Constitution (Amendment No. 12) Bill, 1928 (From the Seanad).

The Dáil went into Committee.

I move: That the Committee agree with the Seanad in amendment No. 1.

Section 1. The word "is" deleted in line 30 and before the word "or" in line 31 the following words inserted:—"is sent by Dáil Eireann to Seanad Eireann for its recommendations under Article 38 of this Constitution."

The Bill after leaving the Dáil was to the effect that seven days would run from the day of the certificate given by the Ceann Comhairle. The Seanad have passed an amendment substituting for that "the day on which a Bill certified by the Chairman of Dáil Eireann to be a Money Bill is sent by Dáil Eireann to Seanad Eireann for its recommendations under Article 38 of this Constitution." I think probably what was in mind in this connection was that if a Bill were to pass the House here at a minute to 12 midnight, only six days would run if the date were to be from the certificate by the Chairman. I do not know if there is any other point in it. It is an inconsiderable alteration, and in that case perhaps a day might be lost. Seven days is considered short enough without practically restricting it to six. There is no real point in it.

Question put and agreed to.

I move: That the Committee agree with the Seanad in amendment No. 2:—

Section 1. The words "Article 38 of this Constitution" deleted in lines 32-33 and the words "the said Article 38" substituted therefor.

The second amendment is consequential.

Question put and agreed to.

I move: That the Committee agree with the Seanad in amendment No. 3:—

Section 1, lines 41-47 inclusive deleted and the following words substituted therefor:—"the question whether the Bill is or is not a Money Bill shall forthwith be referred to a Committee of Privileges consisting of such number (not exceeding three) of members (if any) as shall be elected by Dáil Eireann within seven days after such reference, such number (not exceeding three) of members (if any) as shall be elected by Seanad Eireann within such seven days, and a Chairman who shall be the senior Judge of the Supreme Court able and willing to act and who in the case of an equality of votes, but not otherwise, shall be entitled to vote."

Amendments 3 and 4 have relation to the Constitution of the Committee of Privileges. As the Bill left the Dáil, it was thought in the Seanad that by the refusal of any member to serve or of either House to appoint the three members that possibly the Committee would not function and these two amendments make provision for the Committee functioning and make provision for the quorum and the appointment of a Chairman in the event of the Chairman being prevented by illness or any other cause from attending What was really in the mind of the Seanad in regard to it was in the event of illness or any other cause preventing a member from attending there was no provision for the Committee functioning in the absence of the full number. This particular amendment I think fulfils the two conditions, one that either House might not appoint members to attend on the Committee of Privileges and, two, in the event of a vacancy arising the Committee can function notwithstanding the fact that there is one short in number. I think that there is nothing very material in the alteration and it satisfies the misgivings that were expressed in connection with the functioning of the Committee.

There are certain points arising out of this amendment to which I would like to draw the attention of the House. Deputies will remember that when this Bill first came before the Dáil certain Deputies on this side of the House put themselves to great pains to convince the President that the Bill did not in fact achieve what he asserted it was designed to achieve. On the Second Reading and on the Committee Stage we urged that the increased power which it was proposed to give to the Seanad by this Bill in relation to Bills certified by the Ceann Comhairle to be Money Bills could be used for obstructionist purposes. Despite the eloquence and the ability with which that case was put forward by Deputies on this side of the House, the President refused to be convinced for a very long time. After we had argued the matter out on the Committee Stage we succeeded in getting into his head that there was some substance in our arguments. The Bill was then hung up for a period of about 12 months, at the end of which time the President moved the Report Stage and introduced certain amendments designed to meet the particular points that we had drawn attention to. The Bill then went to the Seanad.

I said that Deputies here saw the danger that the power given to the Seanad by the Bill would be used for obstructionist purposes. The Seanad, on the other hand, saw the danger of the particular wording used in the proposed section of the Constitution giving powers to the Dáil to obstruct the functions of the Seanad in the same connection. And therefore the Seanad have moved this amendment, designed to make obstruction by the Dáil impossible. Now Fianna Fáil, Cumann na nGaedheal and the Seanad have all combined to try and make this proposed section of the Constitution workable. Unfortunately, however, the material was bad in the first instance, and, despite the ability which Fianna Fáil brought to the task, I suggest that the section of the Constitution is not yet workable in all circumstances. We have provided for the possibility of the Dáil refusing to appoint members on the Joint Committee. We have provided for the possibility of the Seanad refusing to appoint members on the Committee of Privileges. We have provided for the possibility of the Committee of Privileges failing to report within the 21 days specified, but there are certain other contingencies against which we have not yet safeguarded.

The Bill provides that the Committee of Privileges shall consist of three members elected by the Seanad and three members elected by the Dáil and the Chairman who shall be a member of the Supreme Court able and willing to act. Who appoints the Chairman? Presumably the Government are responsible for the appointment of the Chairman. Is there anything in this Bill which says that the Government must appoint a Chairman? If the Government fail to appoint a Chairman can the Committee act, and if the Committee cannot act what happens to the Bill certified by the Ceann Comhairle to be a Money Bill in respect of which the certificate is questioned by the Seanad? If there is no Judge of the Supreme Court willing to act what happens? Can the Committee be constituted? Can a Chairman be appointed? Can the question of whether or not a Bill is a Money Bill be determined? If we succeeded in getting members appointed by the Dáil and members appointed by the Seanad and a Judge of the Supreme Court appointed by the Government, who actually brings the Committee together? Who appoints the time and place at which they meet and summons the first meeting? If the person who might carry out that duty fails to do it what will the position be? Will the Bill certified by the Ceann Comhairle to be a Money Bill become such without question after the expiration of the 21 days? Is it anybody's duty to summon the Committee to meet or will we have the situation that three members of the Dáil will be available here, three members of the Seanad available in the other Chamber, a Judge of the Supreme Court available somewhere else and no machinery in existence by which they can be brought together and constituted as a Committee of Privileges.

We spent a long time over this Bill. It was ordered by Dáil Eireann to be printed on 31st October, 1929. My recollection is that it was introduced before then. It is Constitution (Amendment No. 12) Bill, 1928. We spent a long time over it and since we have spent such a long time over it let us at least try to produce a workmanlike Act at the end. We, the Fianna Fáil Party, are not particularly concerned about the Constitution, whether it is workable or not, but when that document goes abroad it is studied by Constitutional lawyers in other countries who are anxious to know the forms of Government here and we at least would like them to think that we can produce a workable Constitution. I suggest to the President and the House that if Article 35 is amended as suggested here workable machinery will not be established in consequence thereof. We have provided for certain contingencies, not for them all. Even at this late hour the President can withdraw the Bill and ask for the co-operation of the Fianna Fáil Party in having a better one prepared.

Are we going to have no reply from the President or from any member of the Government Party to the point which Deputy Lemass put before the House?

If the Deputies have exhausted themselves I will be pleased to reply.

There is just one other point that occurs to me. I note here that provision was made for a vacancy created by the death of the Chairman, but apparently there is no provision made to fill a vacancy created by the death or illness of any member of the Committee. It arises more properly on Amendment 4. Still it appears to me that that precaution has not been taken by the President. I may say that I am perfectly certain that if we had taken this Bill half as seriously as the President took it in forcing it through the House by the methods he adopted, we would have riddled it with pot-holes by now.

I do not understand that "riddled with pot-holes." It is with some other instrument things are riddled not with pot-holes. As regards the first point mentioned by Deputy Lemass, I expect it will be the duty of the officers of either House——

You expect?

——in the same way as any Committee of Privileges or Joint Committee are assembled in connection with any other matter to assemble the meeting. As regards the appointment of the judge, I expect an officer of the House will do his duty in respect of that. It would not be a question for the Government. As regards the third point mentioned by Deputy MacEntee, the amendment deals with the functioning of the Committee in the absence of a person, but it does not provide, or it was not intended to provide for replacing a member who would be incapable of acting or who died or resigned, or anything else of that sort. Deputies will realise that there would not be a considerable amount of time available for that. In the first place, if, on the sixth day, objection was raised in accordance with the Constitution to the certificate, then both Houses would require to be summoned to elect their members. That would take three or four days. The Committee would then sit. One man would be ill. It would require to report back to either House and the House may have to be summoned again to elect its members. It was thought that all that may not afford a sufficient length of time for the consideration of the business. That was the reason why it was thought safer to provide for the functioning of the Committee in the absence of any one of its members, excepting, at all times, the Chairman.

The reason being because the Chairman, I expect, is expected to hold the balance evenly as between representatives of the Dáil and the Seanad.

Otherwise why has he a casting vote?

He has a casting vote only in the event of equality.

Exactly. Supposing, as may happen, a very important matter is in dispute and this machinery is resorted to, you have a Committee set up of three members of the Seanad and three members of the Dáil. Its decisions may affect the whole course of constitutional development in this country. One of the members of Dáil Eireann either dies or ceases to be a member of this House through some other cause, and the Government which is elected by this House and which is responsible to this House has made no provision whatever to deal with such an important contingency as that. There would then be on this Committee of Procedure and Privileges three members representing the Seanad and only two members representing the Dáil. As the three members presumably would be appointed to the Committee to uphold the position which had been taken up by the Seanad, this House, having elected a certain number of members to uphold the position taken up by the Dáil, would find itself in a minority upon the Committee, and would have no remedy whatsoever. In such a situation the Committee may make such a report, as I said before, as would affect the whole course of constitutional development in the country.

With respect to what the Deputy first mentioned, that the Committee may have to decide some question on which the whole constitutional development would depend, that is not so. They will meet to consider whether or not the decision of the Ceann Comhairle in deciding that a Bill was a Money Bill is correct, and they are confined to that. There is no fear then of any constitutional danger with respect to that. The next point is the danger of a member of the Dáil dying. Happily that does not often occur, but there is a danger, I think of some of them being talked to death. The physique of the members of the Dáil, however, seems to be equal to it. I would suggest that the Dáil in a case of this sort would select people who would not die or whom they would reasonably consider would not die during the consideration of this matter.

Is there any person sure of that?

No, but there is a reasonable amount of assurance. I would advise them, at any rate, to keep in a state of grace so that they would be all right if anything should happen. Time does not permit of the replacing of members of the Committee by reason of the lapse in the first instance of six days and the absorption of four or five days in calling the House together, the sitting of the Committee and the reporting back. The twenty-one days would have run. That was the objection to making provision for that. One really could not I think imagine an amendment of the Constitution bringing in three members who would be as it were a first team and in the event of anything happening to disqualify them or prevent them from attending having a second team ready. I do not think it would be good business. It has rarely happened in our experience and I think in the experience of the working of any Parliament that during the course of the business members appointed for a particular purpose such as this were incapacitated by reason of death. It is an unlikely contingency and I do not think it necessary to provide for it.

The more I listen to the President the more astonished I become at his lack of appreciation of the situation which might arise under this Bill. Yet the Bill is a very simple one. It is designed to deal entirely with Bills which though certified by the Ceann Comhairle as Money Bills have not been accepted as such by Seanad Eireann.

Or by Dáil Eireann; shall we say for all practical purposes by Seanad Eireann? If the Ceann Comhairle decides for the purposes of the Article of the Constitution that the Bill is a Money Bill, I hardly think his ruling in that matter is going to be questioned in this House. The President says that there scarcely can be any dispute in connection with Money Bills. Has the President ever studied one of his own Finance Bills? I am certain that if a person wished to raise a constitutional issue between the two Houses he could certainly say that it was questionable whether any of the Finance Bills that have gone from this House are Money Bills, because a Money Bill is very strictly defined by the Constitution as being a Bill which deals only with such-and-such matters.

And is very strictly examined before consideration.

Exactly. As I said, if the other House wished to enter into a constitutional dispute on a question like this, I believe that in any of the Finance Bills which have left this House they could find grounds for entering into such a dispute. The matter is not at all so simple as the President seems to consider.

I should like to ask the President who, in his opinion, is to appoint the Chairman.

I think Deputies Lemass and MacEntee are unduly anxious about the personnel of the Committee. I think Deputy Lemass asked: in the possible, but almost inconceivable position, of a Judge of the Supreme Court not being willing to act, who would then be Chairman?

It is set out in the Bill that the Chairman "shall be the senior Judge of the Supreme Court able and willing to act."

In the inconceivable position of a Supreme Court Judge not being willing to act, will there be any provision for appointing a Chairman?

I hesitate to think that a situation of that sort would arise. I think it is almost inconceivable that it would arise. If such a contingency were to arise, then the next person in seniority would, I think, according to the wording of the Bill, be liable to bear all the responsibilities of the person who is senior to him. I do not think there is any possible likelihood of being unprovided with a Judge of the Supreme Court according to this.

I am sorry the President has not understood the Bill he is sponsoring. That is the only interpretation I can put upon the statements which he is making. Might I again remind him that this Bill was introduced in 1928 to amend Article 35 of the Constitution by extending from three to seven days the period during which the Seanad could question——

And the Dáil.

The period during which the Seanad or the Dáil could question a ruling of the Ceann Comhairle, and also to extend the powers of the Seanad in another direction as well. We tried to convince the President for a long period that the proposed new Article of the Constitution was defective, in so far as the machinery which it established might not work in all circumstances. After a long and tedious argumentation, we succeeded in convincing the President that we were right, and the President introduced an amendment, which is the last paragraph of the proposed Article, the purpose of which is to provide that if the Committee of Privileges does not report within twenty-one days, then the ruling of the Ceann Comhairle automatically becomes operative. The Bill as amended went to the Seanad. The Seanad saw the possibility of the machinery breaking down in other directions, and they introduced the amendments which we are now discussing. I say that neither here nor in the Seanad have we succeeded in making the proposed section fool-proof or accident-proof. The President may tell us that he expects the officers of the Dáil will summon the Committee. If we have to insert an Article here to provide that a Committee consisting of three members of each House and the Chairman, who shall be a Judge of the Supreme Court, shall perform the function for which it is established, surely we should also have a provision that the officers of the Dáil, or those whose duty it is to constitute the Committee, shall carry out the duty as soon as the machinery starts to operate. I cannot see the sense of passing a Bill putting in a new Article into the Constitution if there are conceivable circumstances in which that Article will not be able to meet the contingency against which it is intended to guard. The Committee might possibly not be constituted; the Chairman might possibly not be appointed —under extraordinary circumstances, I mean; those whose duty it is—and it is not clear yet whose duty it is—to summon the Committee and appoint a Chairman might not do so. Under conceivable circumstances there may not be a Judge of the Supreme Court willing to act. There are only three Supreme Court Judges.

It is possible that one of them may not be willing to act; it is possible that, under pressure of business, one of them may not be able to act. What is going to happen in that case? That is the point I want made clear. The President may tell us that it is not likely that these circumstances will arise. I want to know what will happen if they do arise? We must provide against the contingency. If a Bill is passed by the Dáil and certified by the Ceann Comhairle to be a Money Bill, and if the Seanad sees fit to question the Ceann Comhairle's ruling, what happens that Bill if, because of any of the circumstances I have mentioned, this Committee cannot be set up to determine the question whether it is or is not a Money Bill? Will that Bill be automatically regarded as a Money Bill at the end of the twenty-one days, or will there be a constitutional crisis? We deplore constitutional crises; we dislike them very much; we hope they will never arise. It is to prevent the possibility of any such crisis taking place that I am putting this point of view to the President. The President can do several things much more cleverly than members on this side of the House. He can catch rainbows, as Deputy O'Connor told the people of the South City on Tuesday. He has actually succeeded in catching rainbows, but he has not yet caught the strength of the argument with relation to the defects in this Bill. There are defects in it.

This amendment of the Constitution has waited for two years. If it waits for another year or two, or even ten years, it will not make any difference. Before we pass it finally let us take steps to ensure that it will be perfect. We do not want to have a defective Constitution if we can prevent it. The Constitution goodness knows, is defective enough and let us not deliberately make it worse than it is. Here is a Bill asking the Dáil to insert a new Article that is obviously capable of improvement. Let the President withdraw the Bill and ask for the advice of Fianna Fáil before attempting to tinker with the Constitution again and he will never make any more mistakes of this kind. We promise to assist him to make the Constitution, in so far as it is humanly possible, a proper document. This Article has defects in any case, and we will not get another opportunity of convincing the President of that. When, on the Second Reading, we tried to convince the President we did not succeed. When the Bill came up in Committee, we tried to convince the President and we almost succeeded. For twelve months, during which the Bill was hanging up, the President was discovering for himself the defects which we had been trying to point out to him. It took a long time to convince the President that the proposed Article was defective. Unfortunately, this is the last opportunity we shall have of attempting to convince him that the amendment which the Seanad has introduced does not provide against all the possible defects.

If the President would agree to hang up the Bill for another twelve months it is quite possible that in that period he will realise that there is something in what we say, and then the Dáil will have again an opportunity of discussing fresh amendments that may be brought in. I ask the President not to make the Constitution a laughing matter. I would ask him to treat the matter seriously, and certainly this Bill does not do so, and so I ask him to withdraw the Bill in its present form before it is too late.

There was one point in Deputy Lemass's speech that rather surprised me. I understood that he was originally opposed to facilitating the Seanad, or a certain number of members of the Seanad, from contesting the certificate of the Ceann Comhairle as to whether a Bill was a Money Bill or not.

Oh, no. You understood me wrongly.

Then the Deputy was perfectly satisfied to give every facility, as is accorded in this Bill, to members of the Seanad to raise objections to the Ceann Comhairle's certificate.

Oh, no. If I may explain to the President, what I want to have in the Constitution is some method by which, if the Seanad questions the Ceann Comhairle's ruling, the matter can be determined with some show of fairness to the Dáil.

Which in essence means that the Deputy wishes to have the Seanad facilitated in respect to an objection that it has to a Bill in certain circumstances being certified as a Money Bill by the Ceann Comhairle.

May I remind the President that it is conceivable that the Dáil may have an objection.

It was I reminded the Deputy of that. He did not seem to relish that point. I think Deputy MacEntee said that it would be inconceivable that members of the Dáil would object to the determination by the Ceann Comhairle that a Bill was a Money Bill. It may be now that there is a slight division of opinion on the Front Bench opposite, and we will not proceed to resolve it.

We have opinions.

They have two opinions as far as this measure is concerned. If there was one point that Deputies opposite might be expected to hang on to, it would be that this question of determining whether the Bill was or was not a Money Bill should be settled within twenty-one days. Now that is provided for. No conceivable set of circumstances can arrest a decision being arrived at one way or another within twenty-one days. If the Committee does not sit and if it does not function, if any unforeseen event happens, the determination of the Ceann Comhairle is final and conclusive at the end of twenty-one days. The Deputy does not agree to that. The fact is it is so long since the Deputy read the Bill that I think it would probably convenience him if it was left over for a while so that he might read it again, but he might take it from me that that is so. The next point arises as to the misgivings that members of the Seanad had as to the machinery provided in order to deal with disputes as to whether or not a Bill was a Money Bill and to have it determined by the Committee of Privileges. In that respect if the Deputy will look at the proceedings of the Seanad he will find that I took exception to certain of the proposals which they put up, but I facilitated them in interpreting their wishes in putting up either one or other of these two amendments in order to resolve the question, and it is resolved into the Constitution which we have and which is a written Constitution. Whenever any question arises that has regard to a matter in a written Constitution it is easily understandable by persons otherwise perhaps incapable of appreciating the significance of the application. As to whether or not the certification is correct or properly applied, I am not at all saying the Committee of Privileges would be better qualified than the Ceann Comhairle. As a rule any question that would arise in connection with this matter would be a pure question of fact and, although the Seanad might elect three members to voice its views contrary to the view that had been expressed when the decision of the Ceann Comhairle was given upon the Bill, it is quite possible that one or two or the whole three might be satisfied that there was nothing in their contention, but it does not necessarily follow that one set of three members would be on the one side pro and three on the other side against it.

This is a simple, easily understandable and very wise method of having that particular difficulty or dispute or difference of opinion resolved, and I think the tortuous suggestions of Deputies opposite could not be better expressed than that they were at last driven to the view that no better solution of the difficulty that presents itself to them could be found than in these two amendments.

There are certain things that I want to point out. In the first place, we are not concerned with the Constitution at all. It is purely out of consideration for the President that we are raising these points. Whether this section is passed as now proposed or whether it is amended in the manner we suggest does not worry us very much. We will not lose any sleep over it. I would remind the President there were certain sections in the Constitution that we tried to put into operation and found they would not work. The machinery had got jammed or was never designed to work. Perhaps the machinery this sets up is also not designed to work. It has been the experience of this House that the Constitution is capable of amendment and that those who framed the Constitution and have amended it have often made mistakes. I suggest to the President that he is again making a mistake. I read the proceedings in the Seanad and the particular discussion seemed to be as to whether it was seven days after a Bill was sent up by the Dáil to the Seanad or seven days after it was received in the Seanad from the Dáil. I read the Report and I think they discussed that for days and at last decided by a majority vote, but on the important matters I mentioned there was nothing at all. The Seanad did not see the defective nature of the amendment that it was inserting. I again ask the President to realise that we shall have no other opportunity of pointing out to him his error in this matter. This is the last opportunity. It the Bill goes through with this defective clause it is the President's responsibility and not ours.

I am quite ready to shoulder my responsibilities.

Question—"That the Dáil agrees with the Seanad in this amendment"—put and agreed to.

I move: That the Committee agree with the Seanad on amendment 4:

Section 1. The following words added at the end of the section, but within the quotation marks—

"A Committee of Privileges constituted under this Article may act notwithstanding one or more vacancies amongst its members other than the Chairman. In the event of the Chairman of any such Committee dying or becoming incapable of acting as such Chairman, the senior of the other Judges of the Supreme Court able and willing to act shall forthwith become and be the Chairman of such Committee in the place of the Chairman so dying or becoming incapable. The Chairman and one-half of the other members of any such Committee shall constitute a quorum."

Question put and agreed to.
The Dáil went out of Committee.
Reported that the Committee has agreed with all the amendments made in the Seanad.
Question—"That the Dáil agree with the Committee in its report"— put and agreed to.
Ordered: That a Message be sent to the Seanad acquainting them accordingly.