Dáil Éireann debate -
Wednesday, 27 Feb 1946

Vol. 99 No. 13

Private Deputies' Business. - Legislation by Order—Motion.

Mr. Anthony

I move the motion standing in my name and that of Deputy Alfred Byrne:—

That a Select Committee of the Dáil be appointed to consider and report upon the extent to which the growing practice of legislation by Order, without the prior approval of the Oireachtas, is inconsistent with the powers which the Oireachtas should exercise under the principle of democratic government as enshrined in the Constitution.

Now that the major problems arising out of the war have eased considerably, it is about time the situation should be reviewed and examined, with a view to ending a form of bureaucracy which, if allowed to continue, will negative any rights this Assembly can claim under the Constitution. Not only that, but it will negative many Acts passed by Dáil Eireann itself. I have a feeling that the Taoiseach should be the last person in this community or in this House to resist a motion which is put down in good faith to implement all that is enshrined in our Constitution.

We have the position created now that Orders are issued from time to time tending to negative Acts passed by this Dáil. The casual reader of the newspapers, not to mention the student of politics or of political economy, must have observed this growing practice, which began here at the time of the emergency and has been continued ever since. If legislation by Order continues at its present rate, I envisage that there would be no necessity for this Dáil to meet at all. I had a good deal of data to submit to the House, but I was called on quite unawares this morning and told this motion was to be moved to-night. I take that as part of the fortunes of war and am quite satisfied that everything is in order, but I was taken off my guard to some extent.

There is a story which will illustrate my point, the story of a very high Treasury official and a Chancellor of the Exchequer in a neighbouring Parliament. After a very busy session, this high official is reported to have said to his Minister: "Why all this palaver? What is the good of the House of Commons and how perfectly useless is the House of Lords? Why should the work of the expert be always at the mercy of the ignorant amateur? Why should people be allowed to govern themselves, when it is manifestly so much better for them to be governed by those who know how to govern?" Those who know how to govern, in the case mentioned, were the civil servants, similar to the bureaucracy that has grown up in our own country.

This story is told, by the way, by a former Chancellor, a man very high in the State in Great Britain, in one of his books. To continue it, the official asks: "Could not this country be governed by the Civil Service?""Undoubtedly it could," replied the Chancellor of the Exchequer, "and I am quite sure that you and your colleagues would govern the country very well; but let me tell you this, my young friend, at the end of six months of it there would not be enough lamp-posts in Whitehall to go round". I am sure none of us would like to see the Taoiseach or any of his Ministers hanging from lamp-posts. Much as we may differ with them on many points, we would not like to see them meet that fate. That little story illustrates what is happening in this country—Government by Order, Orders A.B., Orders C.D., and so on. In my view, it is the negation of democratic government and I am hopeful that the Government may find some way out of the difficulty. Without doubt, this has been the cause of a good deal of uneasiness in all enlightened communities that I know of in our own country. The story I have told has its humorous side, but I have the feeling that, unless steps are taken, and taken very soon, to end this undesirable and undemocratic development, people will begin to lose confidence, not alone in the institutions of the State but in themselves.

I have heard members in this Assembly say they were proud of being politicians. In this country, because of the attitude of certain people the politician was looked upon with suspicion, as if he should be in the dock instead of in the Dáil. Now, I am proud of being a politician, very proud of it, and I think that if one of the steps I am suggesting were taken, it would tend to revive a decent spirit in the country. People are beginning to say, just as I quoted a civil servant a moment ago, "why all this palaver?"

It is sometimes asked "What is the use of the Dáil, because the Fianna Fáil Party as a government will steam-roll anything through?" I have always felt, and I think the Taoiseach will agree with me—I heard him say something similar himself—that he welcomed a decent and healthy Opposition. I am sure I translated him perfectly and I may say I admired his sentiments on those occasions—at least half a dozen occasions.

The Taoiseach might well ask, how do I propose that this thing should be done? I may say I have carefully avoided the use of the word "emergency". I am talking of Orders in general. I throw out a suggestion, which may be amplified by some other speakers, added to or amended, but so long as I keep along the line of the principle of democracy and democratic government, I will be quite satisfied. I have a feeling that it would be advisable if, before issuing these Orders, they were submitted to a body such as the Committee on Procedure and Privileges. If an objection can be made, or is made, to that body being consulted on the grounds that it is difficult to get the members together, that perhaps an Order would require to be issued instanter, then I would suggest as an alternative that you could have a local committee consisting of members of all Parties resident within a couple of miles radius of Dublin city.

I am sure nobody in Cork would object to that and nobody in Tipperary or Donegal would object to it, because I believe there is a necessity for referring such matters to a committee. No matter what confidence we might have in the probity of the Taoiseach or his Ministers, there is still, in my view, such a necessity, especially where Orders are issued with little or no notice to the community in general. There is an urgent necessity for having the views of other persons in the community besides the Taoiseach or his officials.

There is a growing feeling that too much is done in this country by way of Orders A and B and Orders C and D, and so on. I submit this motion in the hope that the Taoiseach or his Ministers may have some alternative proposals to put up, or they may want to amend or amplify anything I have said. When Deputy Byrne and I put down this motion, I had no other object in view beyond this: to preserve the inherent rights that we are supposed to possess under the Constitution and, if we flout or in any way ignore those rights, and are steam-rolled into a position where these rights are denied us, it would have a very bad effect up and down the country.

I stand four-square for the maintenance of law and order, but you have people outside who have done their very best to undermine the institutions of this State and when these people tell you that most of your work is done in Dublin by Order this and Order that, I have at all times refuted that allegation, though sometimes, by the way, I felt that I was doing so with my tongue in my cheek, as it were. I had the feeling on these occasions that a time of emergency did exist, and there might be cogent reasons present to some extent now, but not to the same extent, surely.

As to Orders generally—I am not talking of Emergency Orders in particular, but of any kind of Order issued in the way these Orders have been issued, issued overnight without any notice being given to the House which, after all, should have some say and some control over legislation—every Order issued has the power of an Act of Parliament. Every Order has behind it the full force that can be given it by a Government and its instruments and, because of that, and because you are taking the power which we have enshrined in our Constitution out of the hands of the elected representatives of the people, I and Deputy Byrne have put down this motion in the hope that it will be accepted in the spirit in which it has been submitted; that is to say, in order to preserve the spirit and the words of the Constitution and in order to discourage many of those people who tend to lessen and to deprecate the efforts of a constitutional Government.

We have a free Government here, elected by a free people with, in so far as it relates to the electorate, undoubtedly one of the freest electorates in the world. Because of all that, I take a certain pride in the institutions of the State. Whether people be in the Government or are budding successors, it is immaterial to me. All are elected by the people of the country and I owe them the allegiance that is due to them. For reasons which, I think, should appeal to the Taoiseach, as they should appeal to any Ministers with a sense of responsibility to the nation, I suggest that he and his Ministers should carefully examine the position, which I and others want to see rectified and which, in very few words, is outlined in the motion. I confidently put the motion before the House for adoption.

Mr. Byrne

I formally second the motion.

Mr. Costello

I find myself pretty well in complete agreement, not merely with the terms of this motion, or rather with the principle which is the foundation of the motion, but also with the reasons advanced by Deputy Anthony in support of his motion. I thought I detected a note of apology in Deputy Anthony's speech when he was moving this motion. He stated that he was putting it down in the belief that his action in so doing was intended to ensure and maintain the rights of Parliamentary institutions and the principle of responsible government, and he hoped that the motion would be accepted in the spirit in which he moved it.

No apology is needed for a motion of this kind. This motion embodies one of the most fundamental principles that any parliament in present conditions could debate and consider. There has been an undoubted tendency, not merely in this Parliament, but in other parliaments where responsible government obtains, to derogate from the powers of the representatives of the people and shift the centre of gravity of the constitutional structure away from parliamentary institutions to that of the executive. We have more or less adopted in the Constitutions that we have had in this country, both the Constitution of 1922 and the subsequent Constitution under which this State now functions, the principle of responsible government and democratic institutions. That principle means that the Government of the day is responsible to the legislature nominated by the people, but in practice nothing but lip-service is given to the principles of democratic government which are, to use the words in this motion, enshrined in the Constitution. For one day every four or five years, the people of this country who have votes are supposed to be endowed with all political wisdom. On the day when a general election is held the people make their choice. It is stated that the people are the masters and that whatever they do must be right. Once the close of the poll comes, and Deputies are elected to this House, the people as masters of this House or as masters of administrative legislation, cease to be a reality.

During the first 12 years in the history of this State, according to a book compiled by two very learned authors, about 3,000 Orders such as are referred to in the motion were made by the Government or by Ministers, in accordance with provisions contained in statutes of the Oireachtas. From 1922 to 1933 over 3,000 statutory Orders were made. That number did not include a vast number of other Orders of an administrative character, which, possibly, would not come within the definition or description of statutory rules or statutory Orders. It would be no exaggeration to say that, from the beginning of 1934 until the end of 1945, leaving aside the multiplicity of Orders passed under the Emergency Powers Acts, at least double the number passed between 1922 and December, 1933, were enacted in accordance with statutory provisions of this House. This problem has faced the British Legislature. It is a problem that has been commented upon and a practice that has been adversely criticised by some of the highest judicial personages in the courts in England—in the Court of Appeal in the House of Lords.

I want it to be quite clear that there must be some statutory rules or some provisions by which details of legislation must be worked out by Departments. The question is where is the line to be drawn and what is the control to be? That problem faces us here in an increasing and very urgent form. I am glad to say that its urgency has been recognised, at last, by people outside. We have been drawing attention to this tendency for years and were regarded as speaking merely as politicians. The Leader of the Opposition, Deputy Mulcahy, drew attention to it in his speech at the Fine Gael Ard Fheis a short time ago. It is noteworthy that, following upon that speech, the President of the Federation of Irish Industries stated in, perhaps, more picturesque language, the very same thing as Deputy Mulcahy stated at the Ard Fheis, and to-day, I noticed by the evening papers, the President of the Chamber of Commerce has again drawn attention to the situation. One of the methods by which democratic rule can be overthrown is the method by which a system is brought into operation without the people being aware of it. It is, I am glad to say, abundantly apparent now that the people are beginning to be aware of the methods of the last few years by which their rights and liberties are being threatened by a system of rules and Orders. At present, a man's property may be taken away lawfully under Orders made under statutes of this House without any appeal to the courts. A man's liberty may be taken away from him by Ministerial Order without any appeal to the courts.

Side by side with this tendency to encroach upon the functions of the Legislature is the tendency to encroach upon, and to take away, the functions of the judiciary. In legislation of this House provision has been made again and again—repeated to an increasing degree—whereby Ministers and the Government may make Orders dealing with a vast variety of matters which may affect the liberty, the rights and the property of individuals, while no appeal to the courts is permitted from any such Orders.

We must have regard, in considering a motion of this kind, not merely to what Deputy Anthony mentioned, the encroachment upon legislative authority and the functions of this House, but, as a necessary corollary, encroachment on the functions of the judiciary. Both these encroachments are symptomatic of the tendency towards despotism and despotic control. They are the usual methods by which the Legislature is deprived of its power. The balance of power between the Executive and the judiciary is taken away and vested in the Executive. These are the usual methods adopted. Deputy Anthony, in his speech, referred to bureaucracy. I think it necessary to issue a note of warning on the use of the word "bureaucracy". The tendency is to blame civil servants. The tendency is to say that civil servants, for motives of their own, are persuading the Government and Ministers to sponsor legislation in this House which would vest in Government Departments and, in particular, in civil servants unrestricted and unfettered powers; that that is done by civil servants or by particular individuals, in order that power which should be vested either in the Legislature, in the Executive or in the judiciary should in reality be vested in them. It is a mistake to say that the tendency which I speak against is a tendency which has been fathered by civil servants. It is Government policy, and the Government must take responsibility for that policy. It is Government policy that brings about legislation which vests in civil servants the dictatorial powers of which we complain and to which the public are, at last, beginning to awake. I protest against the effort to blame civil servants. I want to put the responsibility where it belongs. It belongs to the Government and the Fianna Fáil Party. It is not a tendency limited to the present Government, or the Party from which it is formed. It is the usual method of despotism to control power, to filch it from the people and the judiciary, and to put it in possession of the Executive. With the permission of the Chair, I shall refer to a passage on page 298 of a recent book which meets my point. It is:

"It is not, as some suppose, an overweening Executive which establishes despotism; it is the philosophy of despotism which forges executive power into a weapon for the attainment of its ends. ‘And such an instrument I was to use,' quoth the tyrant. It is not exactly the kind of philosophy which, aided by the temporary exigencies of war, to-day defends and encourages wholesale extensions of executive might, at whatever cost to the authority of the executive and the judiciary, on the pretext that this is the only way to that ‘efficient government' which, we are told, is the highest social good. It is a philosophy which is not peculiar to any political party. It comes both from the Right and the Left."

The Taoiseach

What is the name of the book?

Mr. Costello

It is from a recent book by C.K. Allen entitled Law and Order.

I repeat:

"It is not, as some suppose, an overweening Executive which establishes despotism; it is the philosophy of despotism which forges executive power into a weapon for the attainment of its ends."

The philosophy of despotism—the policy of despotism—the policy which brings about the situation in which we find ourselves to-day where this country is governed, not by the laws passed by this House, but really by the Orders made by Government Departments and Ministers. It will, of course, be stated that the source and authority of those Orders are the Acts of the Oireachtas. Of course, they are. It is that which gives them the façade of democratic appearance, and in these Acts of the Oireachtas authorising Ministers or the Government to make these statutory Orders there is that provision with which we are all familiar, that the Regulation shall be laid upon the Table of the House and, if within 21 days from the making of the Orders the Dáil or the Seanad, or both, pass a resolution annulling those Orders or Regulations, they have no effect. Again, that is merely a facade, a pretence — a pretence that democracy and the rights of the Legislature are being preserved. Such a provision is purely illusory. In the first place, that provision which has now become standard makes no provision for amendment of those Regulations. They must be taken as a whole or not at all. There is a very limited period of time within which those regulations can be examined by this House and annulled. There is no provision that Government time is to be given for any such Orders.

The Taoiseach

Has it ever been denied?

Mr. Costello

There is no provision for Government time being given. In effect and in practice it would not be possible for this Legislature to examine all the details of all the Orders that have been made in the last 20 or 30 years, leaving aside the last eight or nine years during which the present Government was in power. The Taoiseach asks: Has it ever been denied? I do not know whether it has or not, but I do know this: that the time has expired for the hearing of such a motion in reference to such an Order. Within the last two years a motion was down on the Paper annulling a certain Order and the time expired before that motion was heard.

The Taoiseach

What Order?

Mr. Costello

The Taoiseach can find out from the records what it is.

General Mulcahy

It was an Order extending the time in respect of which a case could be brought before the District Court, I think.

The Taoiseach

I should like to know the number of the Order.

General Mulcahy

It will be easily got.

Mr. Costello

The Taoiseach can take it that what I state is accurate. What I want to point out is that under the present system it would not be possible for any ordinary Deputy, it would not be possible even for a Party, with the usual Party organisation that is at the disposal of a Party in opposition, to have all these Orders properly examined with a view to seeing whether they encroach upon the rights or liberty of the people or their property. It would not be possible to have these Orders examined in the 21 days and it would not be possible to have them properly debated in this House, even if the Government did, out of their bounty, give time from Government business to discuss these measures. It is merely because there are so few of these Orders brought before this House, for the reasons I have stated, that it is possible from time to time for the Government, out of their bounty—again I emphasise—to give such Government time as will enable those Orders to be considered. It is only practicable for any ordinary Deputy to take some of the more fundamental principles embodied in an Order which he happens to see and bring it to the attention of the House and through the House to the country. There are thousands of Orders that have been made. Many of them are impossible to get; some of them are not even printed.

The Taoiseach

I should like examples again.

Mr. Costello

On one occasion in the last few years I was myself engaged professionally in a matter arising out of the construction of an Emergency Powers Order. I forget the precise time but within a very short time another case on the same point was submitted to me. It was by the sheerest accident that I was able to get a typewritten copy of the Order amending the Order on which I originally advised and it changed the fundamental Order so as to change the opinion I had given.

The Taoiseach

Would the Deputy give me an example?

Mr. Costello

I am giving the Taoiseach the example. He has the whole force of the Civil Service behind him to find the particular Order.

The Taoiseach

I want to know if the Deputy is in fact telling us the truth.

Dr. O'Higgins

The Taoiseach has no right to make that insinuation.

Mr. D. Morrissey

Shame.

The Taoiseach

On a point of order——

An Leas-Cheann Comhairle

The Taoiseach is in order in asking is it true.

Mr. Costello

The Taoiseach is entitled to ask me if I am telling the truth?

The Taoiseach

No.

Mr. Costello

I say to the Taoiseach I never stood in this House without telling the truth, and I want, Sir, to ask your protection, even from the Taoiseach, to allow me to finish my speech without interruption even from the Taoiseach.

The Taoiseach

I want to raise a point of explanation and I have the right under Standing Orders to do it.

Mr. D. Morrissey

Does the Taoiseach wish to withdraw?

The Taoiseach

I do not wish to withdraw because my statement was a statement if in fact——

General Mulcahy

If the Taoiseach is not rising to withdraw, will he let Deputy Costello finish his speech and give any explanation he wants to give afterwards?

The Taoiseach

No. I have a right under Standing Orders to make a point of personal explanation. My statement was if the Deputy in fact is giving the truth. I have to find out if in fact the statement is true?

General Mulcahy

Is that an explanation?

The Taoiseach

It is a statement of what I said, and it is right.

Dr. O'Higgins

I ask the Chair, if in fact the Taoiseach is giving a true statement to this House of his desire and intention in standing up, was that interruption of his in order in the middle of the Deputy's speech?

An Leas-Cheann Comhairle

The Taoiseach was in order, I believe, in asking was the matter in fact true.

The Taoiseach

So that I might examine it.

Mr. Costello

The Leas-Cheann Comhairle has inadvertently misquoted the Taoiseach. The Taoiseach asked was he entitled to know that the Deputy was telling the truth.

The Taoiseach

I did not.

Deputies

You did.

The Taoiseach

Let us get the record, and let us have it immediately.

Mr. Costello

Private Members' time is restricted on a motion of this kind to a very short space. Private Deputies have only a very restricted time to speak. This is a very important motion. It is a motion of fundamental importance to the people of this country because we do assert—and we will prove it to the people, and we hope to get a mandate from them very soon to alter the Government policy on this—that they have shifted the balance of power from the Legislature to the Executive, and that is the way of despotism the world over.

It requires no examples from me to bring that to the recognition of the House or of the people. It is not what I say. It will be stated, as it was stated some few years ago, when we were pointing out the road on which the Government was going, that we were speaking merely as politicians in opposition and that we were not being constructive. Our efforts have at last been rewarded. It cannot be said that the President of the Federation of Irish Industries is a supporter of the Fine Gael Party. Anything I have said here to-night is mild compared with what that gentleman said—his comments upon the methods of Government in connection with Orders. The mild speech made by Mr. Brock, the President of the Chamber of Commerce, to-day protesting against this thing is even stronger than what I have endeavoured to say to-night.

I was, when I was interrupted, pointing out that the provision in the statutes purporting to give control to this Legislature of the Government's actions in reference to Ministerial Orders is merely illusory. It is no safeguard at all and, in any event, under what the Taoiseach himself asked the people for at the last election and what he got from them—a strong Government, an over-all majority—what good is it? The Government Party majority is used on every occasion when an effort has been made to protest against the infringements in the spirit, if not the letter, of the Constitution and principles which we are supposed to enjoy, by some of these statutory rules and Orders. Party majority has been used to crush any such opposition and to stifle effective criticism. That is the way of despots. It is always done in that way, for the very good reason that was given at the last general election by the Taoiseach when he asked the people to give him an over-all majority so that he might have a strong Government. "Government must be strong or it is naught! " Again I quote from that learned author. "Government must be efficient or it is a sham! Government must get things done or it is dead!"

One of the least violent and the most intelligent of European dictators declares: "No good seems to me to be as important for a nation as the stability of an efficient Government." The basis of all despotic government is that demand made by the Taoiseach at the last election for an over-all majority and a strong Government in order that that over-all majority and strong Government might stifle opposition in the deliberative Assembly of the nation.

So far as I can recollect, there has been only one instance in which any constructive proposal was put up by me, certainly—and I am perhaps under the illusion that I put up many—which has been even considered by the Government, and that was within the last few weeks, when the Minister for Lands did what should be done in a deliberative assembly, recognised that the Opposition had adopted a proper rôle, that they were performing the functions which they were sent by the people whom they represented to fulfil, namely, to oppose where opposition is necessary in principle, and to support anything the Government bring forward which they believe to be good. We believe that the Land Bill recently introduced had embodied in it a proper principle, and we supported it. But we strongly objected to the machinery embodied in that Bill to give practical effect to the principle we supported. The Minister for Lands recognised that situation and called an all-Party conference to consider the matter. That was so exceptional as to call for editorial comment. It is exceptional in this House. It underlines and emphasises the point which I wish to make.

We are fast becoming in this Dáil, not a deliberative Assembly, but a machine merely for registering Government decisions. These decisions are registered in several ways. They are registered in the Bills which we are asked to pass in this House. They are registered, and they become law through the machinery of the over-all Party majority and of the strong Government that the Taoiseach asked for and got at the last election. They are registered by means of these Government Orders and decrees, which find their source and authority in the legislation passed through this House by the strong Government and the over-all majority. They are registered by means of the policy of the Government which requires a strong Government and an over-all majority, not merely in this House, but in the Seanad.

The principle on which the Seanad was reconstructed was that it should be a reflex of whatever Party happens to have for the time being a majority in this House. So that you have the whole thing coming full circle. Government policy requires a strong Government, requires an over-all majority, so that the decrees of the Government may be given effect to irrespective of the Opposition, and may be given effect to in the Seanad also by means of a majority in the Seanad.

We may be told that the source of these Orders is the will of the people as expressed in this Assembly. The will of the people has to be considered not merely in relation to that section of the people which is represented by the over-all majority in this House, but also by the views put forward by the Opposition Deputies who represent a substantial section of the community. If we are to be a deliberative Assembly, there should be less talk of a strong Government and an over-all majority.

During the last election I endeavoured, in the speeches I made in the course of the campaign, to bring home to the people that this demand for a strong Government was, in effect, a demand for a strong dictatorship. Of course, I was talking as a politician. It is becoming apparent now that I was talking the truth, and the truth can be found by a perusal—if you can find them—of the thousands of Orders issued in the last few years. I am talking as a politician to-night, it will be said. But I am talking, whether I am telling the truth or not, in the words of the Taoiseach, from what is my fundamental political faith for which I stand, whether I am in Opposition or not. Principles, whether enshrined in the Constitution or legislation, so that they will not be mere pretence or pious aspirations, such as we find in one part of the Constitution, should find their way into practical effect and be the guiding force of Government policy.

As the culmination of this policy, we have been considering two Bills in the last few months—the Local Government Bill, which is still going through Committee in this House, and the Public Health Bill, which has passed Second Reading and is going into Committee Stage. Literally, it would be no exaggeration to say that, if both these Bills become law, this country will be inundated with Statutory Rules, Orders, Regulations, and by-laws affecting the life, liberties and property of the people. Rules and Orders of the Minister under the Local Government Bill, which is going through the Dáil at present, if it is passed into law, will affect the rights of the people to exercise their liberties in local affairs through their local councils.

That Bill will take away from the representatives in the local authorities the last vestige of power left to them. One of the Ministers in a recent speech adumbrated a managerial system for the State. What is that but a dictatorship? The Public Health Bill, if it becomes law in the form in which it came before the House on Second Reading, will give rise to thousands of Orders which will affect the liberties and the personal rights and the dignity of the human person.

Deputy Anthony said he had prepared a vast quantity of material and I regret he was unable from his point of view, which is one of sanity and sincerity, to bring these matters before the House. I am accustomed to be told when I speak in this House that I speak in an exaggerated form and as a politician and, perhaps, as a lawyer. Deputy Anthony speaks here in accents of sincerity as a plain man. He recommended the motion for the acceptance of the Taoiseach. Nothing would surprise me more than for the Taoiseach to accept the motion in the spirit in which it was made by Deputy Anthony. It would be a fundamental reversal of Government policy for this Government to say to Deputy Anthony: "We have these Acts which are carried into effect, not by what appears on the statute book itself, but by what may appear in the flood of orders, regulations and rules emanating from Government Departments, but we will let the people henceforth see what is going to be done and the policy will be clear on the face of the Bills. The fundamental principles will be debated in this House and there will be an opportunity for the people's representatives to express their views on these matters." It would certainly be a surprise to me if the Taoiseach did accept this motion and did show a reversal of Government policy in this matter, but it would at least be some consolation to know that the Taoiseach had at last seen the writing on the wall.

Mr. Cogan

I believe that to-day democracy is in greater danger from its friends or alleged friends than from its open enemies. We have, during recent years, seen the growth of a strange type of democracy in many countries, the growth of a type of government which claims to be democratic in every sense and meaning of the word, but which in actual effect is contrary to every established principle of democracy, for what is democracy but government of the people by the people? The only effective means by which people can govern themselves is through democratically elected representatives. It is quite possible for a Minister, in assuming totalitarian powers, to say that he is elected by the people under the Constitution as was stated here in this House to-day. I might have misunderstood what the Minister said but at least the Minister quoted the Article of the Constitution which makes the Minister responsible for his Department and, basing his case upon that responsibility, the Minister asserted that he has a right to do anything in order to fulfil that responsibility. There are definite limits beyond which an Executive should not be allowed to go and the question is where is the line to be drawn.

We will acknowledge that, in modern government, administration is becoming much more complex than it was 20, 30 or 40 years ago. Governments all over the world are assuming wider powers in industry, in commerce, and in practically every human activity than was deemed necessary or desirable prior to the first Great World War, but that in itself is not a justification for ousting completely the power of Parliament. It is possible for an Executive Government to say that it is democratic simply because it is elected by the people. It would be possible for a dictator, if he secured a majority vote of the people at an election, to say: "I have been elected by the majority of the people so I can do anything I think fit; therefore I am governing democratically," but the essence of democracy is that the various conflicting or different policies, interests and Parties should obtain representation in one Parliament and, having secured that representation, each group or individual Deputy should be free to take a full share in moulding the laws of the State.

The Taoiseach

Are they not free here?

Mr. Cogan

The essence of this motion is to assert that that power of individual Deputies and independent Deputies is being restricted by reason of the fact that it is now the established custom to delegate to Ministers or to the Government the power of legislating by Order. When this Parliament by a majority delegates to an executive Government the power of legislating by Order, it deprives the independent Deputy and independent Parties of the right that they ought to have in moulding the laws of the State. Statutory Rules and Orders are laid on the Table of the House and can be annulled within a certain period but, as Deputy Costello pointed out, they cannot be amended and that is a very grave and important consideration, because while a Statutory Order might be perhaps good and desirable, it might have one objectionable feature, and the only power left to this House in regard to that Order would be to wipe it out completely whereas, in regard to ordinary legislation, we have the power to deal with any Bill introduced section by section and word by word, and amend it wherever we think fit. Some Bills introduced may have quite a number of very good features and, on the other hand, a number of very objectionable features, but it is in the power and the right of this House to seek to mould that Bill in the right way. It is in the power of each Deputy to put down an amendment in regard to any section or phrase in the Bill. No such power exists in regard to Statutory Rules and Orders.

There is another very important consideration, and it is this: it is no defence for a citizen to go into court and claim ignorance of the law. I ask the Taoiseach how could any citizen of the State know all the laws that have been passed through this House? That would be difficult enough but, in addition to knowing every law passed through the House, he is expected to know every emergency Order that has been made by Ministers. As Deputy Costello pointed out, even the highest legal authorities are unable to keep track of the Orders and amending Orders that are made.

I quite readily concede that there is a difficult problem to be faced here. Government is more complex than it was in the past. There is more interference rightly or wrongly with all aspects of life than there was years ago. It is necessary for all Parties the House to face up to that and to try to evolve some means by which will be possible to ensure that every piece of legislation required can be dealt with in this House because I believe it is impossible to find an alternative for a democratic assembly such as this. There is no alternative to democracy. Alternatives have been tried in other countries and we know, and I think we all recognise, the evils of them. We have got to strengthen democracy in this country. We have got to make a legislative assembly such as this more efficient in grappling with the conditions of modern administration and legislation. If the Taoiseach would say "I am prepared to set up a commission of inquiry to deal with this problem", he would be making a reasonable approach to the question, but if he is going to turn down this motion directly and say "I consider that Ministers, in present day circumstances, should have the right to legislate when they think fit", he is doing a fundamental injury to democratic government in this State.

By way of suggestion, though I do not think he considered it very carefully, Deputy Anthony said that a committee of this House could be set up, consisting of Deputies residing within a short distance of the city, to deal with matters requiring speedy attention. I do not think that would be a feasible or a desirable proposition.

Mr. Anthony

It was suggested as an alternative to the procedure at present.

Mr. Cogan

It would, perhaps, be better than having power delegated to Ministers and their Departments, but it would have very many undesirable aspects. I have never accepted the view that this city or its immediate vicinity is in any way typical or representative of the Irish nation. As a matter of fact, it is very unrepresentative of the Irish nation. The Deputies who put down this motion have done a very useful service and the Taoiseach would be well advised to meet the motion in a reasonable way.

Major de Valera

I was disappointed when I heard Deputy Costello's approach to this motion. Seeing that it touches an aspect of government in modern times, I thought that from him we should have heard something to give us food for thought. I regret he has given us an exposition of the tactics one might adopt with a more or less illiterate jury, instead of presenting the case as if it were sought to convince a judge. It is regrettable that the Deputy who, perhaps, of all the people amongst the Opposition, should be most qualified to address himself to this subject, should have given forth such vague charges without specific references, without chapter or verse, except to quote a commonly published book, for which no particular authority, beyond the fact that it was written by a barister or a university professor, could be claimed.

I say it is regrettable, because at the root of this motion there is a problem of government not only for the moment, but from the time man first organised himself into anything more than a family. It is the problem of keeping a democratic form of government and, at the same time, having effective and ordered government. At the outset, then, in addressing ourselves to this motion, we have to consider certain facts of existence, affecting human society. One of them is the fact that you cannot deal with human society, the State and the social conditions therein, as a static thing, as a thing set for all time, as something you can dissect and then, taking a section, deal with it analytically, as you might in a laboratory. You are dealing here with the progress of human life, with things that are changing from day to day, evolving with the development of society.

Therefore, in treating this problem, we must realise that human society does change, that the complexities of modern life are greater than those of life 50 years ago, which in its turn was more complex than life 100 years before that. In other words, as we progress with what is called civilisation, we come to a higher degree of organisation of the community in which there are so many varied factors and varied groups, with changing conditions and communications, that the problem of governing that group changes as the group develops.

Now, if we regard this problem specifically, we find that where you have, say, a primitive agricultural community, it is an easy thing to legislate, practically in detail, for all the necessities of that group. A primitive agricultural tribe can legislate, in the tribal assembly, almost in detail for the group. Nearly every question affecting that community can be decided by the community in a common parliament, because there are no very differing interests. Take, however, a modern city: there you have very many complex modern elements, and you cannot call them all in to legislate. If you go beyond a city and take any country as a whole, the problem confronting the body which has to make laws to govern that community are so numerous and so varied, and it is so necessary to provide for the details, that you cannot possibly deal with them through one body in committee. In general, that is the problem with which we are faced.

The question, therefore, arises as to whether you should attempt to deal with them at all, or whether you should deal only with the principles. If you do not deal with the problems effectively, things will get into a chaotic state. On that account, we have to decide that these problems must be dealt with specifically by providing legislation. We could have another simile to guide us by taking the example of a business firm. In the case of a big, complex business, with branches in various towns and counties, no one would suggest that one manager, with his assistants, in one central place, could deal with all the ramifications of that business in every detail. He must have branch offices, and has to delegate some of his powers, duties and responsibilities, to those branch offices, so that he may have effective control. If he tries to do everything himself, he will wind up by doing nothing and losing control.

In the same way, in regard to this House and the Government of this State—and the same applies to any democratic Parliament — we cannot possibly deal in detail with all the problems and all the administrative odds and ends. We cannot legislate for every possibility; we have not the time to do so, nor could we get through it in the time. Even if we could, it would be impossible to change from one facet of the case to another, and we would end up by failing to deal with the problems at all. For that reason, I submit that it is absolutely essential, in the first instance, to have delegated legislation. Now, I am stating nothing new in that. It is a conclusion which all the authorities who have studied the matter have been forced to—that delegated legislation is a necessity. The question is as to the way it is to be applied. However, before I come to that, another thought strikes me in connection with the question of parliamentary control.

Deputy Costello has been at some trouble to point out the dangers under this system to what he calls democratic institutions. He has spoken about the effectiveness of Parliament, but Parliament can be effective only if it addresses itself to reality. It can be effective only if it keeps the real control and delegates the details in such a way that it can, at all times, control the principle. That, in fact, is the basic idea underlying the system which has grown up here, in England and elsewhere over a number of years. You must try to secure that Parliament decide the main principles of all legislation and leave the details to be worked out elsewhere. In that way, there is a chance of keeping control. As I said, this system is not new. The roots of delegated authority of this sort go very far back. They had their origin in the necessity for dealing with problems of government, and they are quite a common feature of our law.

Some years ago, the subject was examined by a committee known as the Donoughmore Committee. It furnished a report on the subject, which was presented to Parliament in 1932. The copy I have is dated 1936. That report dealt exhaustively with the question of delegating power for legislating by Order to Ministers and with similar subjects. It stated, at the outset, that there were definite advantages in the system of legislation by Order, when certain safeguards were provided, but it went further and stated that this system was absolutely inevitable. The members of the committee pointed out that the complexities of modern life were such that you could not deal with the problems of government effectively unless you delegated powers to the Executive. They summarised their reasons in favour of delegating those powers under two heads. In the first place, they pointed out that the pressure on Parliamentary time would be so great that to attempt to deal with all the problems which required legislation for their solution would mean that many of these problems would have to remain unsolved. In the second place, they pointed out that, owing to the multifarious matters involved and their technicality, it would not be a practical proposition to deal with them in Parliament. The word "technicality" is not used exclusively in the engineering or scientific sense. It includes technicalities of administration, law and similar subjects and it would not be feasible to consider these matters in the ordinary parliamentary way.

Another very cogent reason was concerned with unforeseen contingencies —the impossibility of legislating in a Bill for all contingencies likely to arise. For the sake of effective implementation, it might be necessary to delegate powers to Ministers under a particular Act. In other words, in order to ensure that the law passed by Parliament, embodying the intention of Parliament, be made effective, it was necessary to delegate powers to Ministers. Let me stress that point because, to those who speak of parliamentary democracy and the necessity for parliamentary control, it is important. In order that the will of Parliament may be effective and that democracy, as given effect by representative government, be a reality—in order to secure that, it is necessary to delegate powers to the executive to provide the required details of the law. That is necessary if the intention of Parliament is not to be reduced to a nullity. That is very important—that it is actually necessary for the support of our democratic institutions to delegate powers to the executive, with the usual safeguards, as has been customary.

To continue with the report of the Donoughmore Committee——

Mr. Byrne

The Minister for Local Government said that that was not a reliable document when I quoted it a moment ago.

Major de Valera

The Deputy's remarks are quite irrelevant.

Mr. Byrne

I am merely telling you what he said.

Major de Valera

I am giving the results of an investigation elsewhere and my own comments upon them. The Deputy's remarks are completely irrelevant.

Mr. Byrne

The Minister said the report was completely unreliable.

Major de Valera

The Deputy's remarks are completely irrelevant to the motion. Flexibility is necessary for effective government and that largely depends on some such system as this. I invite Deputies to look back at Acts of Parliament in which attempts were made to legislate in detail for specific contingencies. At the moment, I can think of just one example. A famous Act of the British Parliament, applicable to this country, is known as the Judgment Mortgage Act. There are a number of amending Acts relating to that Act. That series of Acts purports to deal in great detail with matters of procedure as regards registration of judgment mortgages. What is the result? The law is so complex on the subject that nobody cares to register a judgment mortgage if he can avoid it. These Acts have given rise to more litigation and there have been more decided cases negativing the original intentions of the legislature in respect of them than has been the case in respect of most Acts to which Deputies in Opposition would refer in support of their contention.

Those two points are important. The fact that they are referred to in the Donoughmore Report is neither here nor there. Inherently, and in themselves, they are important, and I urge them upon the House. If this body try to prescribe every little tittle of legislation, it will cease to have any effective control of legislation as a whole. We shall literally lose ourselves in a mass of wordy technicalities. In a short time, we shall not see the wood because of seeing so many trees. These reasons, I think, in themselves, are sufficient to justify the passing of legislation which embodies provisions for Rules and Orders.

But, to continue the enumeration taken from the particular report, there comes another reason, and that reason is the opportunity for experiment. Of course, from a purely academic point of view that could cut both ways, but it is necessary very often to save public time, to save litigation and futility on the part of the legislating power—to give a discretion to the executive to find what is the most expeditious, effective and fair way of dealing with certain detailed aspects of a problem. I think that that is about all that need be said upon the report there.

Now, these matters have been recommended by the Donoughmore report and they commend themselves, particularly the ones I have mentioned, to anybody who studies the problem, and I think whatever conclusion one comes to upon the report itself, we have the following incontrovertible conclusions. You cannot get away from the fact that subordinate legislation by order is a practical necessity. Not only that, but it is an inevitability. So now, with these premises, I think we can proceed with the remaining matters which arise on this motion.

Turning to the remarks of the proposer of the motion, if I understood him correctly, I think he was addressing himself rather to the question of Emergency Powers Orders than to the question of Orders in the completely broad sense with which I was dealing.

Mr. Anthony

No.

Major de Valera

Now, if the question of Emergency Powers Orders is involved, the following remarks appear to me to be relevant. An Emergency Powers Order is something which arises under emergency conditions, and here, under the Emergency Powers Act——

Mr. Anthony

I do not like to interrupt the Deputy, but I specifically mentioned that I wanted to omit the word "emergency" during my speech. If the Deputy looks up the Official Report later he will find that that is so.

Major de Valera

I accept what the Deputy says, but I understood him to use a phrase beginning with the word "emergency," and that may have misled me. In any event, the emergency legislation is something to one side and I think I can dismiss it with the following remarks. Firstly, it was an absolute necessity while the war was on. I think Deputies on the far side of the House will agree it was an absolute necessity for the safeguarding of the State and of the community.

Mr. D. Morrissey

And for keeping down wages.

Major de Valera

That being so, with the passing of the emergency—let us say, rather, the position as soon as the emergency eased, because nobody can say the emergency is over; there is a world emergency, and, in fact, an emergency that in some respects is growing more acute instead of conditions being made more easy—you had the amending Act of 1945. That Act proceeds to abolish certain emergency provisions which are no longer necessary. I think that in itself is a sufficient answer to people who make the charge that there is an effort to continue emergency powers Orders. In so far as it is prudent or reasonable at the present moment, these Orders have been revoked, and to those who talk about the liberty of the subject and the particular sanction of the liberty of the subject, namely, publicity, I will say let them look at the Act, read it, and they will honestly admit that a straightforward, rapid effort was made in regard to deleting provisions which, though necessary in the emergency, are undesirable in a time of peace. I think any fair-minded man will agree that these deletions are more than an evidence of goodwill towards the democratic institutions so lauded by the Opposition.

The House has only a few more minutes to consider this motion for to-night, and I would just like to refer to the necessity for this delegated legislation, and then to proceed further and to say that, of course, some safeguards are needed, and, of course, some control is needed; but it remains to be seen how far, in fact, those safeguards have been applied. I submit that these safeguards have been provided, and, lastly, that the terms of this motion appear to want nothing more than the continuance of the situation as it is at present. I move the adjournment of this debate.

Mr. D. Morrissey

If the Deputy has concluded his speech, I have a few words to say.

Major de Valera

I have not concluded my speech. I merely moved the adjournment.

An Leas-Cheann Comhairle

The Deputy moved the adjournment of the debate.

Mr. D. Morrissey

With all respect, the House sits until 10.30 and it is not that time yet. If the Deputy has finished his speech, I have something to say.

Major de Valera

I have not finished my speech. I will continue it now.

Mr. D. Morrissey

That is all right, so.

Major de Valera

We have just one minute to go. I have referred to safeguards. The next thing is to see whether this problem has been studied. I feel I may have digressed a little into the details. The essential part of my remarks as regards this motion is that the problem has been studied in detail and the lines for its solution are known and accepted. Therefore, there does not appear to be any particular reason for establishing a committee such as is proposed in this motion. The Donoughmore Committee considered the problem as far back as 1932. In the years before the war there was sporadic advertence to it. During the war, naturally, in England particularly, there was a great growth of Orders and emergency legislation, I should say considerably more than here, and the result has been to draw forth a number of publications on the subject. The subject has been discussed here at home.

An Leas-Cheann Comhairle

I will now ask the Deputy to move the adjournment of the debate.

Major de Valera

I move that the debate be now adjourned.

Debate adjourned accordingly.

The Dáil adjourned at 10.30 p.m. until 3 p.m. on Thursday, 28th February, 1946.