Deputy Dockrell has put in an amendment in typescript. The Deputy may move it now.
Statutory Instruments Bill, 1947—Committee.
Sections 1 to 5, inclusive, agreed to.
SECTION 6.
I move:—
In page 4, line 47, before the word "the" to insert the words "Sections 2, 3, 4 and 5 of" and delete the word "is" and substitute the word "are".
I suppose in some ways this Bill does simplify procedure but there is one very objectionable feature in it. The Act of 1893 which it is proposed to repeal in its entirety contains a provision that 40 days' notice has to be given of its intentions by the Government. Far too little publicity is given in matters of this kind and a big number of people incur the most severe penalties by reason of ignorance. The Minister has not told us why he intends to do away with this very important safeguard. In the explanatory memorandum, he states that—
"provision is made in Section 3 (3) of the Bill to ensure that contravention of a statutory instrument will not be punishable as a criminal offence unless adequate publicity has been given to the instrument when made".
I take it that all that that means is that when a person has committed an offence a certain amount of mitigation will be allowed, if he can show that he knew absolutely nothing about the provisions but I should like to suggest that the time has gone — and we hope it will not return — in which it was necessary to have this extraordinary haste in which statutory rules had to be passed overnight and given effect to the next day. I would ask the Minister to consider why he cannot revert to the provisions of the Act which has been in force for over half a century and which has apparently worked very satisfactorily. I accordingly move this amendment and I thank you, a Chinn Comhairle, for allowing me to move it.
I should like to support the amendment and I would ask the Minister to consider this proposal very carefully. I think that anybody who has had experience of Statutory Orders in recent years, whether he was acting for the Government or acting in defence of somebody charged under and by virtue of such Orders, experienced the same difficulty in ascertaining exactly what Orders were in force and whether they had been amended. I think that that was largely due to the haste in which Orders were often made and that any form of brake on that haste would prevent confusion. Very often Orders were made and amended, possibly three or four times within a month of their being made. That was due probably to haste at the time the Order was made. A brake would have avoided all these amendments; any kind of brake that would have delayed immediate action would probably have helped the Department concerned to appreciate the various difficulties that might be met if the Order were drafted hurriedly. Not infrequently, I think, a number of prosecutions brought forward on behalf of the State failed because the prosecutions were brought under Orders that had been repealed or amended. I think the Government should consider carefully the advisability of limiting its own powers in that respect and evolve some machinery that will ensure that these Orders will not be made hurriedly. It only leads to confusion, not only for the person affected by the Order, but for the Department of State involved.
There is another suggestion I will make to the Minister; I do not know if he can consider it on this stage, but it would be well worth considering, and it is this, that, as regards any Orders that impose a liability or affect a right, copies of such Orders should be filed at least in the High Court and Supreme Court offices. Judges often have considerable difficulty in obtaining copies of Orders and in knowing what Orders are in force. It is a thing that would facilitate the courts considerably if an official set of copies of these Orders was filed at least in the High Court and in the Supreme Court. It would be well, if it were not too complicated, also to have them filed in the Circuit Courts throughout the country. Coupled with that, I also suggest to the Minister that there should be an official file of all these Orders made available publicly, say, in the National Library or in the General Post Office, so that a person would be in a position to go there and ascertain exactly what Orders had been made.
I know that nominally all these Orders are supposed to be published by the Stationery Office, but very often, owing to printing difficulties, they are not available for a long time, or they may be out of print. In these circumstances, it is difficult even for a lawyer to ascertain what Orders are in being. The Minister might well consider the advisability of arranging to have copies of all Orders filed in the National Library and possibly also in the Law Library, where they will be available to members of the public for inspection.
Might I suggest that the practice of amending Orders by reference to previous Orders should be avoided, if that is at all possible? I have in mind Emergency Orders during the emergency period. No sooner was the Order made than an amending Order was immediately made by reference to the principal Order, and so on ad infinitum. In some cases as many as 12 amending Orders had to be referred to and very often these were not in print before one could find the law on a particular point. I think when it becomes necessary to amend an Order a fresh Order should be made in full and this system of amending by reference should cease. It means in practice that a lawyer has to go through all the amending Orders, plus the principal Order, correlate them and waste much valuable time in tracing the existing law on a particular point. It would save the lawyers and the courts much time if that practice could be avoided.
There is a good deal of merit in Deputy Dockrell's amendment, preserving the old system of notice before an Order is made. I desire to support his amendment.
Mr. Boland
The object of the amendment is to retain one section of the 1893 Act which, I am given to understand, has never been observed here. Deputy Dockrell said it has been, but I understand that it has not. The whole idea is to have from now onwards all these Orders printed in serial numbers. We will have to go back a certain distance. An index of statute rules from 1939 to 1945 has to be prepared by the printers and it will be put on sale when it is printed. It is intended to publish and put on sale volumes of Orders made in 1946, and subsequent Orders, and, as from 1948, the volumes will be published annually. I think that is a very big improvement.
This idea of giving 40 days' notice before an Order is made would be impossible. There is provision in the Act for all sorts of authorities to make representations and it would do away with the usefulness of making the Orders, some of which, as people know, are not very important to the general public. As to Deputy Dockrell's point, that if a defendant can show he did not know about an existing Order it might be that there would be some mitigation, that is an entirely new provision and it does not say anything about mitigation but, if the defendant can prove that the instrument had not been published, the charge shall be dismissed, and there shall be no mitigation at all. That is a new and a very useful provision. As to Deputy MacBride's point about the judges, I am informed that copies of these rules have been given. I am told that that is the practice and if not, it certainly will be henceforth.
What happens sometimes in relation to a particular case is that if officials can foresee what Orders are likely to be involved that obtain the Orders, but I have often seen cases held up owing to the absence of the Orders.
Mr. Boland
That may have been during the emergency when things had to be got through quickly, but it certainly will be the practice.
It is not necessary to put in the Bill that copies could be had in places like post offices. That could be provided for by the administrative people. They are on sale anyhow, and lawyers will have much less difficulty as a result of this Bill than they had in the past.
If I were going to accept this — and I certainly am not — it could not be done by repealing one section, but it would be necessary to redraft the whole Bill. It would not fit into the Bill and would, to a certain extent, nullify its effects. I am not prepared to accept this but I will note the remarks made.
With regard to Deputy Coogan's point it is a new Order in the series with a new number. What else could be done?
It is always being referred back. A new Order will refer to a previous Order and you may get from six to 12 Orders all referring back, while it would be a simple job to make one all-embracing Order.
Mr. Boland
I will take note of that. It is a question of drafting an Order and has nothing to do with the number?
No.
I think it might be better if we confined the discussion to the amendment and to take the general points raised on the sections.
In regard to what Deputy Dockrell draws attention to in the section of the 1893 Act, one can take sub-sections (1) and (2) of Section 1:—
"(1) At least 40 days before making any statutory rules to which this section applies, notice of the proposal to make the rules, and of the place where copies of the draft rules may be obtained, shall be published in the London Gazette.
(2) During those 40 days any public body may obtain copies of such draft rules on payment of not exceeding 3d. per folio and any representations or suggestions made in writing by a public body interested to the authority proposing to make the rules shall be taken into consideration by that authority before finally settling the rules: and on the expiration of those 40 days the rules may be made by the rule-making authority, either as originally drawn or as amended by such authority, and shall come into operation forthwith, or at such time as may be prescribed in the rules."
And sub-section (6):—
"In the case of any rules which it is proposed shall extend to Ireland publication in the Dublin Gazette of the notice required by this section shall be requisite in addition to, or, if they extend to Ireland only, in lieu of, publication in the London Gazette.”
And Section 21:—
"Where a rule making authority certifies that on account of urgency or any special reason any rule should come into operation, it shall be lawful for such authority to make any such rules to come into operation forthwith as provisional rules, but such provisional rules only continue in force until rules have been made in accordance with the foregoing provisions of this Act."
The matter has not been adverted to at all in the discussion of this measure up to the present and the Minister does not appear to be clear as to what is involved. It would be well, in passing new legislation, if it were made clear what exactly was being dropped and the extent to which, for the purpose of making a statutory Order, it would be desirable to keep some delaying period of the nature suggested in Section 1 of the 1893 Act. I suggest, perhaps, if the Minister is not in a position to deal with the matter, that Deputy Dockrell, following any further discussions, might withdraw his amendment on the Committee Stage and put it on the Report Stage.
Mr. Boland
I have no objection.
If the Minister cannot add anything useful to the discussion now he might look the matter up and anyone interested in the matter might look it up between now and to-morrow, so that we should know where we stood.
Mr. Boland
I am not trying to put anything across at all. In practice it has not been observed, but let the Deputy put it down for the Report Stage.
The Minister is correct in his declaration. About four or five years ago the courts held that this existing Act had not been applied to this country. Another earlier decision of a previous Chief Justice held that it applied and there was tremendous doubt as to whether it was in force or not.
Sub-section (5) states that it did not apply to Scotland.
Certainly I have great pleasure in withdrawing my amendment. I take it that the Minister meanwhile will look into the matter because he is possibly right that the existing 40 days' notice has not been observed here. According to Deputy MacBride there is a doubt whether it applies here or not. Certainly if the Minister's suggestion is correct that if a case is brought and a person can prove that he did not know anything about the Order, the case is dismissed, surely the Minister ought to try to strike some balance in which there would be a reasonable chance for the ordinary individual to be aware of what the law is.
Amendment, by leave, withdrawn.
Section 6 and Title agreed to.
Report Stage ordered for to-morrow.