consideration of Article 35, in regard to each of the separate items between semi-colons, the Seanad not only observed the letter of it, but, in observing it carefully, they intended to include every matter that could be excluded from its intention. Even if the regulations were not regulations, but were clauses of the Bill, still the Seanad would have a function equal to any function it exercised in normal ordinary legislation.

Mr. JOHNSON

I would like to suggest that my point in this matter is entirely on the words, "including conditions applicable thereto." That is, applicable to rates of pay and allowances. Inasmuch as the same question arises on the next section, I may point out that the conditions which the Ministed may by order apply to pensions and gratuities may be such as to bring them within the sphere of legislation, certainly within the scope of consideration by the legislature, not merely by the Dáil. That is to say, they include more than the actual payment of money; they include conditions which have to be complied with before money can be paid. Those conditions, even within the scope of this Bill, may vary considerably at the will of the Minister, and if we allow a Minister to make conditions of the kind, which, even within the scope of the Bill, may be variable as between one class of officer and another; between one class of Guard and another, it seems to me to require that the legislature should have the right of veto, and that the Seanad ought to be allowed to deal with a matter of that kind equally with the Dáil. If we were dealing only with money, I think the Minister's contention would be right. Where he has a phrase such as this, "including conditions applicable thereto"—that is applicable to payment of and rates of pay and allowances within the phrase and within the scope of the Bill—many varying conditions may be made by the Minister which ought to be subject to criticism by the legislature.

Amendment put and agreed to.

Mr. O'HIGGINS

I beg to move that the Dáil agree with the Seanad in the following amendment:—

In Section 8 (2) all the words after the word "by" in line 56 deleted, and the words "a resolution of each such House" substituted therefor.

This amendment raises the same point, and I move it with the same reservation that I made in the previous amendment. I think it is wrong that an assembly, composed as the Seanad is, without any constituents, without any responsibility, in the political sense, should deal with moneys levied in taxation from the people. "Pensions, pay and allowances"—these are matters of finance, matters of money, and if the Seanad says that such a rate of pay is too high to pay to members of the police force, or, alternately, that it is too low, and on that ground annuls regulations, then you have a position in which men who were not elected by the people—some of whom were nominated by the President, and some of whom were selected by the Dáil—are interfering directly in matters of taxation. If the Seanad were to say that the rate of £3 per week is not enough for the Gárda Síochána, and that it ought to be £6, or alternately that it ought to be £1, or £2, you have direct interference with taxation. It comes to that.

Mr. DARRELL FIGGIS

I agree if it comes to that.

Mr. JOHNSON

"If."

Mr. O'HIGGINS

The principle is wrong, and is recognised by Article 35 of the Constitution to be wrong. I believe myself that no great harm is done by acceptance of the amendment because any Minister in the future who felt that his regulations had been unreasonably or improperly annulled by the Seanad would take the road of legislation. I submit regulations with the words "Be it enacted by the Oireachtas" before them, would in due course be certified as Money Bills.

Mr. JOHNSON

I must again make clear that the Minister in his protest has misrepresented what I believe to be the intention of the Article of the Constitution, and the contention of the Seanad. He says if the Seanad desired to interfere with questions as to the rates of pay, that they ought not be entitled to do so in the spirit of the Constitution. That is not the point. If you had a Minister for Justice, and a subservient Dáil, prepared to say that one of the conditions applicable to fixing the rate of pay should be that a man shall be a member of a trade union or that he shall not be a member of a trade union, or that he shall never have been a member of a trade union—that, I say, is a condition that ought not to be taken out of the purview of the Seanad.

It is in effect a legislative enactment. It is not dealing with the rate of pay or the payment of moneys. It is dealing with conditions which might well be reserved to legislation, and it is because of the possibility that the Minister might make a condition applicable to the pay of the members which ought not to be allowed to pass without criticism, and if to be criticised, being in the nature of legislation, it ought to be criticised equally by the Seanad as by the Dáil.

Mr. O'HIGGINS

In the matter of explaining my own position quite clearly, I want to say that the Deputy is using the word "condition" there in far too broad a sense. He is really speaking rather of the conditions of membership than the kind of condition referred to under sub-section (2) of Section 7. This regulation will deal with pay and allowance and pension; only. The Bill, as a whole, may be said to be dealing with the conditions of service of the police forces and conditions of membership and so on. One cannot talk about these regulations until they are in being, but with the samples and precedents of those regulations before me, I contend that they deal with money and money only and in their terms will be found to fulfil the conditions necessary for a Money Bill.

Amendment agreed to.

Mr. O'HIGGINS

I ask the Dáil to agree with amendment No. 3, which is in Section 12, the words "to all intents and purposes," in line 35, be deleted. The amendment simply deletes words that on consideration were found not to be necessary or not useful in the Bill.

Amendment agreed to.

Amendment 4.—In Section 23. The words "Home Affairs" in line 29, deleted and the word "Justice" substituted therefor.

Mr. O'HIGGINS

I move that the Dáil agree with the Seanad in this amendment. It is rendered necessary by the Ministries and Secretaries Act which came into operation since the Bill was introduced.

Amendment agreed to.

Amendment 5.—In Section 24 (2) the word "this" in line 35, deleted and the word "that" substituted therefor.

Mr. O'HIGGINS

This amendment is simply to rectify a slip in drafting.

Agreed.

Amendment 6.—In the Second Schedule the words "Ard-Comhairle" in lines 3-4, deleted and the words "Executive Council" substituted therefor.

Mr. O'HIGGINS

This amendment is introduced to meet a point raised by Deputy Johnson when the Bill was before the Dáil, that is, that as the term "Executive Council" was used in Sections 1 to 4, it was desirable to continue the use of the term in the declaration.

Amendment agreed to.