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Dáil Éireann debate -
Tuesday, 7 Dec 1937

Vol. 69 No. 12

Interpretation Bill, 1937—Committee.

Sections 1 and 2 agreed to.
Question proposed: "That Section 3 stand part of the Bill."

I should like the President to explain to us what is the significance of giving legislative force to "Acts of a Parliament sitting in Ireland at any time before the coming into force of the Union with Ireland Acts." Are they redundant words or do they provide for the inclusion of some statutes which are not covered by Acts of the Parliament of the former United Kingdom of Great Britain and Ireland?

The intention is pretty clear, that it takes over any Acts of the old Irish Parliament that would be regarded as having been in force heretofore. There is no provision by which any British Acts would be taken over as referring to this country. The draftsman's department thought that that was so, and, therefore, the view the Deputy has taken is not correct, I am advised.

I recognise that this Bill presents very great difficulties, but in the various disturbed periods of our history, in the 15th and 16th centuries and particularly in the Stuart times, I do not know whether any Stuart Parliament was ever purported to have been held in this country after some other Parliament was established in Great Britain. I do not know whether these words might not bring into our code of law some Acts of Parliament that had no force of law heretofore. That is a matter upon which nobody but the President can give the requisite information.

The intention is quite clear, that it takes over no Acts but those of the old Irish Parliament that would be regarded as having been in force heretofore.

It does not say "Acts of the Parliament," but "Acts of a Parliament."

Because I dare say it is a more general term.

If we can both think of some word that we dare say has various meanings, there is no use asking one another questions.

That is the meaning clearly. It is clear that Acts of the old Irish Parliament which have been regarded as being in force are referred to.

That may be the intention, but I do not know whether in fact it is done or not. Let me remind the President, at this early stage of the Bill, that what we intend to do will not be considered in the courts of law; what we actually do is what the courts of law will take cognisance of. We may have the most pious intentions and yet do the most foolish things. Another point arising is: "the expression ‘statutory instrument' means an instrument made, issued, or granted under a power or authority conferred by statute". I take it that refers to the statutory Orders which Ministers are frequently authorised to make under the legislation of this House. This question arises and I think it might be expedient for the President to define the position now: if a Minister makes a statutory Order under an Act of Parliament, can he alter the terms of that Order in any way other than by making a further statutory Order? A question has arisen where a Minister has made an order, for instance, a new rate of bounty under one of the Export Bounties Acts. He has a perfect right to do that. Subsequently he has desired to vary that rate of bounty in respect of a given period of time, or even of a particular consignment, and he has purported to make that variation by regulation. The question immediately arises: has the Minister the right to alter the terms of the statutory Order by a mere Departmental minute or regulation? In my opinion, he has not, but there seems to be some doubt on the question.

I am afraid I am not the person who has to resolve doubts of that particular type. There are courts there for that express purpose. It is clear that the Minister either has the statutory right for doing things or he has not. If he does anything beyond the power clearly given to him by statute, then there are courts of law to appeal to. I would have to be given a specific instance in order to consider the matter with the same care, even before I would give a lay judgment upon it, that the courts would take before deciding a similar question. There is no use in talking in general terms to me in putting a general proposition of that sort because, if it is put to me, I will have to deal with it in the same way as a court would. I am not the person to be appealed to in that way.

Observe what the President asks us to do. The President says: "I now want you to legislate in the knowledge that you do not know what you are doing and you must not inquire". The President asks us to say that "the expression `statutory instrument' means an instrument made, issued, or granted under a power or authority conferred by statute", but hastens to add: "You must not inquire into the nature of the Order; you must leave it to the courts to decide what it is you have done".

I submit that our duty is not to legislate in a way that we do not understand, and then trust the courts to dig some meaning out of what we have done. If we are going to take cognisance of the existence of statutory orders, we ought to know what statutory orders are. Are they, in fact, the same as statutes of this House or are they not?

They are defined clearly and explicitly in the paragraph referred to. We have it stated here that the word "instrument" means an order, regulation, rule, bye-law, warrant, licence, certificate or other like document. I take it that is the paragraph to which the Deputy is referring?

That is one. There is also the definition in the next paragraph.

Surely the expression "statutory instrument" means, wherever it occurs in this Act or any other Act, an instrument made, issued, or granted under a power or authority granted by statute? How can I more explicitly define in exact terms what a statutory instrument means than the Parliamentary draftsman has defined it?

The President underlines my point.

I understood the Deputy wanted to ask me about certain orders made at present, whether the Minister who made them did so in consequence of powers which he held, or whether he exceeded his powers. I say that if there was a suggestion that a Minister exceeded his powers, then, clearly, that was a matter for the courts to try. There is no question, therefore, as I understood the Deputy, of interpreting something here. He is asking me to decide on something already done. If the Deputy wants a definition of "statutory instrument." I could not devise, if I tried, a better definition than is given here. The person who has drafted the Act, and who is using that expression constantly, has defined it in this way. Does the Deputy suggest that there was a variation?

What is the variation?

If the President will look at the second paragraph he will see that the word "instrument" means an order, regulation, rule, bye-law, warrant, licence, certificate or other like document. The net point is that an instrument means an order. Now, we all know what a statutory order is, but "instrument" also means a rule. If we are, therefore, giving the Minister power to make a statutory order, when he has made that statutory order, can he proceed to amend the statutory order by making a rule?

What has that to do with this Bill?

Because both come within the definition of an "instrument" and are so defined here. I suggest to the President that we should differentiate in our definitions between the meaning attaching to an order, and put that in one category—because it carries the full force of law which attaches to a statute of this House— and the meaning attaching to a regulation or rule. We could put that in another category so as to point out that once an order is made it has the full force of a statute and cannot be altered except by the making of another order, whereas if the Minister only purports to make a rule, then he makes that rule within his own discretion. That is the distinction I would make.

If the Deputy wished to amend this definition, surely there is a way provided by the rules of the House. The obvious way, if the Deputy wished to have the definition changed, would be to put down an amendment so that it could be considered in advance and so that we could see what was suggested in it. The Deputy now suggests an amendment verbally. I do not see the force of the remarks made by the Deputy.

Could the President not turn them over in his mind between this and the Report Stage?

We have now arrived at the Committee Stage of the Bill. If a matter like that were raised on the Second Reading, we could have looked into it. However, this matter has been raised on the Committee Stage, and I suggest that the rules of the House should be followed. If the Deputy wished to have an amendment inserted, he should have put it down. I see no force whatever in his remarks, because I think what the Deputy is driving at is something that has to be dealt with quite differently and in another manner. This Bill is merely giving a definition of words used in legislation. It is a dictionary of terms. If any particular statute comes along, and if the Deputy finds that a particular phrase in that statute gives the Minister power which he does not want the Minister to have, then the Deputy's duty is to try to arrange matters in that way in that Bill. I do not see how the exercise of a Minister's powers could arise under this particular type of Bill. If the Deputy wished to amend this Bill he should have availed of the opportunity to put down an amendment for this stage.

In the circumstances I thought that this was the most prudent way to put it. Perhaps the President will look into the matter.

Sections 3 to 5 inclusive, ordered to stand part of the Bill.

Question proposed: "That Section 6 stand part of the Bill."

This is a highly technical Bill, and on this section I should like if the President would be good enough to advise the House if these sections introduce any material novelty into the existing law of interpretation.

My advice is that they do not. This Bill in effect takes over the 1923 Act for application to a slightly different set of circumstances. Phrases like "The President of the Executive Council" and the meaning of what is intended by phrases like "The Executive Council" are dealt with, and some of these phrases are wiped out. There has been occasion taken also, as I explained on the Second Reading, to bring together and to arrange in a more readily accessible form some of the terms which seem to be scattered right throughout the 1923 Act. My advice is that there is nothing fundamentally new in principle introduced by the Act at all.

Sections 6 to 10, inclusive, ordered to stand part of the Bill.

Question proposed: "That Section 11 stand part of the Bill."

With regard to this section, do the definitions lettered (a) to (i) purport in any case to give statutory effect to conclusions that have been arrived at by judicial decisions?

As I explained on Second Reading, the phrases and definitions that have been used in the Bill are the result of experience in our law Department and in the draftsman's office and these have been based on well-known decisions previously arrived at in the courts.

With regard to paragraph (d), I should like to ask why it is proposed to adopt Greenwich time rather than Dublin time. I think we ought to try to get back to Dublin time rather than take Greenwich time. It is a great inconvenience to use Greenwich time and I do not see why it should be necessary to introduce a special Act to get back to Dublin time.

That would be a matter for another Bill rather than this. This is a question of generalised time and Greenwich time has been accepted as general Western European time. It has been found generally more convenient to take that standard. It is not merely an English standard; it is adopted as Western European time.

It is very inconvenient.

It will be noticed that there is power to vary it at any particular time. If the legislature wishes to bring in an Act, changing in any particular manner the time point of reference, we can do so. Taking the Act in general, it is more convenient; this has been the practice up to the present, and it is more convenient to continue it.

In regard to those definitions, Sir, a point which I should like to have cleared for me is this: Does any of those definitions incorporate a finding by one of our courts? If it does, I think the attention of the House should be specifically directed to it. This situation may arise: A point of definition may turn up in the course of litigation in the High Court, and that net point may be decided by a High Court judge in that particular case. The litigants there engaged may elect to accept that decision without further appeal. It may be the view of many that, if the case had gone on to the Supreme Court, in respect of that particular definition the Supreme Court would not have agreed with the court below. The legal profession may have been acting on that assumption for some time, and, the decision of the High Court notwithstanding, they may continue to act on that assumption, believing that, if the matter were carried to the Supreme Court, the High Court would be reversed. Then the legislature steps in and, accepting the High Court's definition, gives it statutory effect, without having consulted the legal profession as to the implications that may flow therefrom. I do not know if any of those definitions does fall into that category, but I should be glad to know from the President if any of them is based on a finding of the High Court, and if so which of them is so based and on what finding are they founded?

Does not the Deputy clearly realise that this Act is not retrospective; that this has reference to Acts of the Oireachtas, and that the only Acts which come into it are those that are being passed now or those that will be passed? Therefore, whatever definitions we create here would not affect the interpretation of existing statutes, and would not prejudice any rights which a person may appear to have under them. We are, in fact, making it quite clear that the 1923 Interpretation Act is to continue as far as those statutes up to the present time are concerned. All I can see that can be made out of this question of definition of High Court rulings would be this: If, for instance, we were giving a definition which would seem to be contrary to what was held generally, it might be said that it was not wise to give definitions which were contrary to decisions of the courts. Where the definitions are in line with the decisions given in court, I do not think any question can be raised as to their propriety. As far as the effect of this is concerned, it is not a retrospective Act. It has reference to the future.

Sections 11 to 22, inclusive, put and agreed to.
18.—The expression "Minister of State" means a member of the Government.

I move amendment No. 1:—

In paragraph 18, page 10, line 56, after the word "Government" to add the words "having charge of a Department of State."

As I think I explained on the Second Reading, the purpose is that the word "Minister" will in future be applied to a Minister with portfolio. A Minister of the Government may be or may not necessarily be administering a Department. This amendment is to make clear what the word "Minister" is to mean.

What will a Minister who is not administering a Department be called?

He would be called a Minister without portfolio, I suppose.

And not a Minister of State?

No. He would be a member of the Government. We would probably not use the words "Minister without portfolio." He would be a Minister of the Government, not administering a Department of State.

There is no statutory definition for him.

We do not need it.

You never could tell.

Well, if we should need it, we can get it.

Amendment agreed.
Schedule, as amended, agreed.
Question proposed: "That the title stand part of the Bill."

On the title, I want to raise this question specifically, as this is perhaps one of the only occasions we may get for so raising it. I want the President to tell the House shortly how can the people enact a constitution? As I understand it, the philosophy of Government which obtains in this country is that the Government governs by divine authority; that the authority to govern comes to the Government from God; that the people have a right to select their Government, and that it is then the duty of that Government to rule. As I understand it, the majority qua majority have no right to legislate at all—never had and never will have. I have never heard the President or any responsible member of the Government defend the thesis that they have the right to legislate, and I should like the President to tell us now on what theory or on what philosophy does he base the contention that the Irish people enacted the Constitution for this country, and does he contend that a Constitution so evolved has the force of law? If he does, would he tell us where it gets the force of law, and by what authority does the majority purport to give it the force of law.

We had all this with Deputy Fitzgerald on a previous occasion when we were dealing with the Constitution in the Dáil. I do not think that this is the proper place— on the Title of a Bill—to raise this whole question and go into a discussion of it. Even the scholastic philosophers are not quite of one mind on certain parts of the working out of the philosophy, and it is not a question on which at the moment I am prepared to give an ex-cathedra pronouncement. That the people can give to themselves a constitution is clear enough to me, and the people are quite satisfied that they can. In our system they are the ultimate judges, as far as the Constitution and as far as the selection of the people who are to be put into the offices which are designed by the Constitution, are concerned. When we say here that this Constitution has been enacted by the people, we say that the ultimate sovereign authority in this country— all the time, of course, understanding that any powers that are exercised and any authority it has are from God— is the people. They have given to themselves this Constitution and set up the scheme by which they are going to be governed, and when we say that this Constitution is being enacted by the people, we say that the people have had this scheme before them, they have considered it and approved of it and there is no human source deeper that we can go to.

I want to be quite clear on this——

The Chair also would like to be clear on the issue. In the Title of this Bill occur the words "lately enacted by the people." These words are in the Constitution : "The people do hereby adopt and enact this Constitution." The Deputy had ample opportunity, at the appropriate time for raising the question—as indeed it was raised—when the Constitution was being debated in the Dáil. If that matter were allowed to be raised now, it would be very difficult to set limits to such a discussion; that is a discussion on the position of the Constitution. It is not relevant to this Interpretation Bill, which purports to implement certain portions of that Constitution.

I submit, with all respect, that the Constitution was before the House and it went through a rather strange and unprecedented procedure, the President loudly protesting all the time that we were not enacting the Constitution when we had it before Dáil Éireann. The Chair will remember that, I am sure. It was submitted to a referendum and this is the first time I had an opportunity of raising the question whether the people enacted anything at all and, if I may say so with respect, where better than on the Interpretation Bill can one raise the net question of the interpretation of the word "enacted"? If the President adheres to the view that the majority of our people are enacting anything, I say he is wrong. They cannot.

The majority of this House, with the authority they have to represent the people——

I am putting a specific case. This is not a Constitution enacted by the majority of the people's representatives assembled in Parliament. That is not what the Bill sets out. It says "the Constitution of Ireland lately enacted by the people". I say that so far as I am aware—and I am anxious for the President to correct me if I am wrong—the people of this country have no power to enact anything. I want the President to give me his highly valuable and, doubtless, well-informed opinion that, having looked into this matter carefully and with the best advice, he is advised that the majority of the people may enact law. That is the net question and I am anxious for information. Doubtless, the President must have consulted reputable authorities before he sponsored the theory that the people, by popular vote, could enact legislation. I submit that no such power is claimed by our people. They claim the power to elect representatives, and these representatives, acting on the authority they get from God, have the right to govern the country. At fixed intervals the people can change their governments, and they insist on their right to do so. I expect the President to tell us that, on the best opinion he can command, he rejects my view and asserts his own, that the majority of the people have the right to enact law.

The Deputy has just put the question himself, that what he is raising is whether the people have power to enact anything. I submit that is not a question to be decided on the Title of a Bill to which no amendment has been submitted. I do not know if this House is competent to decide it, to question the whole basis of the Constitution, which the Deputy would be doing. I submit it is not in order to raise that now and it would not be in order for the President to reply, and the Chair will not hear the President.

Mr. Morrissey

May I ask if it will be in order for the House to vote against it?

I should like to know if the President will attempt a definition of "the people", or will he accept "the people" as being the persons or members of the community who happen to be on an electoral register at a particular point of time?

Now, we are not discussing the question of the source of authority at the moment. We are discussing the question of an Interpretation Bill. The Deputy seems to think you must have Parliaments in order to make laws. I can imagine a small community operating directly and making for itself the laws by which it shall be governed.

Is that the President's theory of government?

I can imagine a small community, instead of having representative institutions and governing itself by these representative institutions, governing itself directly and making its laws by direct vote instead of through representatives. We had this whole question of the origin of authority, and so on, and the foundations of government, when we were considering the Constitution. I would like to know from the Deputy what he proposes to put in by way of amendment to this Bill.

I submit to the Chair, by way of a point of order, that if we are entitled to vote against this Title, we are also entitled to discuss its contents. I am simply looking for information.

The Deputy surely did not misunderstand the Chair when the Chair said that the theory of government and the right of the people to legislate or enact could not be raised now. It was clearly stated that the Chair would not hear the President or any Deputy on that matter.

Are we entitled to ask the meaning of the Title? I think we must be entitled to ask the meaning of the Title if we are asked by our votes to adopt the Title.

That is merely another way of questioning the people's right to enact this Constitution.

I respectfully submit that I do not understand your ruling, that a circumstance can arise in which I am required to vote for something which I do not understand and without being permitted to ask an explanation of the responsible Minister as to what the meaning of the text is. It would tend to reduce parliamentary procedure to a farce if Deputies were restricted in that fashion.

Is not the Deputy again questioning the Chair's ruling?

No, not at all.

It seems to me he is, and very definitely. The Title of the Bill reads

An Act to make, for the purpose of the Constitution of Ireland lately enacted by the people, divers provisions...

Instead of questioning the interpretation of the Acts and definitions set out in this Bill, the Deputy is proceeding to discuss the words "lately enacted by the people". That is quite a different thing, and, goes down to the fundamental questions on the Constitution.

I have not questioned them.

As to whether the people have power to enact a Constitution, and what are correct theories of government—I rule that those questions are irrelevant.

Subject to the rules of order, I want to ask the President what is the meaning of the word "enacted" in this Bill?

Given the force of fundamental law; given by the people the force of law.

How is the force of law given to any instrument by the people?

In the same way by the people as the force of law is given by the majority here.

Is there any Constitution other than the Constitution lately enacted? Would it not be sufficient to refer simply to "the Constitution," and not be asking this House to deal with these matters regarded as fundamental in the Title to a Bill?

There are two Constitutions, the existing one and the one that is referred to here, and it is obviously wise and proper to distinguish between them.

Surely that is not correct? The Constitution of Saorstát Eireann is one thing, and the Constitution of Eire is another.

We want to have no doubt whatever about it.

My submission is that the President wants to draw into the Title of this Bill a highly controversial statement of fact, and then to take refuge behind the Standing Orders; and, having required the House in the Title of the Bill to accept a highly controversial contention, he then declines to discuss it, because the Standing Orders will not allow it.

No amendment has been moved to the Title.

An amendment would not have been received. According to your statement, you, Sir, would have ruled it out of order.

The Deputy has not submitted any amendment.

Judging by the remarks of the Chair regarding my desire to raise the general question, it is quite clear that such an amendment would have been ruled out of order. One of the most important features of the new Constitution was that it described the country as "Ireland" as distinguished from "Saorsát Eireann." The President goes on to say that the words "lately enacted by the people" are put in to make the matter clear. They are not. They are put in to give Parliamentary approval to a pet theory of the President. The President will not define this theory, nor will he tell us whether he has sound authority for proclaiming this principle, even if he is not prepared to go into the complex philosophy of the matter.

I have very sound authority.

Will the President give us his authority?

I am not going to state it.

The President's view of what constitutes "sound authority" and my view may differ very widely.

In a totalitarian State, the reply, "Ah, well!" is quite sufficient, but, unfortunately for the President, this is not a totalitarian State. "Ah, well!" is not recognised as an argument in a democratic Parliament. In the Reichstag, "Ah, well!" would be received as an argument under severe penalties. We have not got so far here yet.

You tried to get there in 1934.

You tried that.

I submit that even so simple a man as Deputy Allen is, should recognise that it is a dangerous precedent to accept even from his own leader the doctrine that it is an adequate answer to an argument to say in this House "Ah, well."

There was no argument.

The day may come when Deputy Allen, sitting on this side of the House and exercising his right to put a question, will be met with the reply from the then Government "Ah, well." By that time, we may have developed to a stage when "Ah, well" may not only mean "I will not answer the argument" but may also imply high treason.

[Interruption by Deputy Meaney.]

Is it relevant for a Deputy to describe Deputy Dillon as "the coming Minister for Foolish Affairs," as I have heard a Deputy describe him just now? I think it is a most uncalled for remark.

The Chair did not hear the interruption.

We must allow new arrivals very wide discretion. Some of them think they are at home at the board of health.

You should have sense by this time.

"Ah, well" is not a sufficient answer to an argument and it may in future be significant of more than a refusal to give information. It may contain a suggestion of treason against a Deputy for having put a question. I want to ask the President what is the authority he has quoted to the House for the proposition that the words, "lately enacted by the people", truly represent a correct philosophy of government.

Ordinary commonsense.

The Chair will not hear either the President or the Deputy on the "correct philosophy of government."

The President quotes an authority——

The Chair will hear no more from the Deputy on the "true philosophy of government."

The Chair will hear no more from the President on it at any rate.

Title put and declared carried.
Bill reported without amendment.

When is it proposed to take the Report Stage?

I should like to get the Report Stage now if there is no objection.

I raised a most important point on Section 2 which the President was to look into.

The Deputy has not raised anything that, I think, requires looking into. I do not think that the point he has raised could be dealt with on this Bill. That is as to the definition of the word "instrument".

Is the President in a violent hurry with this Bill?

I am honestly in a hurry to get through because there is a good deal of other work to be done.

If the President really wants the Bill now, he can have it. Otherwise, he can take it on Wednesday.

Mr. Walsh

He will have it in any event.

Let us be perfectly clear on this question. If there is any more "guff" from the other side, he will not have it. If the President really wants the Bill now, the Opposition will gladly co-operate but they will not give the Bill in reply to insolence such as, I think, would never have proceeded from the President himself. The President will have to "regulate" the boys behind if he wants consideration.

Agreed to take Report Stage now.

Bill received for final consideration and passed.