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Dáil Éireann debate -
Monday, 14 Jul 1924

Vol. 8 No. 11

INTOXICATING LIQUOR BILL, 1923.

The Minister for Justice desires to make a statement on the Intoxicating Liquor Bill.

As I intimated last week, the matter of the exact position of the Intoxicating Liquor Bill of last year was referred for examination to the Attorney-General. A doubt was expressed as to whether it was not the duty of the Executive Council at the end of 270 days after that Bill had been sent to the Seanad to submit the Bill for signature to the Governor-General. It was taken, if there were such a duty, that it was a continuing duty. The Attorney-General has examined the matter and given it a great deal of consideration. He now advises me that the position is that the Executive Council, in accordance with Article 38 of the Constitution, are bound to submit that Bill for signature to the Governor-General and to put it into operation. The Bill was undoubtedly passed by Dáil Eireann, and it was also, in the opinion of the Attorney-General considered by Seanad Eireann, inasmuch as it came before that House in the ordinary way, was discussed by the members of that House, and was the subject of a resolution in the Seanad. The Attorney-General considers that that fulfils the requirements of Article 38 of the Constitution, and that the Bill was, in fact, considered by Seanad Eireann. He holds, therefore, that on the expiration of the 270 days mentioned in that Article, the Bill should have been deemed to have been passed by both Houses of the Oireachtas in the form in which it was passed by Dáil Eireann. It was, therefore, the duty of the Executive Council under Article 41 of the Constitution to present the Bill to the Governor-General for assent, and that duty is a continuing duty, and what has not been done must now be rectified and must be done. There is one point in Article 38 of the Constitution that might be worth referring to, to avoid any doubts or misunderstandings. The Article reads:—

"Every Bill initiated in and passed by Dáil Eireann shall be sent to Seanad Eireann and may, unless it be a money Bill, be amended in Seanad Eireann, and Dáil Eireann shall consider any such amendment; but a Bill passed by Dáil Eireann and considered by Seanad Eireann shall not later than two hundred and seventy days after it shall have been first sent to Seanad Eireann or such longer period as may be agreed upon by the two Houses, be deemed to be passed by both Houses in the form in which it was last passed by Dáil Eireann."

The words there, "Or such longer period as may be agreed upon by the two Houses," are of some importance in this connection. The question was specifically put to the Attorney-General as to whether that agreement would have to be come to prior to the expiration of the two hundred and seventy days, and his view is that it would need to be arrived at before the other period had expired, that the agreement between the two Houses prolonging the period could not be arrived at post factum, and that the period had expired. He advises that, once the period has passed in default of agreement prolonging it having been previously arrived at, the Bill is deemed to have been passed, and the only thing remaining to be done is to present it to the Governor-General for signature. That will be done without delay after the next meeting of the Executive Council. It may be arranged, perhaps, to ensure that sufficient notice will be given to the public and to the licensed trade, that the Bill will not be submitted for signature to the Governor-General until Saturday next, so that it will be operative law next week.

That raises the question of our intentions with regard to the current Bill —the Intoxicating Liquor Bill, 1924. It seems to me that there is really nothing to be gained by the Dáil giving a day or two days or possibly more to the Committee Stage of this Bill if we do not intend that it shall become law this side of the adjournment. Therefore, I would not propose to proceed with that Bill, unless the Dáil felt that we ought to proceed with its consideration and take all its stages in the hope that it would become law before the adjournment. Otherwise I would simply leave the Bill as it stands, and take it up when we meet again in October. I would, on Report, insert an Amendment in the Bill of this year repealing the Bill of 1923. It is for the Dáil to consider what course we ought to take with regard to this Bill that is at present before the Dáil. I do not know exactly how the view of the Dáil could be ascertained, or when it could be ascertained better than by a vote on the matter, all the Deputies voting freely. The Deputies when voting should advert to the fact that the alternative is that last year's Bill, or Act as it will shortly be, be operative until such time as it is amended or repealed by the present Bill. If we leave over the consideration of the present Bill until we meet after the Recess in October, then the Act of last year will be the operative law of the country in the meantime.

The Minister has raised two questions of very great importance. I am not able quite to understand the reasoning regarding Article 38. Everything that has been written in the newspapers, and I think what the Minister now said, seems to read this Article in a way quite different from that in which I read it. The Article says, and it seems the whole consideration, "not later than two hundred and seventy days after it shall have been first sent to Seanad Eireann." The Minister speaks as if it said "Not before the two hundred and seventy days" had passed. I simply call attention to that. I cannot understand the interpretation. On the question of the Constitutional right, assuming that the Minister's interpretation that "not later than" means "not before" is correct, I want to raise, as a precautionary matter, the question of Constitutional equity as distinguished from right. The Bill was passed by the last Dáil. There has been a dissolution, and a new Dáil has been declared elected. I think it would be unwise to create a precedent that would allow this clause in the Constitution to become operative between one elected Dáil and another. An election may have taken place. One could conceive that that election might have been decided on that issue. Discussions may have ranged round the very Bill which was held up by the Seanad. If, in such a case, a new Dáil is elected, then it seems to me to be essential, to carry out the spirit of the Constitution, that the newly-elected Dáil should declare itself in regard to the previously-passed Bill, and I think that the requirements of the case would be met by a simple resolution desiring that the Executive should put into effect Article 41. I think it is doubtful wisdom to assume that the body which passed the Act, having been dissolved, the new body elected should have no authority over the Executive Council in the matter of presenting a measure to the Governor-General for signature which has not been passed by the Seanad. I would urge that consideration be given to this point, and that before the matter is dealt with, if it is to be dealt with in the way the Minister has pointed out, and if that is decided to be the Constitutional requirement, the Dáil should have an opportunity of declaring either yea or nay to the proposition.

In regard to the Minister's other point respecting the manner in which the Dáil should indicate its wishes in regard to the present Bill, I would like to see the Bill passed. But I do not see now how it is going to be passed with due consideration. I suggest that the Minister should again test the feeling of the Dáil by a formal motion. The dilemma that the Minister seems to seek to place the opponents of the Bill in rather suggests that there is a necessity for testing the feeling of the Dáil on these two matters, and I think that should be done by formal resolution.

May I reply briefly to the points Deputy Johnson has raised. As I see it, the Executive Council and the Dáil alike are bound by the Constitution. The Executive Council, having sought the advice of its legal officer, the Attorney-General, has not, in practice, any real choice about following that advice. Deputy Johnson seems to suggest that we ought to put up a Motion here that the Dáil advise the Executive Council to comply with that particular Article of the Constitution. What would be the effect if that Motion were not carried? Does it mean that the Dáil, by Resolution, can over-ride the Constitution? Further, I would remind Deputy Johnson and Deputies generally that it is not a question of what we think ought to be in Article 38 of the Constitution. It is a question of what actually is in Article 38. We may think that Article 38 ought to have made provision for the case of dissolution, that the words should be contained therein "unless there shall be a dissolution in the meantime." But those words are not in the Article and, on a legal interpretation of the words of the Article, we are advised that we should have at the end of two hundred and seventy days referred the Bill to the Governor-General for assent, and that that is a continuing duty on the Executive Council. It is a duty which the Executive Council should perform immediately on becoming aware of it. As I say, the two hundred and seventy days expired some time back—I think towards the end of May. There has been a period in which we did not advert to a duty that was on us under the Constitution. A doubt was raised as to what the position was in connection with that Bill, and my duty clearly was to get that doubt resolved without any unnecessary delay. I referred the point to the Attorney-General, and his advice is as I have stated to the Dáil. Clearly, the Executive Council must get that Bill signed and put into operation. There is a method of challenging that decision, no doubt, but there is really no course open to the Executive Council but the course I have outlined.

The Deputy used an expression which might create a wrong impression, when he referred to the dilemma in which I was seeking to place the opponents of the present Bill. I can assure the Deputy and the House that this situation has not arisen through any desire on my part to place the opponents of the current Bill in any dilemma. It is simply one of these accidents and coincidences which do occasionally arise in life, that while the present Bill was under discussion someone raised the point as to what the exact position of last year's Bill was, in view of the fact that it had been passed by the Dáil and sent to the Seanad, and that more than two hundred and seventy days had expired. There is no Machiavellianism about the thing, no subtlety and no attempt to spring a mine on anyone. It is simply that circumstances have arisen creating that dilemma and the Dáil must now say whether they propose to leave over the present Bill until the autumn with the certainty of last year's Bill becoming operative in the meantime, or whether they would prefer to forge ahead with the present Bill with the view, or with the hope of it becoming law before the adjournment.

I have no desire to suggest any Machiavellian propensities or tendencies on the part of the Minister. There is a point in this matter of procedure which, I think, has not been adverted to either by the Minister for Justice or Deputy Johnson and which, I think it desirable should be considered in view of the very elastic interpretation of this Article. I presume that it is the business of the Executive to arrange the procedure of business in the Seanad as well as in the Dáil.

That is the point I wish to raise.

Under our Standing Orders the Executive Council has power to arrange the order of their own business here. I am not sure that they have any such power in the Seanad. I do not think they have, by Standing Order.

The Bill was sent up from the Dáil to the Seanad last July, about the time that the business of the session was being wound up, and finding themselves unable to deal with the matter, they passed a resolution postponing consideration of this Bill. A subsequent session comes along and the Minister for Justice has another Bill in preparation. The Bill that was sent to the Seanad was regarded as moribund.

May I remind the Deputy, as a matter of explanation, that I stated in the Dáil when last year's Bill was under consideration, when it became clear that a great many of its sections had to be sacrificed as ballast, I would go ahead merely with the question of hours and introduce a more comprehensive measure the following year.

The point I want to get at is not really affected by the statement of the Minister for Justice. It is this—that while there was another Bill in contemplation which would override the previous Bill, it would have seemed rather peculiar to have proceeded with that previous Bill in the Seanad, and, therefore, the matter was not proceeded with. If a contingency such as now emerges had been foreseen, and the Seanad had proceeded with the discussion of the Bill, they would have possibly made certain changes which would have been sent down to the Dáil again. In any case, the fate of the Bill would not have terminated at the end of two hundred and seventy days, as it did. The proceedings would have been protracted in the Seanad to a longer period. It would have been sent down here, and we would have been in the peculiar position of having to decide between the two Bills.

I think the Deputy is under a mistake. After a Bill has left the Dáil, it does not matter what its fortunes are in the other House; if the Dáil decides that it will not accept these amendments it becomes law two hundred and seventy days later in the order in which it had left this House.

I am pressing the point that it is due to the negligence of the Executive to indicate they wished this Bill proceeded with in the Seanad, that it was allowed to fall practically into the background without further action being taken. I stress further the point that it is under this curious construction of this particular provision in the Constitution, he resurrects this Bill and tries to make it law. I want to make this further point regarding this Bill. I do not wish to set myself against the considered judgment of the Attorney-General, but I do wish to have some grounds indicated upon which he bases the decision that because there was no agreement as to the length of time prior to the 270 days, therefore that agreement could be dispensed with. This provision expressly indicates that some such agreement in regard to the period must be secured.

Well, I think that that is a fair reading of that—"or such longer period as may be agreed upon by the two Houses." The Minister himself, I think, admits that there has been no agreement as to the time and how the Attorney-General, eminent though he may be in his profession, can read into that, that the agreement can be dispensed with, I do not know. I would like to have some ground upon which to base that conclusion. It may be a matter for amusement to the Ministerial benches, but still the poor unenlightened back-benchers would like to be informed on the matter. They have to consult their legal advisers and they would like to have transmitted the grounds upon which they were convinced that this was a true reading of the clause.

Does the Deputy contend that after the two hundred and seventy days have elapsed that the two Houses can come to an agreement to prolong the period?

I do. I am not quite clear.

It is because I am not quite clear myself that I want to get the thing made clear. The Constitution prescribes that "not later than two hundred and seventy days after a Bill shall have been first sent to Seanad Eireann, or such longer period as may agreed upon by the two Houses, be deemed to be passed by both Houses in the form in which it was last passed by Dáil Eireann." The ordinary procedure is that the Bill goes from Dáil Eireann to the Seanad and any day after the two hundred and seventy days, if no agreement has been reached, the Bill becomes law in the form in which it left us. Does the Deputy contend that after that time an agreement may be reached to prolong the period?

No, sir. That is not my contention. My contention is that when that provision has not been complied with after two hundred and seventy days——

Which provision?

That the Bill is deemed to be passed by both Houses.

But that provision is automatic.

Yes, but if that is automatic the Executive have not put it into operation——

The provision of Article 41——

And that to extricate them from that position there must be an agreement between the two Houses. There are so many legal experts here that——

This is a very interesting question. I only want to get the exact problem stated, if possible.

If I can understand the English language at all, or if they have any meaning at all, the words "or such longer period as may be agreed upon between the two Houses" mean that if there be an extension of time there must be an agreement between the two Houses. There has been an extension of time and there is no provision in this Article that there is, and that that agreement, that extension of time, can be regarded as legalised, or that the provision has not become null and void so far as this particular Bill is concerned.

There are two different things. A Bill is deemed to be passed by both Houses. That is one thing. The Bill is not then law. It has to be presented for signature. When it has been signed it becomes law. What is contended here appears to be this, that after two hundred and seventy days this Bill is deemed to be passed by the two Houses, and after that period, therefore, they can do nothing more with it. They cannot come to any agreement. They can come to an agreement while the two hundred and seventy days are running. After the two hundred and seventy days have run they cannot make an agreement about something which has passed from them. That seems to me to be the Attorney-General's opinion, as given by the Minister. This is a very interesting question, and I am not objecting to discussion. The question has been raised as to whether we could advise the Executive Council to carry out Article 41 of the Constitution. It would raise a very interesting point of order as to whether a Motion advising the Executive Council to carry out an Article of the Constitution which on the face of it appears to be mandatory, could be accepted at all. The position that we are in is that the Bill is deemed to be passed, and as far as we are concerned the position the Executive Council are in is that they are compelled by the Constitution to present it for signature, and that even if we did not want them to do it they could not agree not to do so; they would find themselves compelled to do it. I think that is the position.

I agree that it is a very interesting and difficult point, and, I am afraid, likely to be dangerous. The Executive Council has failed for so many days, according to the Minister's statement, and I am more or less obliged to recognise its validity, having re-read the article, to carry out the requirements of the Constitution. Will they be any greater culprits if they continue in that path of wrong-doing for a few more days?

The Minister says he is prepared to continue in this evil path for another week, until Saturday.

I said that at the next meeting of the Executive Council the necessary order would be obtained with regard to referring the Bill to the Governor-General for his signature, and that probably the Bill would not be signed until Saturday, or the Act would not be operative law until next week.

I am not really trying to play upon words. I am thinking of the possibility—might I almost say the probability, or the danger—that the Governor-General, in view of the circumstances, would refuse his assent. That would be a very serious and very difficult position. I would like to know whether arrangements have been made, for instance, or is it intended that there shall be regulations made regarding a Referendum, because this is distinctly a position which invites the operation of this Referendum Article, whether by the action of the Dáil or by the action of the Seanad.

Is the Referendum late in the case of a Bill of last year? I have not read the Article recently, but is it not late now?

"Any Bill passed or deemed to have been passed by both Houses... Such a Bill shall be in accordance with regulations to be made by the Oireachtas be submitted by Referendum to the decision of the people."

"Not later than seven days from the day on which such Bill shall have been so passed or deemed to have been so passed," but it is more than 277 days now.

It cannot be deemed to have been passed until it is sanctioned.

It is deemed to have been passed after 270 days, and the Executive Council have been so long in wrong-doing that the seven days extra have elapsed.

I would suggest to the Minister that he should continue in his wrong-doing and endeavour to get the present Bill through, even though we sit through August.

I would suggest that we should go on with the present Bill. The Minister for Justice pointed out that he would give us two days during this week and in those two days we might be able to put the Bill through. That would do away with all the legal arguments that may be put forward, and all the doubts as to whether the Bill of last year would be proper law at all. I would ask the Minister for Justice if he would give us these two days. He practically told us about ten minutes ago that he would do so, and that would mean repealing that terrible Act of last year. Bad as the one we have now is we will settle it in two days. I would like him to give us Wednesday and Thursday.

As far as I am concerned I will give the Deputy six months with a light heart. What I meant was that there is really nothing gained if we give two or three days to the Committee Stage of this Bill, and leave it at that. It would be better that we would have the adjournment and take up the Bill in October, when we meet again. Therefore, I would not propose to take up the consideration of this Bill again this Session unless it was the wish of the Dáil that we should proceed with it, with a view to putting it through all its stages, and with a view to its becoming law before the adjournment. It is simply that there is no use keeping Deputies here and postponing the adjournment merely for the sake of concluding the Committee Stage of the Bill. If the Dáil wishes to make the Bill law this side of the adjournment we will take it up, forge ahead with it, and send it to the Seanad in the hope that they would consent to it.

In the hope that they would do the same as last year.

Well, now, that is neither here nor there. But there is no use taking up the Bill and simply putting down a day or two or three on the Committee Stage, and leaving it at that.

I understood from the Minister for Justice that he said he would give us two days this week to finish the present Bill, and that that would repeal the Bill of last year.

We are prepared to continue to sit until the Bill is law, if that is the wish of the Dáil, and it is not a question of limiting it to two days, or three, or twenty-three.

But you know we only have four more days until Friday. I thought we were going to adjourn on Friday?

That is not statutory.

Nor in the Constitution.

This question has been sprung upon most of us since we came into the House, and I think that the fairest way would be to adjourn it, to take it as the first business to-morrow, and take a decision there and then as to whether we would proceed with this Bill or let the Bill that was passed last year become law. There are many Deputies I know who have an interest in this, and who are not here to-day, and who have had no notice of this. I think it would be very sensible to let it come up first to-morrow, and we need not waste much time. We could proceed with the present Bill or let it hang over until October.

I have not considered the matter in that way, because I had no notice of this particular point. The Bill has been ordered for Committee and it is before us in the ordinary way to go on with, but if the Minister said that he wanted to stop we could discharge the Order. Otherwise, if we are to get a decision on the Bill, a motion, for example, that the Bill be not proceeded with, could be taken at any time.

That is the very point which I think we should not decide to-day when we have less than forty members present. Although I am prepared to vote upon it, I think a responsibility of that kind should be laid on the eighty-three members who attended at the Committee Stage. I am prepared to support the suggestion of Deputy Hughes with the qualification that it should be taken on Wednesday so that members will have time to get here by then. I think everybody who supported the Second Reading would, to be consistent, be anxious to see the Bill go through. I hope that the Minister will not decide to spring the motion upon the House, although I believe he would be justified in doing so in view of his statement on Friday and the fact that it is on the Order Paper. I think if we were to proceed with the Bill and give it final consideration the Seanad would do the same as they did previously, turn down the Bill and leave us another two hundred and seventy days before it could be dealt with.

I was not suggesting to take a motion not to proceed with the Bill to-day, but I was pointing out that that is the method, whenever it would be taken, by which we would get the decision of the Dáil.

In that case I suggest that the Bill be put down for Thursday. I intimated to Deputy Cooper that we would take the Army Estimates on Wednesday, and it would not be fair in his absence to break that agreement.

Put down the Bill and let anyone then put down a motion under which the decision of the Dáil shall be taken on Thursday.

Do I understand that the Bill of last year automatically becomes law?

I think so, when signed.

Deputy Johnson suggested that we should continue in our wrong-doing. The Deputy knows the legal phrase, mens rea. There is no mens rea in the Executive Council up to the present, but there would be if we continued to omit our duty.

I do not know what the phrase means, but I can guess. Perhaps the Minister could tell us what the penalty is.

As bad conscience.

Surely there is responsibility on the Executive Council in this matter in allowing two hundred and seventy days to run without raising the matter in the Seanad. As I am told—I was not a member of the Dáil at the time—it was taken up on the last day of last Session, and was not rejected, but postponed by the Seanad. In the interval the matter has not been raised in the Seanad, and can they be taken as having rejected a measure which was not brought up? I think it is an important point constitutionally, because whatever decision is come to it is obviously going to bind procedure in future, and if it is going to be the procedure in future that if a Bill goes through this House and gets no decision in the Seanad, it automatically become law at the end of two hundred and seventy days. That seems to me to be a very dangerous position.

On the matter of this year's Bill, which it is proposed to discuss whether we take it further on Thursday, if the general opinion of the House can be sensed in any way I think we can be fairly satisfied generally that the House will not proceed with the Bill. If it comes up on Thursday and there is a decision not to proceed with it at present, I support the idea that the Bill of last year becomes law. We would then be up against the difficulty of which Deputy Johnson speaks, that this Bill is coming into law in peculiar circumstances, and there may be a feeling in the House that the Bill of last year would not get their approval if it passed through the House. You may have, incorrectly or wrongly, an impression in the country that this Bill of last year which is to come into law, is a kind of illegal and wrong thing, and you might have a movement in the country to oppose it. I think that it is quite possible that we might get into difficulties in the country owing to a movement to oppose the Bill which would come into law under present circumstances. In order to safeguard a position like that, if we decide on Thursday not to proceed with the present Bill, the Minister has not got the opinion of the Dáil with reference to last year's Bill. He could then put forward a Motion to repeal last year's Bill. I make this suggestion, not to have last year's Bill repealed, because I would not be in favour of repealing it, but in order to get the opinion of the House that it is right that last year's Bill should stand. I suggest that the Minister would put forward to the Dáil a Motion on these lines, say, on Thursday, if he comes to sense in the meantime that the decision of the House will be not to proceed with the present Bill.

There is an important consideration that has not been dealt with. The articles of the Constitution lays the duty on the Executive Council to lay before the Governor-General for his signature, a measure as soon as it has been passed or deemed to have been passed. Consequently, at the expiration of nine months that became, under the Constitution, the duty of the Executive. That has not been done. Suppose to rectify the omission the Bill is now signed, signed say, as the Minister mentioned, on Saturday next. It then becomes statute law. Now, in that way between Saturday, and the coming into law of the present measure, every judge on the bench from a District Justice upwards, will be obliged if counsel acts upon the law to treat it as a law, notwithstanding any intention on our part here to rectify, to modify, or to repeal it altogether. I would suggest with all respect that the easier way in view of the difficulty that has arisen through mere oversight, even with a guilty conscience, the mens rea, is to let the matter remain. No harm has been done, and as Deputy Johnson said by way of incidental remark, no penalty is incurred.

Would not the penalty be impeachment or Bill of Attainder or something of that sort?

Would the Deputy introduce it?

The penalty would be the creation of a precedent.

That is a serious penalty.

Suppose my Sweepstake Bill got as far as the Seanad, and was allowed to remain there for two hundred and seventy days, what would be the position?

That is a good example. I do not want to be making difficulties, but it has occurred to my mind that if the Bill is not signed until Saturday, it would be impossible to bring in a repealing Bill on Thursday.

I would not, in order to get the view of the Dáil, that the Bill should stand, bring in a Bill repealing it.

On this matter I am not thinking of this Bill, but of other Bills being introduced by the Dáil and being sent to the Seanad. The Seanad is to be an elected Chamber, but the Seanad is subordinate. The Dáil is supreme as far as legislation is concerned, but supposing a dissolution takes place, and the country decides definitely on that Bill, and declares that the Dáil is not competent and worthy of confidence. Notwithstanding that I think the Minister's interpretation is right. At first I thought it was wrong. The procedure is that the Dáil has passed into law a certain measure the country disapproves of, and has elected a new Dáil to supplant the old one. There, I think, the obvious procedure is the one outlined by Deputy Mulcahy that the new Dáil must repeal the Bill. I think that is the position.

Supposing, after the Bill has passed the Dáil, there is a dissolution, and the Seanad approves of the Bill without making any amendment whatsoever in it, I think undoubtedly then it does become law. In the present case, the Seanad did not make any change in the Bill. I suggest that was the fault of the Seanad. It did not exercise the rights it had. The Seanad had an opportunity and failed to exercise the opportunity. I do not see any failure on the Executive Council in that respect.

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