Dáil Éireann debate -
Friday, 19 Jun 1925

Vol. 12 No. 12

DAIL IN COMMITTEE. - DAIL IN COMMITTEE—RULE 2.

MINISTER for EXTERNAL AFFAIRS (Mr. Fitzgerald)

I intend to move the amendment standing in the name of Deputy Duggan:—

Na focail seo a leanas a chur i	ndeire Riail 2, leathanach 1:—
To add at the end of Rule 2,	page 1, the words:—
“agus nuair a beifar ag déanamh na n-ainmniúchán san ba cheart féachaint chun an riachtanais atá le hionadaíocht do sholáthar do leasanna agus d'fhundúireachtaí táchtacha sa dúthaigh do réir forálacha an Bhunreachta.	“and in making such nominations regard should be had to the necessity for arranging for the representation of important interests and institutions in the country in accordance with the provisions of the Constitution.”

Mr. JOHNSON

Will the Minister give us his reasons for this amendment?

Mr. O'HIGGINS

The reason for the amendment is simply to make explicit in the motion the provision of the Constitution, that candidates selected for this panel for the election should be of a certain character and possess certain qualifications set out in the Constitution.

Mr. JOHNSON

I desire to oppose the amendment. I think it is a mistake to say that it is requisite for the purpose of fulfilling the provisions of Article 33 of the Constitution.

Article 30 states:—

Seanad Eireann shall be composed of citizens who shall be proposed on the grounds that they have done honour to the Nation by reason of useful public service or that, because of special qualifications or attainments, they represent important aspects of the Nation's life.

Article 33 undoubtedly says:—

The method of proposal and selection for nomination shall be decided by Dáil Eireann and Seanad Eireann respectively, with special reference to the necessity for arranging for the representation of important interests and institutions in the country.

But this does not propose to make any provision in respect of the rule or proposal to provide for this special class of representation that is supposed to be contained in Article 33. The motion is a general motion of rules confining the powers of Deputies. The amendment expresses the aspiration that Deputies should have regard to what is alleged to be the intention of the Constitution. If it is desired to include in these rules something to fulfil the latter part of Article 33, some change would have to be made in the form of these proposed rules, something additional to the rules, so as to provide for special representation of important interests and institutions. If that is the intention, this amendment does not fulfil the intention, but it might be held to throw an obligation on someone, probably the returning officer, to rule out any individual who might be selected, on the grounds that the nominator had not had regard to important interests and institutions. That would be an obligation placed upon the returning officer entirely beyond reason, to ask him to be a judge upon either the character or the qualifications of the person nominated, or alternatively the motives of the nominator, whether in making the nomination he had in fact had regard to special interests or institutions. For these reasons alone, I think that the amendment is not justified and cannot be held to fulfil the requirements of Article 33 or of Article 30. But I wanted to add a little to that, in view of certain ideas which seem to prevail regarding the constitution of the Seanad.

I quoted Article 30, saying that the Seanad shall be composed of citizens who shall be proposed on the grounds that they have done honour to the nation by reason of useful public service, or that because of special qualifications or attainments, they represent important aspects of the nation's life. It is being held in some quarters that that imposes an obligation upon Deputies, in making these selections, to think only of persons having particular associations, having had antecedents of a peculiar kind, having had a peculiar class of education, or, possibly, having had a greater share than normal of the good things of this earth. Nobody who has read this Constitution with care, and certainly no one who was present in the Provisional Parliament which discussed it, can have any doubt that it was intended in this Article that any good citizen who had done useful service for the nation is qualified for representation in the Seanad, provided he fulfils the other obligation regarding age. There is no provision in the Constitution which imposes upon us an obligation to think in particular directions in making selections to the Seanad. "People who have done honour to the nation by reason of useful public service." All useful public service does honour to the nation, and I hope we shall some day arrive at the general view that only doing useful service will bring honour to the nation. We must not allow it to go out that the Seanad is to be a select preserve of a particular type of citizen, but that it is open to all citizens who have done honour to the nation by reason of useful public service. I say that the amendment is not a fulfilment but rather a restriction of the rights of Deputies, and the obligation upon Deputies in respect to Article 30, and that it would impose a responsibility upon the Returning Officer to inquire into the qualifications of persons nominated, or to inquire into the motives of the proposer or seconder.

Major COOPER

I do not entirely agree with Deputy Johnson's views as to the functions of the Seanad in future or its position, but I do agree with him that this amendment is certainly useless and possibly dangerous. It is very right that the provisions of Articles 30 and 33 of the Constitution should be in the minds of Deputies when they receive the voting paper. They should then consider what institutions are represented in the Seanad and what are not, and how we can best supply the need. It is very fitting that these thoughts should be in the minds of the electors when the election comes on. But now we are dealing with nominations, and the effect of this amendment would be to compel every Deputy in making a nomination to consider the whole position of the country and, if strictly interpreted, it would compel each Deputy to nominate as many people as he thought would represent every interest and every profession fairly. I do not think that is possible.

We have already, in the preamble, quoted this passage. The resolution will be considered with reference to the preamble. I can see no necessity for the addition of these words at the end of Rule 2. As it is, we have to satisfy ourselves, and three other Deputies, that the person we nominate is a worthy and suitable person. I think that is a sufficient test. I do not think that we can, in addition, satisfy ourselves as to the degree to which he represents some interests. We have also to satisfy ourselves that he represents important aspects of the nation's life. I do not think that adding these words does anything to strengthen that. I think the President has all he needs in the resolution, as originally drafted, that this is unnecessary, and merely repetition, and I ask him to reconsider the amendment in that light.

The PRESIDENT

The amendment is proposed, so that under no conceivable circumstances could it be alleged that we are not carrying out the spirit and letter of the Constitution. I quite admit, as far as the written word is concerned in the Constitution, that it does depend, and will depend, upon the integrity, wisdom and judgment of members, both of the Dáil and Seanad, as to how the selection of persons who appear on the Seanad panel is going to be effected. The fact is that Article 33 of the Constitution lays down in the last paragraph:—

The method of proposal and selection for nomination shall be decided by Dáil Eireann and Seanad Eireann respectively, with special reference to the necessity for arranging for the representation of special interests and institutions in the country.

In formulating these rules it will have been observed that every possible precaution has been taken to ensure that, as far as the wording is concerned, we have complied exactly with the terms of the Constitution. I will admit —I think it would be admitted by anybody who makes an examination of this matter—that whatever precautions we may take to effect the purposes of the Constitution, one can only take these precautions. These are water-tight rules, which no person can afterwards bring into court and endeavour to prove that, in any of the proceedings that we have taken with regard to the nomination for the election of Senators, any important particular had been neglected. A careful examination of them reveals the fact that that particular reference to the necessity for arranging for the representation of important interests and institutions in the country had not been included.

The Deputy argued quite reasonably that there are certain important interests and institutions which will be attended to by the members of the Dáil or Seanad. But it can be equally argued that they have left out one particular one, perhaps. The fishing industry, for instance, is an important institution. It is more than possible that you will not have a person representing that particular interest in the nominations. At any rate, we have brought to the notice of members of the Dáil and Seanad—I believe the Seanad is doing this also—that due regard must be had to the necessity for providing for these institutions.

It will be within the recollection of Deputies that when the Seanad was first set up it was suggested that I should get in touch with a great number of institutions through the country. I did get in touch with them, and they made recommendations which I did not find myself at liberty to accept. Most of the institutions in question recommended their own members—took the narrow parochial point of view. We took a different point of view. So far as the thirty nominations made by me as President were concerned, I sought to have represented in the Seanad a variety of important interests, and I think I succeeded in doing that. I am perfectly satisfied that the insertion of these words will not effect the representation of important interests and institutions in the country any more than if they were not there, but it cannot be alleged against us that at least we did not take the precaution of bringing to the notice of Deputies the fact that the terms of the Constitution were, that due regard should be had to the necessity for representation of important interests.

Captain REDMOND

I only desire to say that I incline to the opinion expressed by the President in regard to this amendment. The wording of it is of very great importance. It is, to my mind, in no way a mandatory proposal. It merely brings to the notice of Deputies the Articles of the Constitution which determine that, in the selection of members for the panel, regard should be had to the desirability of giving representation to important interests and institutions. As the President said, the amendment will possibly make no difference whatever in the actual selection made. To my mind, it is merely a pious prayer asking Deputies to bear in mind when making selections that they should make them—not that they must make them—having regard to the various important interests and institutions.

The distinction is a very great one. It is merely asking Deputies not to lose sight of the provisions of the Constitution. That being so, I do not see what harm it will do. It is merely elucidating and, in a certain sense, explaining and re-detailing the provisions of the Constitution. I do not think it is in any way, as Deputy Johnson suggested, a restrictive amendment. I do not think it imposes any limitations whatsoever, and, as one Deputy, when I am making my selection, I certainly shall bear in mind the desirability of representation of various institutions and interests. That will not make me feel that I have got to, and that I must make certain selections in that direction. As it stands, I think the amendment imposes no mandatory obligation upon Deputies. It merely brings to their notice the existing provisions of the Constitution.

Major COOPER

Deputy Redmond is talking about selections. This amendment deals with nominations.

Captain REDMOND

Nominations, rather.

Major COOPER

His whole argument was applied to selections, and I agree it is a perfectly valid argument.

Captain REDMOND

I would address the same argument in regard to nominations.

Major COOPER

There is a great difference. When you select you have the names before you, and you can realise to what extent every interest is likely to be represented. But when it comes to nominations, how am I, for instance, to know whom Deputy Wilson is going to nominate? One cannot go round the whole Dáil and ask Deputies, "Whom are you going to nominate?" and then consider carefully whether any interest is unrepresented. Deputy Redmond talks of this as a pious prayer that should be in the Preamble and not in the rule. It is in the Preamble; we are reminded of it in the Preamble. We acknowledge that all the President's actions towards the Seanad have been designed to make it representative of opinions that would not otherwise have found expression there. It has been for the good of the country that the Seanad has included in it men of very different views. The President is entitled to receive credit for that, but I think he is carrying his desire for representation on the Seanad a little too far when he endeavours to impose this duty on us. I know he means it all in a spirit of utmost fairness; but he is asking us to do an impossible thing. We cannot do it, because we do not know the nominations that other Deputies are going to make. I honestly suggest that the President is asking too much. Admittedly, the insertion of the words will not have any great effect. I suggest that the omission of those words will not seriously injure the resolution.

Mr. SEARS

I beg to support the views of Deputy Redmond in this matter. I think that not alone would his argument apply to selections, but it would very strongly apply to the nominations. Many Deputies may not have read the Preamble. When they are going to make nominations it would be well for them to have the Preamble before them. Deputy Cooper said that if he was going to nominate some person he would be in the position of not knowing the persons other Deputies would nominate. Suppose, for instance, Deputy Cooper knew of a very important interest in the country that it would be well and advantageous for the country to have represented, would he not take very great care to ascertain whether anyone representing that interest had or had not been nominated? If he ascertained that such a person was not nominated, he probably would nominate him himself. There is another consideration. Deputy Redmond said that this provision will do no harm. I agree with him to the extent that it might prevent possible error. Let us assume there was a very important interest in the country— take it that the nominations are all made, and that the ballot papers come before the voters in the country—and suppose 25 or 50 per cent. of the voters are anxious to have an opportunity of voting for someone representing that important interest. They will realise that it is not possible to vote for such a person because the Dáil had not nominated such a person. Members of the Dáil might say that that interest was not brought to their notice, and if they knew of such an important interest they might have nominated a person connected with it. If the Government were able to point to those words in the amendment it would be very important.

Mr. DAVIN

The President made a significant remark. He stated the Government, and he himself particularly, were very anxious to see that nothing was left undone to give effect to the carrying out of the spirit and the letter of the Constitution in the setting up of the Seanad. Everybody agrees that every interest, excepting the interest that does not recognise the Constitution, has got fair and reasonable representation in the Seanad. However, the fact that the largest party next to the Government Party is still outside the House proves that it is impossible to give effect to the directions contained in the words of this amendment. No matter how much it is to be regretted—and it is regretted by certain members of the House, if not by all— that the Republican Party represents an interest in the country and has a following, and no matter how we may try to carry out the suggestion contained in this amendment, if it is carried, the fact will remain that the people they speak on behalf of will not be represented in the Seanad. It seems to be the desire of the President, and with him, I suppose, the Government Party, that the same procedure should be adopted in connection with the nominations that are going to be made as was adopted in the setting up of the Seanad. If that is so, what would be the result? If we are going to give representation in the same proportion to the interests that got representation at the setting up of the Seanad, we will reduce to a very great extent——

The PRESIDENT

Will the Deputy say when and where did I give expression to the views that he has now expressed? There were two particular courses adopted in connection with the setting up of the Seanad. If the Deputy means the nominations that I made, or the nominations that were made by the Dáil, he ought to specify the particular ones he refers to. He should not specify both at the same time. In this matter I am not putting forward any views as regards the persons to be nominated other than in accordance with what is contained in the motion and in the amendment—"a person who has done honour to the nation by reason of useful public service...." Other than that, I am not doing anything at all as regards the persons that I want nominated or that the Party I belong to wants nominated.

Mr. DAVIN

I am sorry if I misunderstood the President; but I quoted the words he used. I took a note of them when he was speaking to the Ceann Comhairle. From what he said it appeared to me that the procedure he was anxious to follow, and the representation he was anxious to secure on the nominated list, would be somewhat similar to that recognised in regard to the setting up of the Seanad.

The PRESIDENT

Perhaps the Deputy would quote the words he states I used?

Mr. DAVIN

I took them down at the time. The President said he was anxious that nothing would be left undone to see that the letter and the spirit of the Constitution would be carried out in reference to the setting up of the Seanad.

The PRESIDENT

If the Deputy charges me with endeavouring to have the Constitution carried into effect, I plead guilty immediately.

Mr. DAVIN

The point I want to make is that, first of all, it is impossible, for reasons over which we have no control, to give representation to every interest in the country. Does the President admit or deny that?

The PRESIDENT

Yes.

Mr. DAVIN

The President is both admitting and denying it. There are 19 members going out of the Seanad. It appears to me, having listened to a good many Deputies give expression to their views, that there is a very grave danger that the Senators going out, who represent the national interest more than any other interest, are likely to come back in less numbers as a result of the election. It is impossible for us to give effect to the wording of the amendment in so far as are concerned the largest interests in the country, outside of the people on behalf of whom the President and his Party speak. Those other people cannot get representation in the Seanad. That is due possibly to their own fault, but the fact that they cannot get representation proves how impossible it is to give effect to the amendment.

The PRESIDENT

I think the Deputy is quite wrong. If the people to whom he has referred want representation in the Seanad, the door is open for them to come and get it.

Mr. DAVIN

I want to assure the President that I do not speak on their behalf. I am really pointing out how impossible it is to give effect to the amendment.

Mr. COLOHAN

I am opposed to this amendment proposed by Deputy Duggan. I think the Dáil has not taken into consideration the effect of Rule 6, if this amendment is added to Rule 2: "The returning officer may reject as invalid any nomination paper which does not comply with the requirements of this resolution":—if this amendment is added it will become part of the resolution—"... or which purports to nominate a person who is not qualified to be elected as a Senator." Suppose two persons are nominated to represent some aspect of the public life of the country, and it lies with the returning officer to reject one of these nominations, what would the result be? There might be a candidate nominated by the Government Party to represent education, and one might be nominated from these benches to represent education. The returning officer would then exercise his own judgment in rejecting candidates. I do not think that would be fair. I have the greatest confidence in the good sense and judgment of our present Ceann Comhairle, but if you pass this now it will be taken as a precedent for all future elections to the Seanad. I look upon it therefore as an attempt to filch away the rights of members, and I oppose it.

Captain REDMOND

I do not think there is anything whatever about having only one representative of a certain interest. I do not see anything that would show there could not be several representatives of the same interest. There is nothing in the Rules.

Mr. COLOHAN

If that is so, you will, perhaps, exclude other interests.

Captain REDMOND

I think, with all due respect, that the real meaning of this resolution is misunderstood. It is in no way a mandatory one. In regard to Deputy Cooper's statement about it appearing in the Preamble, what the Preamble does is that it recites the provisions of Article 33 of the Constitution. It is by the resolution that we decide that we are going to adopt and to follow the provisions of the Constitution. Therefore I think it is not at all so unnecessary to have this amendment in the resolution as well as the setting out of the provision of the Constitution in the Preamble. One is a Preamble saying what the Constitution is, and the other is a resolution saying we intend to follow the Constitution.

Mr. JOHNSON

I had an idea it was one of the anxious of the law—Deputy Redmond will confirm it—that it is no use making a law or rule unless it is enforceable.

Captain REDMOND

I do not at all agree with that.

Mr. JOHNSON

I may be wrong, of course.

Captain REDMOND

I do not like to be interrupting the Deputy.

Mr. JOHNSON

Well, I will leave the question of the law outside altogether. The ordinary common or garden layman, in making rules for the conduct of any business, is only going to make a rule which can be given effect to; otherwise it is useless.

Captain REDMOND

I beg to interrupt the Deputy. When rules are made the question arises as to whether those rules may be given effect to or shall be given effect to. It is the old story again of may and shall.

Mr. JOHNSON

This is not the old story; it is quite a new story. Of course many a debating society or football club have done that sort of thing. Very often we get proposals from amateur resolution-farmers including arguments in the resolutions as well as aspirations. This particular amendment is an amendment to a series of rules, and it is not enforceable. But it may well impose an obligation on the returning officer to decide whether regard has been had to those interests and institutions in making nominations. To take an extravagant illustration: a certain person is nominated to represent the fried fish shop interests of the country, an important interest. Deputy Hewat might object, on the grounds that some other interests ought to have been represented, although it may have been alleged in the nomination form that this person was entitled to represent that interest. But if you impose an obligation on the returning officer to decide whether due regard has been had in making the nomination—as I say it is a duty you may impose on the Ceann Comhairle—it is unfair to him and quite impossible of fulfilment. Again, I think Deputy Colohan's point is valuable to this extent, that we are setting forth a set of rules now which very likely will be the basis upon which future elections to the Seanad will be made, and if you put in a rule of this kind which is of no effect and no value whatever, unless the returning officer thinks it his duty to make a decision upon the question which would be raised, and I think he would not, and it ought not to be inserted, because it would be taken as restricting the liberties of Deputies in making nominations. There are two qualifications required, and this deals with one. Article 30 sets out that "citizens shall be proposed on the ground that they have done honour to the nation by reason of useful public service, or that because of special qualifications or attainments they represent important aspects of the nation's life." But then Article 33, which this purports to fulfil, directs that "a method of proposal and selection shall be decided with special reference to the necessity for arranging for the representation of important interests." This is not dealing with the method at all. This is not providing for the method. This is merely expressing the pious hope that Deputies will have due regard to the Constitution. If that is all that is intended, I want to urge that the whole clause be altered and simplified, and I do propose to raise this matter in the form of amendment. I just mention it now that we should leave all out after "who"—that is "the person who"—and insert "who fulfils the requirements of Articles 30 and 33 of the Constitution." That is asking nominators, seconders, and assentors to subscribe to the statement that the person nominated does, in their opinion, fulfil the requirements of the Constitution. If we insert that, or some such phrase, we are fulfilling everything that can be claimed. We are not leaving any possible loophole. We are doing something practicable, and we are not running the risk that some of the rights of Deputies under the Constitution can, either at this time, or at some future time, be restricted. However, the form of the amendment is not before us, and I would strongly urge that this particular amendment should not be inserted, because of the danger which will be, perhaps, in the way of restricting the rights of Deputies in future elections, if not in this one.

Mr. GOREY

I want to be quite clear on this question. Listening to Deputy Johnson and some other Deputies, one is given to understand that in their opinion, at least, the returning officer is made a judge of whether the terms of the Constitution are, or are not, being carried out, and that the returning officer is made a judge of whether the terms of this amendment are being carried out. I want to know is there any discretion given to the returning officer in this connection, "in making such nominations regard should be had to." Are not the Deputies to judge whether regard has been had? I always took, and I take it now, unless the contrary is proved, that it was for the Deputies to judge. The Dáil will put up a particular panel, and the Seanad will put up a panel, and once that is done, in my opinion, the returning officer has no voice whatsoever of whether due regard has, or has not, been had. It may be that I am wrong. If I am wrong I would like to be contradicted. If I am right, that the returning officer is not made the judge, then the objection to this amendment goes by the board. I want to know is the returning officer the judge.

Mr. COLOHAN

When this paragraph is added to Rule No. 2 it becomes part of Rule No. 2, and under Rule 6 the returning officer may reject any nomination paper which does not comply with requirements of this proposed resolution. Therefore he has power to reject nominations. If he thinks that perhaps any interest is represented in an exceptional manner he may cut out one or two nominations.

Mr. GOREY

We want to hear that authoritatively.

Mr. COLOHAN

He has power, according to No. 6, to reject any nomination paper.

The PRESIDENT

I think Rule No. 6 brings in rather four names that must appear on a nomination paper rather than the individual person nominated. I should hesitate to think that the returning officer—the Ceann Comhairle, or in his absence the Leas-Cheann Comhairle—would allow his judgment to operate in connection with the nomination of any candidate. I fail certainly to see how the position is improved by the amendment proposed by Deputy Johnson, which gives effect to the two Articles of the Constitution, the terms of which I set out, and the body of which he brings in. If those two Articles of the Constitution mentioned by Deputy Johnson are included in No. 2, certainly the paragraph as it stands is not weakened. It is a matter of taste as to how it should be expressed. We go into particulars and bring it to the notice of members that they are to have in their minds the terms of the Constitution, but as I say the discretion to the returning officer is no stronger in the amendment proposed by Deputy Duggan than it is in the amendment proposed by Deputy Johnson.

Mr. JOHNSON

I think the President has not yet grasped the point of the objection. Article 30 lays it down that the Seanad should be composed of citizens who have by reason of useful public service done honour to the nation, or because of their special qualifications or they represent important aspects of the nation's life. Two categories are set out under Article 30. Both these are set out in the original form of the nomination as requiring to be subscribed to by the assenters. So far so good. But then we have the new proposal which is quoted from Article 33, not Article 30. The provision of Article 33 says: "The method of proposal and selection for nomination shall be decided by the Dáil and Seanad respectively with special reference to the necessity for arranging for the representation of important interests." Under that you may have had to devise ways and means of making arrangements for the representation of special interests. But it does not impose any obligation upon the nominator that he shall, in making the nomination, have regard to the representation of important interests. He may only have regard to the fact that the nominee has done honour to the nation by reason of useful public service. You are now restricting the right of the nominator.

The PRESIDENT

You are extending it.

Mr. JOHNSON

I think, on the contrary, you are insisting that he shall have regard for arranging for the representation of important interests and institutions. But I feel that the nominator does not know what is in the mind of all the other Deputies. Must each of us go and canvass to find out what the other Deputies are going to do in the matter of nomination, or is every Deputy supposed to take into account all the various interests and institutions and have regard to all these interests and institutions in making the nomination? Must we nominate one for every interest? We should have a very much longer list to be submitted by the members of the Dáil than even that contemplated in the general election. In the first instance, I say you are imposing in this an obligation upon Deputies, or rather a restriction upon Deputies; you are telling them you must have regard to these important interests. The Constitution says that you must have regard to useful public service. If it is alleged that this is intended to fulfil the requirements of Article 33, I say that it does not do that, because it does not make any provision for the method of proposal and selection.

Mr. GOREY

I read this amendment quite differently from the way Deputy Johnson reads it. Rule No. 2 provides that a candidate shall be nominated by one Deputy and seconded by another Deputy, and that the nomination shall include a statement subscribed by two other such Deputies, that the candidate whose name appears on the nomination paper is a person who has done honour to the nation. When they have signed the nomination paper that matter is disposed of. It is not a question for the returning officer. He has no discretion in the matter.

Mr. T.J. O'CONNELL

Why the amendment then?

Mr. GOREY

If there is any doubt about it, let us have the Attorney-General here or somebody who is an authority on Constitutional law.

Mr. JOHNSON

Does the Deputy move that we adjourn until we have the Attorney-General here?

Mr. GOREY

If there is any doubt in the minds of Deputies, it would be well to have him here. There is no doubt in my mind at all. Perhaps I am not a judge of law. I am only taking a layman's view of plain English.

Mr. T.J. O'CONNELL

Why the amendment?

Mr. GOREY

The amendment, to my mind, is an indication or pointer to the nominator and seconder and assentors that due regard has been had or should be had to the matters referred to.

Mr. DAVIN

"Shall" or "should"?

Mr. GOREY

The Deputy knows the difference between "shall" and "should." I think there is a vast difference between the meaning of the two words. I say that the discretion of the returning officer does not arise, even with the addition of this amendment.

General MULCAHY

We are considering a set of rules, and rules adopted by this House ought to be such that anybody could say "This rule has not been attended to" or "This rule has been attended to." The language of the amendment is such that it does not bring it within the phraseology of rules. If an amendment such as this is to go into paragraph 2, I submit it ought to read something like this: "and shall include a statement subscribed by two other such Deputies, that the candidate whose name appears on a nomination paper is a person who has done honour to the nation by reason of useful public service, and that in supporting his candidature we have given due consideration to the necessity for providing for the representation of important interests." The amendment, as it stands, is not in a form which we ought to adopt as portion of our rules.

Mr. A. BYRNE

If, when the nominations are published, it is found that due regard has not been had to the interests which the amendment is supposed to cover, who is to be the judge and what will happen the nominations?

Mr. O'HIGGINS

Whom does the Deputy suggest that will be "found" by?

Mr. A. BYRNE

That is what I want to find out. Who is to judge?

The PRESIDENT

You would want two findings there.

Mr. A. BYRNE

That is the matter we want to make clear. Who will be the judge and who will disqualify the nominations when they have not had regard to important interests?

The PRESIDENT

Who is to judge of the latter?

Mr. A. BYRNE

I do not know, but I would like to know.

Mr. GOREY

I am afraid that Friday afternoon has been wasted on a legal argument by non-legal men.

AN CEANN COMHAIRLE

Supposing this were not an amendment and read, "In making nominations regard should be had to the necessity for arranging for the representation of important interests and institutions in the country, in accordance with the provisions in the Constitution," would that be a rule?

The PRESIDENT

I suppose it would be a rule, if adopted as such.

AN CEANN COMHAIRLE

What would the Returning Officer do?

The PRESIDENT

The Returning Officer, so far as I can judge from those rules, has no function once two Deputies have respectively nominated and seconded and two other Deputies have assented. His function is to receive the nomination and see that those four names are subscribed.

AN CEANN COMHAIRLE

His function is to see that the nomination paper complies with the requirements of this resolution?

The PRESIDENT

Yes.

Mr. JOHNSON

That should be put in the Preamble.

Captain REDMOND

Rule 6 deals with the construction of the nomination paper.

Mr. A. BYRNE

I do not think my question has been answered by anybody.

Mr. HEWAT

It seems to me we have got into a very curious argument on lines which have complicated the whole question. My view, so far as I can form a view, is that the Constitution aimed at providing for a representative assembly in the Seanad. As far as the restrictions are concerned, where they deal with interests, I think it would be very hard for anybody to define what particular interests were or should be represented in the Seanad. When members are duly elected to the Seanad, I suppose they cease to represent particular interests and rather represent the country as a whole.

The view I take is that the rules are for the guidance of the Deputies who are nominating candidates for the Seanad, and that they have no legal force whatever, except in so far as they afford guidance to Deputies. Having before them the guidance afforded by the rules, if four Deputies sign a nomination paper, I do not see how you are going to say after that, that any particular interest should be represented in the Seanad. Deputy Johnson referred to the seller of fried fish. The seller of fried fish, supposing he was supported by four Deputies, would be duly qualified as a candidate for the Seanad. Whether he would be a representative of any particular interest or not is a question that nobody could really decide.

Mr. JOHNSON

Would he represent an important interest? This amendment has reference to important interests. Who is to decide the question? Is it the Ceann-Comhairle?

Mr. HEWAT

I do not think that could possibly be decided at all. I venture to say that you cannot go further when the four signatories to that document consider that the candidate represents an important interest. The important interest might be disputable. Probably it would be disputable in every case. If you carried the matter further than that, you would be getting into an impasse that you could not be extricated from by any body, whether of lawyers or laymen.

The PRESIDENT

Deputy Johnson is, I think, taking a wrong view of this amendment. The amendment is by no means a restriction of or limitation on the rights of Deputies. It is an extension. Rule 7 provides that, as soon as practicable after receiving a valid nomination paper, the returning officer shall send notice of such nomination to each Deputy. One of the Articles of the Constitution provides that those who shall be members of the Seanad shall be persons who have done honour to the nation's life. There might be an important interest in the country—I can imagine two or three such interests —that would not be represented in the Seanad. Take, for instance, the brewing interest. Those associated with that interest might not have done honour to the nation, in the general acceptation of the term, but they might have done useful service. Take the people engaged in the transport service. There might not be a director of railway interests in the Seanad, and it is conceivable that the framers of the Constitution had in mind some such persons as those. It is not likely, but it is possible, that agricultural interests might not be represented in the Seanad. There are various orders in that particular interest. There is the farmer with 300 or 400 acres; there is the farmer with 100 acres; the farmer with 50 acres, and the farmer with 25 acres. It might be reasonably contended by a member of one particular section that that particular section was not represented in the Seanad. The information conveyed by reason of Rule 7 would enable members of the Dáil to see that particular interests were not represented in the nomination list, and it would afford them an opportunity before the closing of the nomination lists to secure nomination for those interests. It certainly is not a limitation; it is rather an extension.

Amendment put.

The Committee divided: Tá, 31; Níl, 11.

Tá

• Earnán de Blaghd.
• Thomas Bolger.
• Séamus Breathnach.
• Seoirse de Bhulbh.
• John Conlan.
• Louis J. D'Alton.
• Desmond Fitzgerald.
• John Good.
• John Hennigan.
• William Hewat.
• Connor Hogan.
• Liam Mac Cosgair.
• Pádraig Mac Fadáin.
• Risteárd Mac Liam.
• Liam Mac Soighaird.
• Peadar O hAodha.
• Mícheál O hAonghusa.
• Seán O Bruadair.
• Séamus O Dóláin.
• Peadar O Dubhghaill.
• Donnchadh O Guaire.
• Aindriú O Láimhín.
• Fionán O Loingsigh.
• Pádraic O Máille.
• Pádraig O hOgáin (Luimneach).
• Seán O Raghallaigh.
• Seán O Súilleabháin.
• Mícheál O Tighearnaigh.
• Caoimhghín O hUigín.
• William A. Redmond.
• Nicholas Wall.

Níl

• Seán Buitléir.
• John J. Cole.
• Bryan R. Cooper.
• David Hall.
• Tomás Mac Eoin.
• Ailfrid O Broin.
• Tomás O Conaill.
• Aodh O Cúlacháin.
• Liam O Daimhín.
• Eamon O Dubhghaill.
• Risteárd O Maolchatha.

Tellers.—Tá: Séamus O Dóláin and Seán O Súilleabhain. Níl: Bryan R. Cooper and Tomás O Conaill.

Amendment declared carried.

Rule 2, as amended, agreed to.

AN LEAS-CHEANN COMHAIRLE

took the Chair.

RULE 5.

Major COOPER

I move the amendment standing in my name. There is a slight misprint in it as it appears on the Order Paper. It reads: "In page 2, Rule 5, to insert after the word "seconder" the words "or other assenting Deputy." That should be "or either assenting Deputy." This is simply a matter of convenience, to make it possible for the nomination papers to be handed in by either of the assentors as well as the proposer or seconder, and it is simply because the time is rather short for getting these nomination papers filled up that I have put down the amendment. It might convenience Deputies living in the country who desire to nominate or second some local individual, some supporter of their own, possibly, if they were able to get a Dublin Deputy to assent and to hand in the nomination paper. If it is proposed to allow the papers to be sent by post, the amendment is unnecessary, but if they have to be handed in in person the time is not very long for getting the consent of the individual and the four signatories. The Dáil will not be sitting on the day that the nomination takes place, and therefore I think it would be to the convenience if you could get one of the parties to hand it in.

The PRESIDENT

The amendment is accepted.

Amendment, as amended, put and agreed to.

Rule 5, as amended, put and agreed to.

RULE 6.

Mr. JOHNSON

On Rule 6, I desire to raise a question regarding the position of the returning officer, who, we have now decided, shall be the Ceann Comhairle, or in his absence, the Leas-Cheann Comhairle, if any question arises as to the disability or incapacity of a candidate by the Constitution or by law. Is the returning officer in a position to give a decision as to incapacity by the Constitution, and is he to be provided with a legal adviser, who shall not be the Attorney-General? I suggest that in such an instance the Attorney-General, who is the legal adviser to the State, is not the right person to act as legal adviser to the returning officer, and that it would be necessary, in any case, that he should be provided with a legal adviser, if this rule is passed in its present form, to help him to decide whether a person is qualified by law or not. We are authorised by the Constitution to nominate persons for submission to the country, and the rules, of course, are to be decided by the Dáil and Seanad respectively. I am a little bit doubtful as to the wisdom of passing this rule in its present form, throwing upon the returning officer the responsibility for disqualifying and the power to disqualify a person who, he alleges, is not qualified or is disqualified by the Constitution. I think I can see difficulties arising which might have to be taken beyond the returning officer, and I wonder, if we pass these rules, if we are depriving the individual of the right of access to the courts in respect of an interpretation of the Constitution. This is a matter that did not occur to me when I first read the resolution, but it occurs to me now as one that might cause considerable difficulty.

The PRESIDENT

It is obviously the duty of some person to decide if the nomination is invalid. The electoral law contains certain provisions regarding the disqualification of a person from being elected or sitting as a member of the Seanad:—

(a) a person who is undergoing a sentence of imprisonment with hard labour for any period exceeding six months, or of penal servitude for any term imposed by a court of competent jurisdiction in Saorstát Eireann;

(b) an imbecile and any person of unsound mind;

(c) an undischarged bankrupt under an adjudication by a court of competent jurisdiction in Saorstát Eireann;

(d) a person who is by the law for the time being in force in Saorstát Eireann in relation to corrupt practices and other offences at elections incapacitated from being a member of the Seanad by reason of his having been found guilty, by a court of competent jurisdiction in Saorstát Eireann, of some such practice or offence.

The Constitution lays down that a candidate must be thirty-five years of age or upwards. Then there is a certain provision in regard to disqualification. There is also a disqualification in the case of

a member of the defence force of Saorstát Eireann on full pay; a member of any police force in Saorstát Eireann on full pay, and a person either temporarily or permanently in the Civil Service of Saorstát Eireann, unless he is by the terms of his employment specially permitted to be a member of Seanad Eireann.

I think that these are matters on which no question of law would arise; they are questions of fact.

Mr. JOHNSON

But surely questions of law might arise as well as questions of fact? Take one instance, full age. Between the day of nomination and the day of election there are proposed to be three days. If A.B. is nominated, and C.D. raises an objection on the ground of age, where is the proof of age to come from, and will you only allow three days for the proof to be adduced? The proof of age might be difficult of access, and in the absence of proof of age you are throwing upon the returning officer the choice of saying: "I will let you go to the country; you can be disqualified afterwards if you are elected," or "I disqualify you because you have not proved age." Or take another case: Objection is raised to a nominee because he is alleged to be a member of the defence force on full pay. You may say that that is easily ascertained. It may be, but you are only allowing three days within the period of nomination and final selection to elapse, you are throwing on the returning officer responsibility for saying yea or nay in respect of the validity, and whose decision is final for all parties.

Let me put a more likely case—the question of citizenship. I assume that any citizen who is qualified under Article 3 of the Constitution—"domiciled in the area of the jurisdiction at the time of the coming into operation of the Constitution, and who was born in Ireland, or either of whose parents were born in Ireland and had been ordinarily resident for a certain period"—will be eligible for submission to the electors. A person may not be now living within the present area of the jurisdiction, but may have been at the time of the coming into operation of the Constitution and is therefore a citizen. Possibly a question might be put to the returning officer as to the eligibility of that person purporting to be a citizen, claiming to be a citizen, who I believe is entitled to be called a citizen and to have the rights and privileges of a citizen within the area of the jurisdiction. It might conceivably be a matter of dispute, and to impose upon the returning officer an obligation to say yea or nay on that very important legal and constitutional question, which we are saying shall be final for all purposes, raises a very important doubt and question in one's mind. It is the kind of question that is likely to have to be decided eventually by the Supreme Court, and I think we ought not to pass a rule here which would say that the returning officer's decision in such a matter shall be final for all purposes.

The PRESIDENT

In the case of the Dáil election I think the time for nomination and withdrawal was about two hours. Objection would have to be made within the two hours. Here there are three days.

Mr. JOHNSON

There are possible appeals to the court afterwards. We are now saying there shall not be appeal to the court, if we can prevent it. I am not sure we can. But we should not record it that the decision of the returning officer in such a case shall be final for all purposes.

The PRESIDENT

As far as I have been able to examine the matter as to the Seanad elections, it is laid down very particularly what are the regulations. The question of age is one. If a person objects that the candidate is not 35 years of age, I think that proof ought to be afforded in that case by the objector that the person is not 35 years of age. We cannot have a roving commission to find out whether every candidate has a baptismal certificate showing he is 35 years. If there be an objection lodged in time, verified by the necessary instrument, then the returning officer has got a very easy decision to make. It is the same with regard to the other disqualifications. I think he is entitled to be afforded the necessary documentary evidence regarding any of these matters. If he has that evidence, then it is a question of fact, and he will not have much difficulty in making up his mind. A longer time than three days would probably open up channels for objections.

Mr. JOHNSON

I am not asking for longer time. I realise that the returning officer must be granted the right to say whether or not a person is qualified according to the regulations, but we are specifically saying here that if he rejects as invalid any nomination paper which does not comply with the requirements of this resolution, or which purports to nominate a person who is not qualified to be elected as a Senator, or is placed under a disability or incapacity by the Constitution or by law, the decision of the returning officer shall be final for all purposes. That would deprive a Deputy of the right to nominate a person whom he believes to be a citizen, and the citizen of the right to go to the electorate because a returning officer is advised, or comes to a decision without advice, that the nominee is outside the Constitution, is outside citizenship, Are we, by passing this, depriving ourselves of the right to go to the courts to declare whether a resident of the city of Belfast, who was undoubtedly a citizen at the coming into operation of the Constitution, is no longer a citizen? I ask the President to be very careful in this matter, because it might involve a delicate question. Let us not, at any rate, commit ourselves to the statement that the decision of the returning officer in such a matter is final for all purposes.

The PRESIDENT

I think every precaution is taken here to ensure that the election will be carried out properly. From our experience we have no cause of complaint with regard to the way the business is being done, but there ought to be some finality about it. The electoral law specifies that, unless there is a very grave case made against an election which has taken place, the election should stand. In this particular instance, any interference by the court afterwards in connection with an imperfection might involve us in a very considerable amount of money. We must have something final, and there must be some person in a position to say at a given moment: "That is final and conclusive." It is better to have the thing definite, having taken the usual precautions to see that the discretion exercised by the returning officer will be in accordance with the dictates of common sense.

Mr. JOHNSON

I have not raised this point merely as a chance thought. There is every likelihood that residents from Northern Ireland will be nominated for submission to the electorate as candidates for the Seanad, and the contention is made, on very good authority, that these persons are eligible for membership of the Seanad, because they were citizens of the Saorstát at the time of the coming into operation of the Constitution. It may be, and I think will be, considered of so great importance that all the rights of Deputies under the Constitution will be sought for, and the highest authority, the highest court, may be called in to decide. I make that statement because I do not want the Dáil to bind itself in a matter of this kind, and to throw the obligation upon the returning officer to decide the matter, without due regard to all the possible implications.

The PRESIDENT

Under the Electoral Act it is laid down that a returning officer shall decide as to the validity of every objection made to a nomination paper, and his decision, if disallowing the objection, shall be final, and, if allowing same, shall be subject to reversal on petition.

Rule 6 put and declared carried.

Rule 7 agreed to.

RULE 8.

The PRESIDENT

I take this opportunity of mentioning that, in the event of a person nominated dying before the panel is completed, it would be advisable that either the proposer, seconder, or an assentor should give the earliest possible intimation to the returning officer. It might happen that the appearance in the Press of the report in connection with the matter might be later than the receipt of such an intimation.

Rule put and agreed to.

Remaining Rules and Schedule agreed to.

Question—"That the proposed Resolution, as amended, be the Resolution of the Committee"—put and agreed to.

Resolution, as amended, ordered to be reported.