There is just one matter to which I think I should draw the Minister's attention. I am sorry I did not do so earlier, but this is a matter of some importance and I think it is proper to raise it at this stage.
On going through this Bill it occurred to me that certain portions of Section 2 are unconstitutional. I am not raising this as a Party issue or to create any difficulty for the Minister. I am not giving a firm opinion in the matter because I have not gone into it sufficiently carefully, but prima facie it appears to me that the provisions of Section 2, which empower the Attorney-General to decide whether or not a particular Order is subject to this Bill, are unconstitutional in that they purport to give the Attorney-General the final decision of determining whether a particular Order is so subject to the Bill or not. It appears to me that it is unconstitutional on the grounds that it seeks to exercise functions which, by the Constitution, are vested in the High Court. Article 34 of the Constitution vests in the High Court full and exclusive jurisdiction in all matters of law and fact. This Bill, taken at its face value, purports to take from the High Court the right of determining whether or not a particular law has been or is subject to this Act and to vest in the Attorney-General exclusive jurisdiction to do so. The last three lines of subsection (2) of Section 2 provide “that the question may be referred to the Attorney-General for his decision and the decision of the Attorney-General thereon shall be final.” It occurs to me that that is clearly setting up the Attorney-General as a court with the function of making a judicial determination which under Article 34 of the Constitution has been vested in the High Court. The section is also somewhat vague as to who is to refer the Order to the Attorney-General— whether it is the Government, or this House, or the rule-making authority. I think that is a matter that needs some clarification.
Sub-section (3) again makes provision creating the Attorney-General a form of tribunal to determine what Orders may be exempted from the provisions of the Bill. It provides:—
"Whenever it is proposed to make a particular statutory instrument which, if made, would be, by virtue of sub-section (1) of this section, a statutory instrument to which this Act primarily applies, and
the Attorney-General is of opinion that, by reason of its merely local or personal application or its temporary operation or its limited application or for any other reason, the said statutory instrument, if made, should be exempted from the operation of sub-section (1) of Section 3 of this Act.
the Attorney-General may direct that the said instrument if made shall be so exempted, and in that case, the said statutory instrument, if made, shall not be a statutory instrument to which this Act primarily applies."
The next sub-section makes a somewhat similar provision. I shall read the last three or four lines of it:—
"He"—that is, the Attorney-General —"may direct that all statutory instruments of that class shall be so exempted, and in that case, any statutory instrument of that class made on or after the date of the direction, shall not be a statutory instrument to which this Act primarily applies."
To say the least of it, it appears to me that those provisions are suspect from the constitutional point of view. I do not offer a firm view or a legal opinion that they are unconstitutional. I have not had an opportunity of going sufficiently carefully into them, but I do seriously say that that Bill may well be challenged on grounds of constitutionality. The function of the Attorney-General is defined by the Constitution as that of legal adviser and law officer to the Government. The function of the High Court is determined by the Constitution and that court is given full and exclusive jurisdiction to determine all questions of law and fact. The Minister will remember that not so long ago an effort was made in relation to the Sinn Féin Funds Bill to vest in this House the jurisdiction of deciding certain issues. The Minister will remember that that was held to be unconstitutional. It seems to me, a fortiori, that a Bill which would vest in the Attorney-General power to determine a matter of law or fact which, by the Constitution, is vested exclusively in the High Court, would likewise be unconstitutional. I would suggest to the Minister, therefore, that before this Bill becomes law he should consider the question of referring it to the Supreme Court for a decision as to its constitutionality.
Another matter that I think the Minister should also consider is the use of the word "primarily" throughout the Bill. Section 2 states: "This Act primarily applies to every statutory instrument...." and again in sub-section (5) (b), "this Act primarily applies" and so on. The word "primarily" is used repeatedly throughout the Bill. I do not know what it means. I do not know whether the Act may apply primarily to a certain set of facts or not. Does it mean that it applies to all the Orders referred to or that it does not? It certainly is a very ambiguous way of conveying the intention of the lawmakers. Section 3 subsection (2), provides:—
"Subject to sub-section (3) of this section the validity or effect of the coming into operation of any statutory instrument to which this Act primarily applies shall not be affected by any non-compliance with sub-section (1) of this section."
Subsection (1) of course is the essence of the Bill. It provides for the publication of the notice of the Order. It makes provision for the availability of the Order made and it appears to me that the subsection of Section 3 makes the rest of the Bill of little or no value.
I am in this difficulty on the question of voting for or against the Bill, that I think a Bill of this nature is necessary, but the Bill in its present form appears to me, on the one hand, to be unconstitutional and, on the other hand, to provide little or no safeguard for an individual who may find himself faced with an Order about which he is unable to obtain any information prior to the charge or prior to a certain course of action being taken by a State Department. For these reasons, I am afraid that I shall have to oppose the passing of the Bill.