Dáil Éireann debate -
Wednesday, 25 Nov 1925

Vol. 13 No. 10

STATEMENTS MADE OUTSIDE DÁIL. - ADAPTATION OF CHARTERS BILL, 1925—REPORT STAGE.

Mr. DOLAN (for Deputy Duggan)

I move:—

In page 1 to add at the end of Section 1 a new sub-section as follows:

"(2) Every order made by the Executive Council under this section 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."

This amendment is brought forward to meet an undertaking which was given.

Mr. JOHNSON

I take it this will be the best opportunity for saying what I want to say on this Bill. This motion is moved, I have no doubt, as it is believed to be better than the motion which should make it impossible for any acts done under the new Charter to be valid until there has been a formal assent. It is certainly better than to have no such provision inserted in the Bill, but on the earlier stages of the Bill, on the amendment which I moved, the President practically challenged the citation of a case where the Adaptation of Enactments Act was used to make changes not strictly necessary by virtue of the political change that had taken place and consequentially necessary. Under the Adaptation of Enactments Act there was, in fact, a change made which was more than a consequential change. I refer to the Central Midwives Board. The position of that Board was altered on the Minister's own admission, not because an alteration was inevitable as a consequence of the change in the political situation, but because the Minister thought another composition was better. Originally the Board was obliged to include two representatives of the local authority. After the alteration by virtue of the change made by the Ministry under the powers given by the Adaptation of Enactments Act, there is now no guarantee that the local authorities who are charged with enforcing the Midwives' Act will be represented on the Board. The Minister also altered the method of appointment without consultation. On that point I asked a question as follows:

"To the Minister for Local Government :—If he will state why it was considered necessary to alter the statutory composition of the Central Midwives Board by Order under the Adaptation of Enactments Act, 1922; whether an effect of the alteration is to deprive the local authorities, charged with the supervision of midwives in their areas, of their specific representation on the Board; whether none of the midwives' representatives recently appointed to the Board is a member or representative of any organisation consisting exclusively or largely of working midwives; and if he will state why recommendations of the Irish Nurses' Midwives' Union, which was duly consulted in accordance with the statutory requirement, were ignored in the appointment of midwives' representatives on the Board."

This was the answer:—

"The procedure for consultations prescribed in Section 3 (1) (a) of the Midwives (Ireland) Act, 1918, was found cumbrous and useless, and was consequently omitted in the Adaptation Order."

It was found cumbrous and useless by the Minister, but it was an Act of Parliament which had been taken over by the Oireachtas. The Adaptation of Enactments Act was declared to be clearly for the purpose of adapting Acts in such a way as was necessarily consequential on the change made by the Treaty. The Minister makes a change of the actual content of the legislation, and that is done by Order. I have protested that it is the exercise of an authority which I will admit is a consequence of the remissness of the Dáil, including myself, in allowing a phrase, saying "at the discretion" or "which in the opinion of the Executive Council is desirable," to be inserted. We have given to the Ministry power to adapt legislation by Order in such a manner as he may think desirable. Now the President contends that there is no case in which the Ministry have used their powers under that Act to alter legislation. I have cited a case which may not be of the utmost importance, but it is of considerable importance. It is to this effect: it shows that the possibilities being there, Ministries may take advantage of the possibilities.

The effect of that precedent upon the Adaptation of Charters Bill is very marked. This amendment will be inserted, no doubt, but it throws upon the Dáil the obligation to search for every projected change. Those changes are not specifically brought to the notice of the Dáil. They will be laid upon the Table, and any act which may be done under it, even though the Dáil eventually disagrees with the Order, becomes valid and of effect. The giving of power to the Ministry to alter Charters in the same way as they have been given power to alter enactments, on the precedent which I have quoted, shows that they may alter Charters radically without the formal consent of the House. I think that the position ought to be safeguarded by some form of words which I cannot devise, so that nothing but changes which are consequential upon the political alteration should be permissive, and that there should be a rigorous protection against any such change by merely the Order of a Minister. I am informed that it is unheard of in respect to Charters that they should be altered. They may be annulled, they may be extended, but it is unheard of that they have been altered in the past, and I am only uttering this as a warning of the powers that we are giving to the Ministry under this Bill to alter the actual content of Charters with only a limited safeguard such as is contained in this amendment. The powers of the Adaptation of Enactments Act have been used under the same form of words as is proposed in this Bill to alter the content of an Act dealing with the Midwives' Board, merely because, as the Minister said in his explanation, it was found cumbrous and useless. That may be a justification for new legislation. It may be a justification for bringing forward a Bill to the Dáil to amend legislation, but it is not a justification for altering the law by an Order of the Minister, and I say that the Dáil ought to be warned of the powers they are giving to the Ministry under this Bill to alter Charters which may be of very much greater importance to the persons concerned, and possibly even to the public, than the alteration which has been made in the Midwives' Bill.

Professor THRIFT

On the Committee Stage of this Bill I raised such legal points as Deputy Johnson has now been referring to, as well as some others, because I was seriously apprehensive as to what was the real effect of the Bill and as to the powers which it did confer on the Government. Since the Committee Stage the President has been good enough to give me and others similarly interested in the effect of this Bill an opportunity of going into these legal questions with him and of getting satisfaction as to what is the real legal content of the Bill. The effect on my mind of the President's representations was that he and his advisers were perfectly satisfied that the legal implications in the Bill were just those which he had expressed himself as the intentions of the framers of the Bill and that it gave them no other legal powers. The legal argument was to this effect: that this Bill was to be taken side by side with the Adaptation of Enactments Act, and that it did for Charters what the Adaptation of Enactments Act did for statutes, and that stress must be laid on the words "necessary" and of "full force and effect"—that acting under the Bill the Government would be only empowered to make such changes as were necessary in their opinion no doubt but still were necessary, and that such changes could only be of a kind that would make the Charters fully operative in the Free State.

The President gave instances of how that could be effected. So far it is quite satisfactory, I think, to hear that the legal opinion of the Government is that legally they are only asking for powers to carry out what they stated in the House were their intentions in this Bill Deputy Johnson has raised afresh the question as to whether the legal effect of the Bill is more than that or not. I do not profess to be a lawyer. I only profess to be able to form my own judgment on an argument when it is put up to me, and I see that the force of this legal argument raised by the President is very strong. I should have been, I would like to say, better satisfied if the Government had agreed to insert such words as "on the application of the parties concerned," or to leave out the phrase "in the opinion of the Executive Council." I think that would have satisfied me completely. It is perfectly clear from what the President said that the intention of the Government is to make such minor changes as have become necessary owing to the changes in the Constitutional position. The only question I have in my mind then is the one as to whether the legal meaning of the Bill is that or more. I have admitted that the President has put up a very strong legal argument, and I hope that he is right in his contention that the legal effect of the Bill is no more than that it enables the Government to make such minor changes as have been indicated already.

Sir JAMES CRAIG

I rise to express my disappointment that the President has not seen fit to make the change that was suggested to him on the last day—namely, that any change made in the Charters should be made at the request of the persons holding the Charters. I have been told that the Government is now taking more power to themselves than the King himself ever sought or ever put into force. Even Kings who have given Charters never at any time interfered with these Charters unless at the request of those holding them, and then when a request was made the King was prepared to grant a supplemental Charter or to make some amendment in the one that existed. What has aroused the fears of those who hold Charters is that the Government, in taking these very wide powers now, seem to have taken the power to alter Charters at their discretion without any reference whatsoever to the bodies who hold them.

I was to some extent responsible for the introduction of this, as I stated on the last occasion, but, as I said then, I had no idea when I made application to have a change made in a charter that the Government would do more than either change the individual charter or at all events take power to make such changes in the charters as the bodies holding them wished to be done. Deputy Professor Thrift explained to me since the last occasion that the President had made it pretty clear to him that they did not intend, or rather that the meaning of the change was nothing more than what we had been seeking for, namely, that the Executive Council would only make changes at the request of the chartered bodies. If that be so, or if it is anything like that, I express my satisfaction with it.

I am perfectly satisfied with the statement of the President that he himself had no intention whatever, nor had the Executive Council any intention whatever of going further than that and without the slightest reservation I accept that statement. On the other hand, it is quite clear the President cannot give any promise for his successors— I suppose he will have successors some time or another. At any rate, it is clear if it is made law that when the President gives up the reins, which I hope may not be for a long time yet to come, and when perhaps Deputy Johnson comes into his shoes, Deputy Johnson will find himself in the possession of a law that will give him power to make changes without any reference to the people who hold these charters, and if the matter comes into the law courts the lawyers would have to read the Act as they found it and not in accordance with any promises made by the President in respect of them. However, while expressing disappointment that the President was not able to meet us in this matter, I have no intention of raising any objection except to express my disappointment that he had not gone the full way.

The PRESIDENT

This Bill must be taken in conjunction with the Adaptation of Enactments Act, 1922, and I think if Deputy Sir James Craig reads the title of that Act and this Bill, a good deal of his apprehensions would be very easily satisfied. The Adaptation of Enactments Act is "an Act to interpret and adapt to the circumstances of Saorstát Eireann certain Acts of the British Parliament having the force of law in Saorstát Eireann and certain statutory rules, orders and regulations and certain contracts."

This Bill is a Bill "To provide for the adaptation to the circumstances of Saorstát Eireann of charters which have the force of law in Saorstát Eireann and to apply to chartered bodies certain enactments relating to statutory bodies."

I am not satisfied from the case made by Deputy Sir James Craig that there is any likelihood of the Executive Council getting outside of its authority in connection with Orders that will be made under this particular Act. The very first section says that "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."

Deputy Sir James Craig knows of the weakness in one particular institution having a charter for its operations. There are others. Some of them will not make application, and some operate as if there were centred in themselves all the powers that ought be centred in the institution if it was in full working order, and to put in any such qualifications as would limit the power of the Executive Council to take such action as would appear to them necessary in order to make the charter have full force and effect, would be placing a limitation upon it. I did not know, and I have not heard before about the Central Midwives Board Order, but the Executive Council, if it made the Order, was open certainly to criticism here if it exceeded its authority in making the Order. I am afraid I do not feel satisfied that a case has been made for putting a resolution through the House, instead of the proposal that we have outlined here in the amendment.

I do not feel satisfied that we should adopt that suggestion rather than the other, and make the working of the two Acts different, for no other reason than that some persons whose business it was to see whether the Orders placed on the Table, in respect of certain Acts, were advisable in the circumstances, failed to do so, or whether unusual power was taken. It is not a good case in my opinion. It is the one case mentioned within three years, and from the fears that have been expressed one would think that the Executive Council would be sitting up all night making Orders in connection with all the charters in existence. I should say that the Executive Council moves rather slowly in respect to these matters, very, very slowly. And it moves always fortified by the best advice that can be given, and very few Deputies have any cause of complaint in connection with the legal advice which has been tendered to the Government since the first meeting of the Dáil here in September, 1922.

I am not satisfied that the Executive Council should only move when it is requested to move. Cases have been brought under my notice where in the case of certain charters certain persons holding judicial office or other office in the Saorstát had certain duties in connection with certain chartered bodies. I know in one case certainly where that was not brought to the notice of the Executive Council by one of those bodies although it ought to have been. If in the granting of the charter the Lord Chancellor, or the Lord Chief Justice, or some other person occupying a somewhat similar position, was laid down as having a certain office of responsibility, in connection with the working of the charter and that the persons functioning the charter neglected to bring to the notice of the Executive Council such infirmity or such omission by reason of the passing of the Courts of Justice Act or by reason of not having a Lord Chancellor, I say it would not be advisable in my view to limit this Bill to cases where the Executive Council would only come into operation when, and if representations were made to them, in such cases.

As regards safeguards this Bill is, properly speaking, an addition to the Adaptation of Enactments Act, 1922. No case has been put forward with the exception of the one made by Deputy Johnson, and even that one does not evidence a strong case against the Executive Council. Provision is made in the Bill for having laid upon the Table Orders made by the Executive Council. Now if there is one class of people with whom I have come in contact in recent times who are jealous of their rights and privileges which they have acquired I should say it is those who are in possession of charters. Never in all my experience have I come across a more conservative body of men, and I cannot imagine the Executive Council making an Order that these people would not hear about in quick time and take steps to have the Dáil or Seanad put in possession of every possible infraction of their integrity by reason of the Order made by the Executive Council.

The position is further strengthened by the fact that we have, first of all, the security I have already mentioned, that this is really an Adaptation Bill; secondly, that any Order made must come before both Houses and that a resolution annulling such an Order passed in either House nullifies the Order. I do not know of any reasonable security that could be asked for in addition to that. Thirty-one members of the Seanad can hold up an Order and also a majority in the Dáil, and the discussion which would take place in the Dáil would be before the Seanad in making up their minds as to whether or not they should annul any Order made. I think that I have met the case fairly and fully by the insertion of this amendment. It would be a great reflection upon the Executive Council to insert any stronger safeguards in this Bill than there are in connection with every statute that has been passed or that we have adopted by the Adaptation of Enactments Act, 1922. It would certainly in the minds of the citizens put the holders of charters in a superior position to the ordinary citizen. It would in my view place them in a very privileged position and a position which I am satisfied they would not claim after the matter had been explained to them.

Amendment agreed to.

Question proposed:—"That the Bill as amended be received for final consideration."

Mr. JOHNSON

On that question, I want to repeat the warning that I was giving. I am not claiming that the position of the charter holders should be better than the position of the public. What I pointed out is that there was a mistake, a loophole, shall I say, in the Adaptation of Enactments Act by which a Minister was enabled to make an alteration in a statute without the formal sanction of the Oireachtas. In the case in question it may not have been very serious, but the fact that the Adaptation of Enactments Act conferred upon Ministers such power as to allow this alteration of a statute to be made by Order shows that we were remiss and that a loophole was allowed in that Adaptation of Enactments Act which ought not be repeated. The obvious thing, of course, is to amend the Adaptation of Enactments Act to prevent such a thing happening again, but as the matter before us is the Adaptation of Charters Bill, I urge that there ought to be inserted some section which, at least, will be explanatory, which would enable the Courts to decide that the change that was being made was necessary to enable a charter to have effect —not an altered charter, not a charter granting new powers or diminishing or changing the power effectively, but showing that the power is taken to alter the charters and adapt them to the purposes of Saorstát Eireann.

The case I am making is founded entirely upon the proposition that the Ministry was empowered to make an alteration in a statute which went beyond the intentions of the Dáil or the claims of the Ministry; that it was framed in such a way as to give Ministers greater power than they sought, and that when a minor occasion arose they took advantage of that excess of authority, they took advantage of the loophole and altered the Act respecting midwives. They altered the Act respecting midwives and the constitution of the Midwives Board by an Order. That certainly was not intended, and certainly was not referred to in the discussions on the Adaptation of Enactments Act. Possibly, if an attempt were made in the courts to nullify that Order it might succeed. I do not know. But, as it appears to the layman, the power which was given under Section 12 of the Adaptation of Enactments Act, which is now being transferred in respect to the Adaptation of Charters, was greater than the power they actually sought. It went beyond merely giving power to adapt enactments or, as in this case, charters, to make them effective in Saorstát Eireann, by giving power to alter the composition of bodies which were set up. That is what I want to urge upon the Dáil and upon the Ministry, because I do not expect the Dáil is going to take any action now. I urge upon the Ministry the importance of amending this Bill in such a way as to make it quite clear that there is no power given to alter the charters beyond such powers as would enable the Government to make these charters effective in Saorstát Eireann.

The PRESIDENT

Deputy Johnson has referred to the Midwives Board as possessing some charter.

Mr. JOHNSON

No.

The PRESIDENT

I understood the Deputy to say so.

Mr. JOHNSON

The Midwives (Ireland) Act, 1918, provided that a Board would be set up and would be composed of certain elements.

The PRESIDENT

And the board was a statutory body. We had perfect authority under the Adaptation of Enactments Act to interrupt, charge or do anything else, with regard to that body. If my recollection is correct it was mentioned in the Dáil—it was certainly before me, in the information I had regarding statutory bodies at that time—that the Executive Council had power to dissolve boards of commissioners and set up other statutory bodies in their place if such action were deemed desirable.

Mr. JOHNSON

Yes, power granted by the Adaptation of Enactments Act.

The PRESIDENT

Precisely.

Mr. JOHNSON

I maintain that is power which is going beyond the Adaptation of Enactments.

The PRESIDENT

No.

Mr. JOHNSON

Except in so far as the persons composing the board were not within the jurisdiction of the Saorstát.

The PRESIDENT

More than that.

Mr. JOHNSON

In this case the Act said that this board was to consist of representatives of the local authorities. The Minister came along and under that power said: "No, we are omitting the representatives of the local authorities and we are putting somebody else on." That is the protection I am claiming should be ensured in a Bill in respect of the position of boards, let us say, under charters. Supposing there were an educational body which, under charter, comprised representatives of certain classes of persons and the Ministry comes along under these powers and say: "In future we are altering that charter, and one particular set of people representative of one particular interest or point of view will be eliminated." There you have the perfect analogy of what was done by Order under the Adaptation of Enactments Act in respect to the Midwives Board.

The PRESIDENT

I take it what Deputy Johnson implied was that the Executive Council by reason of the Adaptation of Enactments Act proceeded to take more power than was indicated to the Dáil would be taken. Am I right in that?

Mr. JOHNSON

I mean to say more power than the House itself believed or than was indicated to the House or even than was intended by the Adaptation of Enactments Act.

The PRESIDENT

The power taken in connection with the Adaptation of Enactments Act is embodied in Section 7. Section 7 has four sub-sections. It was laid down clearly and distinctly in that that there was such power and that the Executive Council should enter into the possession of such power. Presumably, when asking for such power and entering into possession of it, the Executive Council intended to exercise it. What was really the case for that very big section? At one time, it was alleged that there were sixty-five Boards or Bodies of Commissioners who had statutory authority in this country. It was not intended at the time the Adaptation of Enactments Act was under consideration that all these bodies should be continued. In order to permit the Executive Council to deal with that situation, Section 7, embodying four sub-sections, was put into the Adaptation of Enactments Act. Properly speaking, it might be held that it provided a sufficient amount of material for a separate Bill or a separate Act, but that was not done. It was made perfectly clear—certainly in the discussions we had in the Executive Council, if not in the Dáil—that it was intended to do exactly what has been complained of by the Deputy.

Professor THRIFT

Section 1 of this Act is the exact parallel of Section 12 of the Adaptation of Enactments Act, and not of Section 7, so that if the case Deputy Johnson cites is covered by Section 7, I do not think it is appropriate to Section 1 of this Bill. I made a statement embodying my understanding of the President's view as to the legal interpretation of the Act. I would be very glad if the President would confirm or deny the presentation I made of his legal interpretation of the force of the Act.

Mr. JOHNSON

May I draw the attention of the Minister to Section 7 of the Adaptation of Enactments Act, which reads as follows:—

Wherever any statutory Board of Commissioners or other statutory Body to which this section applies was in existence on the 6th day of December, 1921, and had jurisdictions, powers or duties extending to the whole late United Kingdom or to any part thereof which included the area now comprised in Saorstát Eireann, the Executive Council may by order establish a Board of Commissioners to exercise in Saorstát Eireann the functions which were on the 6th day of December, 1921, exercisable by such statutory Commissioners or statutory body as aforesaid in the area now comprised in Saorstát Eireann.

It had reference distinctly to a larger area than Saorstát Eireann.

Major COOPER

I am a little concerned about the authority the President quoted. The President stated that the position was made quite clear in the discussions that took place in the Executive Council. How is anyone outside the Executive Council to know what has passed in the Executive Council?

The PRESIDENT

I was speaking of three years ago, when the Deputy had not any responsibility in the matter.

Major COOPER

I hope the President will excuse me for calling attention to the fact that he has laid down a serious principle. Discussions in the Executive Council are not, I think, reported. They are, and they must be, absolutely and strictly confidential. I hold that the President would be justified in preventing Deputy Mulcahy or Deputy MacNeill from mentioning anything that had been said in discussions in the Executive Council. We cannot, therefore, have it given as an argument that a fact is demonstrated because of discussions that took place in the Executive Council. Clearly and obviously, a fact cannot be demonstrated in this way to Deputies here or to the public outside who are entitled to a certain amount of knowledge in regard to these matters. I hope the President used that argument on the spur of the moment, and that he is not going to set it up as a considered doctrine of State, because it is a dangerous doctrine and one which would damage the Government and the Executive Council far more than any other body.

The PRESIDENT

I should say so, but I would draw attention to the fact that this Act is No. 2 of 1922. At that particular time, the matters which were under discussion by the Executive Council were more or less National matters—such as the purpose of the Adaptation of Enactments Act—and were really on a different basis from what is ordinarily the subject of consideration by the Executive Council.

Professor THRIFT

Does the President still insist that the real force of Section 1 is that any change proposed must be deemed by the Executive Council necessary in order to make a charter fully operative in the Irish Free State?

The PRESIDENT

Yes.

Question put and agreed to.

Fifth Stage fixed for Tuesday.

Order 7 (Motion by the President, resumed) discharged, and ordered to be put on the Orders of the Day for to-morrow (Thursday).