DAIL IN COMMITTEE. - ADAPTATION OF CHARTERS BILL, 1925—THIRD STAGE.

The Executive Council may from time to time by order make all such adaptations of and modifications in any charter which by virtue of Article 73 of the Constitution has the force of law in Saorstát Eireann as are in the opinion of the Executive Council necessary in order to enable such charter to have full force and effect in Saorstát Eireann.

I move amendment 1:

In line 26 to delete from the word "by" to the word "law," line 27 inclusive, and to substitute the words "is in force in."

This amendment raises a purely legal point, but I think it is a very vital one. In fact it seems to me to strike at the whole efficacy of the Bill. Section I says that this is to enable the Executive Council to make modifications in any charter "which by virtue of Article 73 of the Constitution has the force of law in Saorstát Eireann." Now, if you turn to Article 73 of the Constitution you will see that it deals with laws, but that it does not deal with charters. I understand that the law of charters is quite different to the law about laws, if I may put it so, and to say that a charter has all the force of law seems to me to be not brought in by Article 73 of the Constitution at all. That Article deals with the laws that are in force in the Free State. I would suggest to the Minister in charge of the Bill that it should simply say that it gives the Executive Council power to make modifications in any charter which is in force in the country at present in order to give them full force and effect. I think that would enable him to deal with the charters that are in existence in the country. I suggest that the present section does not give him power to deal with anything, because I believe there are no charters in the country at present which have the authority of law. That requires a charter to be definitely working under the authority of Parliament, and I do not think we have got any such charters in this country at all.

I think Deputy Thrift probably is making the mistake of thinking that the Executive Council wishes to interfere in connection with these charters of its own volition. That is not the case. The Executive Council, in putting down this measure, in presenting it to the Oireachtas and getting it passed into law, does so, as I explained on the Second Reading of the Bill, to facilitate these particular institutions. It does not intend to act and has not acted in connection with these matters unless requested to do so for the benefit of these particular institutions. This amendment does not, to my mind, make the situation anything better. It is by virtue of Article 73 of the Constitution that all laws, common law charters, statutes, etc., are brought within the law, and some reference such as this should be made in this connection. I do not know that we have passed any Act or given any charter since December, 1922, when Article 73 of the Constitution was passed. It appears to me that these charters are in force by virtue of Article 73 of the Constitution, that the amendment would not effect any difference in substance, and that the reference to Article 73 of the Constitution places beyond question the charters which are affected by the section.

It is not for me to argue a legal point as I have no pretentions to being a lawyer. At the same time I do not think the President answered the point I made. The question does not arise here as to whether a chartered body, whether voluntarily or otherwise, comes under the purview of the Act, but the question does arise as to whether a charter can be called a law. I suggest that the legal interpretation is that a charter only has the force of law if it gets the authority of Parliament. I do not know that it is the case that charters are covered by the laws that are mentioned in Article 73 of the Constitution. I raise the point and am quite content in having done that in order that the legal authorities may give it consideration and see whether there is any legal force in the point. To my mind it does not seem that there will be any chartered body in the Free State which would come under the purview of this Act if the wording is left as it is in Section 1. I do not wish to press the amendment to a division, but I would ask the President to submit it at any rate to the consideration of his law advisers.

I do not think it would be a good practice to put an Executive Minister in the position of saying that his law advisers say so and so. It may be taken generally that a Minister will not set himself up in opposition to whatever he is advised, and taking it in that way I can say that I am advised that the Bill as drawn fulfils all requirements, and that it would not be benefited by the amendment which has been put down by the Deputy, but rather might be slightly damaged by it.

I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I move amendment 2:—

To add at end of section a new sub-section as follows:—

"An order made by the Executive Council under this section shall be laid before both Houses of the Oireachtas as soon as may be after it is made and shall not come into force and effect until the expiration of twenty-one days on which the House of the Oireachtas has sat after it has been so laid."

The proposition I put before the House is to add a new sub-section making it clear that any order that is to be made by the Executive Council in fulfilment of this section shall not have effect until it has been placed on the table of the House. I would rather discuss the issues raised to some extent by Deputy Thrift's amendment although the point he made was perhaps too technical for my understanding. I think the section itself is very dangerous in its present phraseology. We are asked to give the Executive Council power to adapt, to modify, any charter so that it may have the force of law and so that the adaptation may have the force of law if, in the opinion of the Executive Council, that modification is necessary to enable the charter to have full force and effect in the Saorstát. On the face of it the intention, I think, was to give the Executive powers to enable charters to have force and effect in Saorstát Eireann which they have not at present, owing to the change in the constitutional position. But it is not that only that we are asked to agree to: we are asked to agree that the Executive Council shall be empowered to make such adaptations as they consider are necessary, and I take it that if that section is passed in its present form there will be no appeal as to whether the opinion of the Executive Council as to the necessity for any particular adaptation was, in fact, required by the needs of the case. To adapt a charter in such a way as to make the charter itself effectual in the Saorstát is one thing; to allow the Ministry to modify such charters in any way they may think desirable—they say necessary, but it is their opinion that it is necessary according to the phrase in the section—is another thing. Then there would be no appeal from the opinion of the Executive as to whether any particular adaptation or modification, which means alteration in the charter, is required. There was recently an adaptation made of certain enactments altering the constitution, for instance, of a certain Nurses' Council. It was altered rather considerably, not merely adapted to suit needs; that is, the technical phraseology was not altered merely to adapt it to the necessities of the Saorstát, but the actual constitution was adapted and what was equivalent to the charter was modified.

I want, if possible, to prevent the Executive from taking powers to alter charters beyond what is absolutely necessary to make these charters effective in the Saorstát, and I think that the section, as it stands, goes much beyond that. The amendment that I have put down, of course, does not ensure what I desire, but I am drawing attention to what I think is the defect in the section itself, and I think that the words "in the opinion of the Executive Council," ought to be deleted, though that is not my amendment. The amendment is a sort of second best, to ensure that if any Order has been made by the Executive Council in respect of a charter that that Order will not be effective until the House has been made aware of it, and has had an opportunity to disagree with it. We are in the great difficulty that we have not any conception of how many charters are in operation, how many institutions are working under charters, and what is contained in those charters. Furthermore, we have no idea as to what is in the mind of the Executive Council as to the adaptations or modifications that they wish to make in these charters, and what we are asked to do is to leave the whole matter entirely in the hands of the Executive Council to modify, which means to alter, any of these charters in any way that they may think it necessary to make them effective in the Saorstát.

I assume that the stress in this section is upon the word "necessary," and I would assume, too, that if we leave out the words "in the opinion of the Executive Council," there might be some appeal to the courts as to whether any modification was necessary to enable a particular charter to have effect in the Saorstát. But while we leave in these words, "in the opinion of the Executive Council," it seems to me that we are leaving all power to the Executive Council in the manner of adapting, modifying, or otherwise altering charters. The amendment, however, seeks to ensure that before any adaptation or modification is made the Order will be laid before both Houses of the Oireachtas, and that the Order shall not come into effect until after 21 days during which the Houses shall have been sitting. I therefore move the amendment.

I think that Deputy Johnson is really unnecessarily uneasy about this Section 1, though I rise to lay stress on something that the President has just said, with particular reference to the point raised by Deputy Johnson. I take it that it is quite clear that the effect of Section 1 is that it only enables the Executive Council to make such modifications as will give the charter full force and effect in the Saorstát.

But what the Executive Council considers to be necessary.

In order that it shall have full force and effect.

But they are the judges.

No, they are not the judges of what is to make a charter of full force and effect; at least I submit so. I take it from what the President said a moment ago that it is not the intention of the Executive Council to make any use of this except a chartered body wants it. I ask him to point out the part of the Bill where that proviso is laid down. We are legislating here, not for what this Executive Council wishes to do, but for what this Executive Council, or some future Executive Council, might be able to do by means of this Bill. That is what Deputy Johnson has laid stress on over and over again. It is not what the intentions of the Executive Council are in this Bill that matters but what is the legal force of the Bill. It does not console those who are anxious, although it is very consoling that the President does not want to touch existing charters unless the holders of these charters want it themselves. But I submit that it is what the Bill would enable some future Executive Council to do that is the real point.

I was one of the people who were very anxious that some change should be made in regard to this matter. A body with which I am connected is run by charter, and we found that there were some changes extremely necessary with regard to certain examinations. When we had achieved the changes that we considered necessary we found that our charter required that these changes should receive the sanction of the Lord Lieutenant. The Lord Lieutenant had gone, and we sent them to the Governor-General. The Governor-General said that he had no power to give his sanction to the changes. He said he was quite sure that he could not. He referred us to the Executive Council and he said that they had power to do what the Lord Lieutenant could have done. The Executive Council found that they had no power either, and, therefore, we pressed upon the Executive Council the necessity for making some change. So far as I was concerned I was quite satisfied that the Government had met us in the endeavour to make the changes necessary in the charter where these changes were recommended by the body concerned. Deputy Johnson has, of course, raised a wider question, that if the Government took power to themselves to alter charters, which alterations were not required by the bodies holding the charters, it might become a rather serious matter. But I was perfectly satisfied, as far as I was concerned, that the Executive Council had nothing more in their minds than simply making the charter available in the Saorstát. That does not quite meet what Deputy Thrift suggests, that the Government are taking powers to do a certain thing which seems to be only necessary. But, on the other hand, as he says, what would the legal aspect of the case be? I am quite satisfied if the President says that he got legal advice on the matter that things eventually will be all right.

It seems to me that there is a great deal of unnecessary nervousness and apprehension about this measure. The three speeches I have listened to are indications, not exactly of a want of confidence in the Executive Council, or in future Executive Councils, as of nervousness in giving extraordinary powers to any Executive Council. What are we concerned with? This particular measure seeks to perfect something that has already been passed into law by the Oireachtas. In 1922 one of the earliest Acts—I think it was the first Act after the Constitution—was a measure known as the Adaptation of Enactments Act. I do not know whether Deputies have had time to go over the phraseology in that particular measure or not, but there are two sections to which I wish to draw attention, Section 12 and Section 19. Section 12, sub-section (1) reads:

The Executive Council of Saorstát Eireann may from time to time, by Order, make all such general or specific adaptations of or modifications in any British Statute which, in the opinion of the Executive Council, are necessary in order to enable such Statute to have full force and effect in Saorstát Eireann.

Sub-section (2) states:

Any such adaptation or modification as is mentioned in this Section may be made notwithstanding that same is covered or effected by any general adaptation or modification made by this Act, but no adaptation or modification shall be made under this section which is inconsistent with any adaptation or modification made by this Act.

Section 19 reads:

Every Order made by the Executive Council under this Act shall be laid before each House of the Oireachtas forthwith and unless and until a resolution annulling such Order is passed by either House of the Oireachtas within the next subsequent twenty-one days on which that House has sat after such Order is laid before it, such Order shall have effect as if enacted in this Act, but no such resolution shall operate to prejudice the validity of anything previously done under such Order.

That has been the usual practice with regard to such matters. The amendment proposes to effect little more than the purpose that was intended by Section 19 of the Adaptation of Enactments Act. It specifies that an Order made by the Executive Council under this Section shall be laid before both Houses of the Oireachtas and shall not come into force and effect until the expiration of twenty-one days on which either House of the Oireachtas has sat after it has been so laid. There is evidently more suspicion in the minds of the members of this Oireachtas than in the minds of the members of the Oireachtas which passed the Adaptation of Enactment Act.

We have had more experience.

If Deputies have had more experience a case ought to be made against some Order that has been made by the Executive Council, some indiscretion, some Order that had to be annulled, and some act which was made valid by the terms of Section 19, to which exception was taken. But having passed through two or three years in which no case has been made against any Order made by the Executive Council, it is now asked: "We have had experience of you, but what about others that are to come?" I think there could be no more dangerous statement made than that, and I am perfectly satisfied in my own mind that any Executive Council in office during the next twenty-five years can be safely trusted to make only sensible Orders. Even if we were not in power for the next twenty-five years, if Deputy Johnson were here, I am perfectly satisfied that he will not have such a majority in the House as would enable him to pass any Orders he liked. It is most unlikely. Why, then, should he be apprehensive or nervous about what an Executive Council may do? As a matter of historical record, I would ask what confidence have you in the stability of governing institutions if you seek now to take back powers you gave two or three years ago, and for which course you have no grounds except, perhaps, a nervous feeling, and I do not think there is even that nervous feeling. I could not accept the amendment as it is drawn. I would accept the same class of amendment as is embodied in Section 19 of the Adaptation of Enactments Act. If Deputy Johnson were willing to withdraw, I would undertake to bring up on Report Stage an amendment having the same effect as Section 19 of that Act.

There is a difference between the Adaptation of Enactments Act and this proposal in Section 1. To begin with, the Adaptation of Enactments Act deals with Statutes, all of which are available to the public and may be known to any Deputy or any member of the public. Charters are private and are not known. I think they have not been published and are not available to the public, and modifications may be made which, in the opinion of the Executive Council, are necessary, and which may turn out in a year or two, when the public are made aware of the change that has been made, not to be necessary at all, but going beyond the necessities of the case. I think that the phraseology of the Adaptation of Enactments Act went beyond the necessities of the case and that it should not have been passed in that particular form. I think that we ought not to trust to the omniscience and absolute wisdom of the Executive Council. Certainly we should not allow a charter to be altered by the Executive Council in such a way as will be irrevocable, merely because the opinion of the Executive Council is to be final.

According to the phraseology of this section, although it is a copy of the phraseology of the Adaptation of Enactments Act, it makes the Executive Council's opinion the final court of appeal, or rather, it is final and there is no appeal. The opinion of the Executive Council as to what is necessary is the law in the matter. On the point of difference between the proposed sub-section and Section 19 of the Adaptation of Enactments Act, if a charter is altered and anything is done under that charter before the expiration of 21 days, it may be a very costly business to overtake the evil. I think that the proposition that no Order shall be made until the House has had an opportunity of disagreeing with it, is much more sensible as a matter of practical working than an Order which will allow the Minister to make an alteration in a charter. Then you have the House told: "Here is an accomplished fact. There is no use trying to recall it. You had better let the evil continue." I think the proposed amended form is much better than the form in the Adaptation of Enactments Act, and if the President would think it wise to bring in an amendment to alter Section 19 of that Act to the form on the Order Paper, I think he would be doing satisfactory work and I would be prepared to support it.

If I can get good grounds for it I am prepared to do it.

This question, as to whether a Minister or Ministries should have power to make Orders and then allow the Dáil to declare the Orders bad, has occurred a number of times and we have discussed the matter pro and con. In general, the President has thought it well that there should be the power to make an Order in spite of what the Dáil may do. Nevertheless, the other proposition, to allow the Dáil and the Seanad an opportunity of saying whether a particular Order or a particular modification is a good one is much more practicable and much more sensible than to allow an Order to be made and any evil that is coming out of it to be accomplished before it can be recalled. The offer of the President is much more satisfactory than to have no such proposition before the House. If he is not prepared to accept the amendment, I will have to accept the decision of the House in the matter. I hope he will agree to give the House an opportunity of saying whether the Order should be made or not.

Amendment negatived.

The question is: "That Section 1 stand part of the Bill."

On the Section and on the Bill I would like to make a suggestion to the President. Of course he is quite right when he says that this discussion is not due to any apprehension as regards what this or any other Council may do. That is not fundamentally my idea in raising this point at all. I have an idea in my mind, and that is, that if we have a Bill that is not drawn in a form which would exactly carry out the ideas of the Minister and Deputies, we should make suggestions.

Quite right.

The President himself has said, and it has been pointed out by Deputy Sir James Craig, that this Bill arises from the fact that certain chartered bodies are not able to do things which they are forbidden by charter. If the President would say that the Executive Council would do so on application from a chartered body it would get over most of the difficulties in my mind.

I would not be disposed to accept that. I am not going to discount the Executive Council in this or in any other matter. If it be the opinion of the Oireachtas that the Executive Council have not got their confidence and that they cannot be trusted to do what is right in order to enable such charters to have full force in Saorstát Eireann——

What I said applies to Sections 2 and 3 rather than to Section 1.

Question—"That Section 1 stand part of the Bill"—put and agreed to.
SECTION 2
(1) Section 7 of the Adaptation of Enactments Act, 1922 (No. 2 of 1922) shall apply to any board of commissioners or other board or body which was constituted and is governed by charter and exercises any function of government or discharges any public duties in relation to public administration.
(2) Any board or body constituted by charter and governed by statute or partly by statute and partly by charter, and also any board or body constituted by statute and governed by charter or partly by charter and partly by statute shall be deemed to be and always to have been a statutory board or body for the purposes of the said Section 7 of the Adaptation of Enactments Act, 1922.

I move:—

In sub-section (2), line 39, to delete the words "and always to have been."

This phrase, "and always to have been," makes the section have a retrospective effect. On Second Reading I used arguments to show why this section should not be made retrospective, and no reply was given at that time to those arguments. The President has appealed to us for our confidence in the Executive Council doing everything that is right. I trust by insisting on the inclusion of these words in this section they will not give anyone the right to say that they have taken away rights from them which they believe they have up to the present. I said on Second Reading, and I repeat it now, that there is at present before the courts a case in which the principal plea is founded on the construction of Section 7 of the Adaptation of Enactments Act, and by the inclusion of this phrase and the passing into law of this Bill that plea will be swept away, and, consequently, the right which a person has at present will be taken from him by making this Act retrospective. I am quite sure that it is not the intention of the Executive Council to do a thing like that. It is not their intention to say that if they find, or if it has been shown, that something has been done contrary to the law, and it is proved that they have done something contrary to the law, that they can go back, set it right, and pass an Act here making it retrospective. I cannot see what object is sought to be attained by the inclusion of this phrase. If I understand what the President has said rightly, and from what Deputy Sir James Craig has said, the object of the Bill is to enable them to make changes at the request of certain parties who are governed by charter. If that is the object of the Bill it is not necessary to have these words included. I therefore strongly urge that my amendment be accepted by the President.

I do not know whether the Deputy has anything further to add to what he has said. He has not exactly convinced me that the amendment is one which I would be almost bound to accept by reason of the moral case he put up. I gather from him that somebody might lose some rights he had unless this amendment were passed. That is a very serious statement to make.

Mr. O'CONNELL

I meant to say that he would lose the right to argue that he has rights. The courts have not decided the point, but it is before them for decision as to whether certain things which have been done have been done legally.

I have no hesitation in saying that I will accept the amendment if its non-acceptance would mean that we are taking away from him some rights he has in a case before the courts.

Mr. O'CONNELL

We have been so advised.

Very good, the amendment is accepted.

Amendment put and agreed to.

There are two amendments standing in my name as follows:—

"This section shall not apply to any University established by Royal Charter or to any body corporate similarly established for the regulation of the admission, qualification and conduct of members of any profession or business."

Before Section 4 to insert a new section as follows:—

"This Act shall not apply to any board or body constituted by charter or statute or partly by charter and partly by statute for the purposes of any religious denomination, educational institution or any solely charitable purpose."

These amendments run together and I am afraid that I cannot separate them. In my remarks on Section 1, I said that there was no real apprehension, nor, in a sense, am I apprehensive about this, but I think the reasons here are somewhat different. Sections 2 and 3 appear to apply in connection with Section 7 of the Adaptation of Enactments Act and Section 9 of the Ministers and Secretaries Act. That is to say, they appear to apply to statutory boards exercising functions of government and performing public duties. In Section 9 of the Ministers and Secretaries Act there are certain words limiting the provisions to the statutory boards to which the provisions of that section apply. It is from that section that the words of the amendment are taken. When the Ministers and Secretaries Act passed, that proviso was necessary even though it follows an exactly similar definition of the statutory bodies previously given in the Adaptation of Enactments Act and the statutory bodies there. My case is that if the amendment is necessary, as I believe it to be, in Section 9 of the Ministers and Secretaries Act, when we come to apply Section 7 here to a similar set of bodies the provision is equally necessary.

I am quite sure the President meant exactly what he said, that there was no intention of applying this Act to any other bodies than those of the nature indicated exercising functions of Government, or performing public duties. But the question is a legal one as to whether there are statutory bodies which are governed by the section or not. There is no doubt of the proviso in Section 9 of the Ministers and Secretaries Act, and I urge that a similar proviso is necessary when we come to apply Section 7 of the Adaptation of Enactments Act. I put down a similar idea in different words in the second amendment. The two things overlap, but do not perhaps completely overlap. What I would urge on the Minister is, that he would give an assurance he will have the points raised in amendments 4 and 5 carefully considered, and if he thinks, or his law advisers advise, that there is any legal force in them, that he will introduce an amendment to meet the points which have been raised.

I would like to assure the Deputy that, in my opinion, there is no necessity for these amendments. This section is confined to boards, commissioners, or other bodies which exercise the functions of Government, or discharge public duties in relation to public administration. I would like at this stage to emphasise this point in relation to this particular measure: when introducing a Bill of any other description an undertaking by a Minister may be taken at its face value. The decision he has come to, or the advice he is giving, is his own opinion, and in the long run it may not turn out to be exactly according to his intention, or the intention of his advisers at the time. With regard to this particular measure, members of the Oireachtas, and bodies outside, have an extra advantage in that they are given an assurance that if any Orders should be made by the Executive Council which would conflict with any undertaken that may be given here, it is open to the Oireachtas to take the necessary steps with regard to any such Orders, so that the Court of Appeal mentioned by Deputy Johnson is not the Executive Council but the Oireachtas. The question mentioned by Deputy Thrift is probably a question of law, and supposing it is, he has his security that it is still open to the Oireachtas to make a case against the Executive Council for endeavouring to have an Order made in conflict with assurances given. I presume I have met that point to the Deputy's satisfaction. These particular amendments are open to this disadvantage, that they would throw considerable doubt on the meaning and the effect of Section 7 of the Adaptation of Enactments Act. I am sure the Deputy had no such intention. To my mind it is not at all likely that the Executive Council would attempt to use it in respect of bodies or institutions to which it is not my intention to apply it. I think the Deputy ought to be perfectly satisfied now that there is no necessity for his amendments.

I am sure that there is no such intention as the President has mentioned, and I have said that all along. There is a legal point, and in saying that I am not speaking my own view. I consulted an eminent solicitor, and I have before me a copy of the opinion of counsel, to whose opinion the Government attaches great importance, and both of these gentlemen have given me the assurance that the legal point is a valid and good point. If the President will tell me that he will read their opinions, and if his opinions are changed after that, I will be satisfied.

Very good. I will be glad to receive these opinions.

Amendments, by leave, withdrawn.

The question is: "That Section 2 stand part of the Bill."

With reference to the President's point of view regarding Deputy Thrift's amendment, he asks the House to take the view that because the Executive Council has a certain intention in regard to any proposal it brings forward, the House need not examine with any particular care the phraseology of the proposal, because the present intention of the Executive Council is a valid guarantee that the law, or the intentions of the present Executive Council, will not be exceeded, and if they are, then the Oireachtas can bring the Executive Council to book in the matter.

I think the Deputy has misunderstood me. I said that in the ordinary course, while a Minister may take every possible precaution to insure that Acts interpret exactly what he and his advisers had in mind, it is sometimes found Acts do not, on interpretation by courts, exactly carry out the intentions of the framers. I said that as far as this particular Bill is concerned, orders made under it, if they exceeded or contravened in any respect the undertaking given, would be open to appeal to the House. In so far as this gives that right to such bodies as have been mentioned—universities or bodies established for the regulation of professions or business— then there is no case against the Executive Council.

If the President has withdrawn the proposition he put forward in the earlier stages of the discussion, I have nothing more to say. In reference to the reply he made to Deputy Thrift with regard to the intentions of the Executive Council, I was going to say that it was very closely approximating to the attitude adopted by the existing Ministries in Spain and Italy in regard to the advisability of legislating by decree of the governing body, or executive of the time, as distinguished from legislation by a parliamentary body. I express my non-concurrence with that view, which the President has stated only little more explicitly than has been stated many times by Ministers during the last couple of years.

Question put and agreed to.
Question—"That Sections 3 and 4 stand part of the Bill"—put and agreed to.
Title agreed to.