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Dáil Éireann debate -
Wednesday, 24 Jun 1925

Vol. 12 No. 13

LOCAL AUTHORITIES (COMBINED PURCHASING) BILL, 1925. - ADAPTATION OF CHARTERS BILL, 1925—SECOND STAGE.

It was provided by Article 73 of the Constitution that, subject to the Constitution and subject to the extent to which they were not affected thereby, the laws that were in force at the date on which the Constitution came into operation should be continued as of full force and effect, until they were repealed or amended by a specific enactment of the Oireachtas. When that was done, a body of laws was taken over in globo and we had to proceed, as we subsequently did, by the Adaptation of Enactments Act, 1922, to adapt these laws to the existing circumstances The Adaptation of Enactments Act was, I think, the first statute passed by the Oireachtas after the Constitution itself. By that Act we made certain specific adaptations of the British statutes which were taken over under Article 73, and it was provided that the Executive Council might, from time to time, by order make further general or specific adaptations or modifications of those statutes in order to enable them to have full force and effect in the Saorstát. The laws which were continued in force by Article 73 of the Constitution, included a great number of charters which had, from time to time, been granted in this country prior to the Treaty. Those charters were not adapted by the Adaptation of Enactments Act, 1922, nor did that Act confer on the Executive Council any power to adapt these charters by order. There are, as Deputies are aware, a considerable number of bodies such as hospitals, which are governed by charters. Some of these charters referred to Departments or functionaries of the late British Government in Ireland, and also to the holders of certain offices such as, for instance, the Lord Chancellorship, the Lord Chief Justiceship, and other such offices which have ceased to exist.

It has become apparent now to the Executive Council that certain adaptations must be made in order that these charters may work in the present circumstances of the country. Several applications have been made to the Executive Council with a view to having certain of those charters adapted. It has not been considered desirable to make a general adaptation of charters such as was made in the case of statutes by the Adaptation of Enactments Act. The present Bill by Section 1 confers on the Executive Council power to make all such adaptations of, or modifications in, any of these charters as are in the opinion of the Executive Council necessary to enable the charters to have full force and effect in Saorstát Eireann. The position, if and when this Bill is passed into law, will be that persons interested in any particular charter can apply to the Executive Council to have that charter adapted. This can be done without expense by the order of the Executive Council. Section 7 of the Act to which I have referred, the Adaptation of Enactments Act, deals with certain statutory boards of commissioners and other statutory bodies and it provides that the Executive Council may, by order, establish a board of commissioners to exercise in Saorstát Eireann functions previously exercised by any such statutory board of commissioners or other statutory body.

The terms "statutory board of commissioners" and "statutory body" are uncertain and lacking in precision. Some of the bodies which were intended to be comprised in the section are both constituted and governed by statute and no question can arise regarding any such body. There are, however, other bodies which were intended to be comprised in the section, some of which are constituted and governed by charter, and others of which are constituted by charter, and governed partly by statute and partly by charter, and yet others which are constituted by statute, governed partly by statute and partly by charter. The object of Section 2 of the Bill, at present under consideration, is to bring all such bodies within the purview of Section 7 of the Adaptation of Enactments Act. Section 9 of the Ministers and Secretaries Act, 1924, also deals with statutory boards of commissioners and other statutory bodies. Section 3 of this present Bill is intended to amplify and define the expression "statutory boards of commissioners" and "other statutory bodies" which are used in that section, in the same way as Section 2 defines these expressions for the purposes of the Adaptation of Enactments Act. I move that the Bill be read a second time.

In anything I have to say regarding this Bill, I shall confine my remarks to one aspect of it. It is generally admitted that retrospective legislation is bad and should only be resorted to if it can be shown that it is absolutely necessary in the public interest. If by retrospective legislation certain rights are taken away from individuals, then there is no ground whatsoever on which such legislation should be defended. I am not speaking of the general principles at the moment behind this Bill. It may be right and proper that these adaptations should be made, but if the Minister will look at Section 2, sub-section (2), he will see that not only is it proposed that these boards shall henceforth be deemed to be so and so, but to be and always to have been deemed to be such. Now, what would happen supposing that certain rights were conferred or were taken away as a result of the construction of Section 7 of the Adaptation of Enactments Act, 1922? What would happen supposing, as I say, certain rights were conferred by that section as it stands at present and that now this retrospective provision were to come along and simply take these rights away? It could happen that cases would come before the courts for a decision based on this very point, and I might point out that there is at present a case before the courts awaiting judgment based on the construction of Section 7 of the Adaptation of Enactments Act. A very great amount of money has been spent in this case in the defence of certain rights which are supposed to exist. The adoption of this restrictive phrase would simply cut the ground right from under their feet; it would decide the matter at once, and the court would have nothing to say. The greater part of the case turns on the point as to whether a certain body that was governed by charter is or is not a statutory board or body. This distinctly states that it is and always is deemed to have been a statutory board or body, and the matter does not admit of further argument. I suggest that whatever may be the case for making the thing right, as the Minister conceives it to be right from this point forth, that he should not adopt this plan of retrospective enactment, which will undoubtedly be deemed by the people who are fighting this case before the courts to be definitely and distinctly designed in order to cut the ground from under their feet. I think that this is a bad principle to adopt, and I think that the Minister should see that that part of it is not included in the Bill.

I do not know that I will vote against the Second Reading of this Bill, but I think it is right that I should mention, even on the Second Reading, certain defects, as they appear to me, even though it is possible that these defects may be removed in Committee if sufficient time is given to consider them properly. As far as Section 1 goes, it seems to me that it simply gives power to bring into full force in the Free State charters which have been granted. To that I take no exception. But I think that the terms of Section 2, as has been indicated by Deputy O'Connell, are exceedingly wide, possibly even wider than they were meant to be. It would, I fear, be possible, for instance, under the sub-section to remove rights which had been held by charitable bodies, by certain boards acting as boards of religious denominations and educational institutions. It seems to me that it would be possible by a simple Act of the Executive Council to remove from such bodies rights which they have hitherto held and which I think in accordance with the spirit of the Treaty and the Constitution, Article 8 of the Constitution particularly, that they should continue to hold. I do not take the view that there is any such intention on the part of the Executive Council at all; equally strongly I take the view that there is no necessity for giving such powers to the Executive Council. We ought in Committee certainly to remove from Section 2 such bodies as I have indicated, bodies acting by charter in connection with religious denominations, charities and educational institutions, and unless I am satisfied that no such changes will be made in the Bill I hope to put forward amendments to do so on the Committee Stage.

There are two definite types of institutions that I have before my mind, the late National Board of Education and the Universities The National Board was declared in the course of a prolonged litigation by an obiter dictum of one of the Judges to be not merely a chartered corporation but a great State Department of Education. As a State Department of Education it was quite easy to do away with it, but as a chartered corporation it was not, and in our dealings in this Parliament with Commissions, the National Board, as the Commission of Primary Education, survives. One operation of the sweeping powers given in the present Bill would make it quite easy to obliterate that as a corporate entity and affect whatever rights are still in question to be decided.

But as regards the universities the case is far more serious. I will speak for the university which I have the honour to represent. The National University is a statutory body; it was set up by the Irish Universities Act, and it is governed partly by that statute and partly by charter. If it is to be deemed never to have had that status it is put in a very serious position; in fact, we have no rights whatsoever as an educational body; it would be quite easy to deprive us of them. Although I am quite sure that the Executive Council of the day or of a future date would not be willing to exercise the power, it would be quite easy to make it no longer able to sue and to be sued. Furthermore, the universities might by some reactionary step in a moment of thoughtlessness be put under a Minister of Education and all the autonomy which is so essential to the discharge of their work would disappear. I prefer to take the view that those who drafted the present measure had in contemplation some other bodies, and by inadvertence used a formula which would take into its scope the universities. I find it difficult to believe that such a step was contemplated. It would simply mean to all intents and purposes the destruction of the liberties of the universities, and that means a revolution in the very worst sense. At the moment when all our energies should be bent upon constructing a healthy organism of education in the country, to do what would have the effect of mutilating the higher education, as represented in the universities, would be fatal. The university must be an autonomous body. That argument was accepted by the Dáil.

Although the universities were, I believe, included in the Ministers and Secretaries Bill, they were, at a later stage, left out and, as the law stands, though a Minister answers for the universities in the House, they retain their autonomy. That is a point upon which I think the universities must always give battle and fight in the last ditch. The university is no longer able to discharge its duty to the nation once its autonomy is taken from it. To use a parallel, it has always been held with regard to the great historical discussion on the liberty of the Press that even though there was no interference with the publication of opinions, yet if there were a law on the Statute Book that enabled an executive officer to seize a printing press at his own discretion, though in point of fact, the Press was at the moment free, yet in essence it was unfree. On the same analogy I suggest to the Minister in charge of this Bill that if the Executive Council have the power to deal in the way proposed, and if this House gives it that power, with institutions governed partly by charter and partly by statute, then the universities are not free. Even though I am sure no Minister would dream of interfering with them, the possibility would be there, the knowledge that a public agitation could be worked up to invoke that power would be there, and universities would no longer be what they ought to be.

I ask the Minister not to pursue this Bill at this stage in the session. It has not been represented that it is urgent.

It is not intended to go beyond this stage until the autumn session.

I am glad to hear that. I want to argue against the Bill. We have generally agreed that legislation by reference is undesirable when it can be avoided, and it is generally agreed that undue legislation by Order in Council is not desirable if it can be avoided. This Bill is a combination of both to the X degree. The Adaptation of Enactments Act is put forward as a parallel. That dealt with enactments, the existence of which was public. We knew them. We could recognise the references, and this Act in general dealt with the interpretation of terms, officials, persons, officers, offices, and applied those terms and names and officials to the new situation here, but in the Bill before us we are asked to give the Executive Council general powers over things that we do not know the existence of, over institutions and bodies of people who may be governed partly by charter and partly by statute, and to give the Executive Council authority to adapt them to the circumstances of the Saorstát. By that means we may be making very important changes in powers and authorities without our knowing what is involved because we have not access to the charters and do not know to what they refer. It seems to me, if we are to legislate with regard to charters, it ought to be purely with regard to formal matters such as titles, officials and authorities, that are given powers within these charters and adapt them to the formal circumstances of the new situation. That is quite acceptable, but we ought not to go beyond that unless we have a schedule of the charters in mind, so that we will understand exactly what we are dealing with, and then possibly have access to the contents of those charters. This is certainly legislating in the dark and giving powers to an Executive to do things which we may regret in the future. It is practically giving legislative power to an Executive, outside the Oireachtas.

It may be argued that the giving of a charter has always been an act of the sovereign and that you are not altering that position. We are not all satisfied that permanent and eternal wisdom is contained in those charters, and if there is to be any alteration even in adaptation, apart from nomenclature, we ought to know what we are doing, and the Executive Council ought not to be given powers to act in such alteration or adaptation without the consent of the Oireachtas, because it is in fact legislation by charter, or, as referred to here, partly by charter and partly by statute. I submit the Bill, even in its present stage, ought not to be proceeded with because its scope is entirely too wide and gives too much authority to the Executive Council. If there has to be adaptation it should be adaptation in respect of terms and titles and not in respect of the actual contents of the charter or whatever it may be.

The Executive Council did not consider lightly the advisability of introducing this measure. It was after repeated representations had been made to them with regard to the infirmity of the law as it stands and the fact that the Adaptation of Enactments Act and the Articles in the Constitution continuing in force all the Acts that were so adapted, were found not to cover certain charters. I do not anticipate that many grave cases will arise in which an attempt will be made to do anything in the nature of legislation as has been suggested by Deputy Johnson. There are minor matters which cannot possibly be attended to by reason of the infirmity I have mentioned, namely, that there is no power to do certain acts. There are instances in which bodies are unable to spend money on alterations and improvements in certain buildings and an order must be made by somebody. The persons who did such things have no existence in the State now, and some corresponding institution must function if those particular charters are not to come under review and have a particular Act passed to deal with each case as it arises. That would be very undesirable and, as I said, it is not intended to go beyond the Second Stage at present. If it were not that time permitted, it would not be even down for the Second Reading. If I had been asked not to have the Second Reading Stage to-day I would have no objection It is down now for Second Reading and nothing that has been done to-day will prevent any necessary action being taken. On the Committee Stage we will be able to give the necessary explanation in connection with certain points that have been raised.

Question put and agreed to.
Committee Stage ordered for 8th November.
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