Dáil Éireann debate -
Thursday, 27 Nov 1947

Vol. 109 No. 2

Statutory Instruments Bill, 1947—Final Stages.

Mr. H.M. Dockrell

I move amendment No. 1:—

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".

The effect of the amendment is that timely notice should be given of some of these Orders. The Minister, I think, has cast some doubt as to whether this measure was ever the law in this country, but some people seem to think that it was. In any case, the Minister is cutting unduly short the notice of these Orders. Nothing can bring the law into greater disrespect than to have the people totally ignorant of what the law is which they break: in other words, that a law is made to-night and that they are charged with an offence the next day. I appeal to the Minister that, if he is not going to allow the 40 days, he ought at least allow reasonable time during which the ordinary person can become aware of any regulations which may be made. Another point is that at the present time it is very difficult to get printing work done, and hence there is unusual delay in the getting out of these Orders. That adds to the difficulty, and, therefore, I would urge the Minister to accept the amendment.

Mr. MacBride

I would like to support the amendment moved by Deputy Dockrell. Apart from that, there is another matter which I would like to raise in relation to this Bill and I am not raising it in any partisan way.

An Ceann Comhairle

The Deputy will raise that on the Fifth Stage. There is rarely any debate on the Report Stage unless on an amendment. The Deputy will have his opportunity on the Fifth Stage in a few minutes.

Mr. MacBride

With regard to the amendment, I would like to support it for this reason, that I think it would be extremely helpful to the Government, as well as to the public, if a lapse of time took place before an Order became permanent. The original Act of 1893, which this Bill is intended to replace, made provision for a period of 40 days during which anybody interested might have an opportunity of making representations to the Government, or to the rule-making authority, or whoever it might happen to be. Power was given by Section 2 to have the rules put into operation provisionally and immediately. That, I think, was a good way of dealing with the matter — that before a rule became permanent a period of 40 days was allowed to anybody who might wish to make representations to have the rule amended in some way or another. That enabled it to be considered more carefully by the people affected. The rule-making authority might at the end of 40 days decide to amend the rule and suggestions might be made which would improve the rule.

The difficulties created by such rules and Orders were dealt with in our courts on several occasions. In one case, particularly, the difficulties experienced by the courts were set out fairly clearly by the late Chief Justice Kennedy. If I may, I shall quote a couple of passages from his judgement when dealing with the matter. I think it might be well if the Minister would bear this in mind in considering the amendment. I am referring to the case of Quinlan v. Kavanagh, reported in the 1935 Irish Reports, page 249. On page 263, the Chief Justice, in dealing with the matter, stated:—

"The court asked for a copy of the regulations to which he referred. None could be supplied. Neither party before the court had a copy. Inquiry at the Law Library elicited the information that no copy had been supplied to the Law Library, and apparently their existence was unknown. The court then inquired of counsel for the State whether, if the court sent a messenger to the Stationery Office, or the Government Sales Shop for Official Publications, a copy could be purchased, which we were prepared to do immediately. The answer was that a copy could not be procured in that way, because the document was not on sale and could not be purchased either by the public or even for our official use.

The Chief Justice later on says:—

"It is questionable indeed if one should speak of it with restraint. It is an affront to the court. To permit it would be a travesty of justice and, for my part, I reject an argument so proffered as incapable in law of being entertained by any court of justice.... When legislation by rules is authorised by Parliament, as we know them, the semblance at least of Parliamentary authority is retained by requiring the rules when made to be laid before the Houses of Parliament and by reserving power to annual them if disapproved. Not so here. The Minister is not prepared to bring before the Oireachtas, in any way, the regulations or rules he is empowered to make under Section 10.

Then he deals specifically with the question of the Rules Publications Act which this Bill repeals. He asks:—

"But what of the Rules Publication Act, 1893, as adapted by the Adaptation of Enactments Act, 1922 which has up to the present escaped repeal or amendment? Though not cited by counsel, it appears to apply to these statutory regulations, which undoubtedly constitute a public document, one which the public are entitled to see, and which may be of the first importance to the welfare of the prisoners held under this amendment of the Constitution. Secrecy asserted for rules and regulations as to the custody, care, and discipline of persons arrested or detained under the new Article inserted in the Constitution, and the secrecy insisted upon in the face of a public court of justice of this State on the hearing of an application for an order of habeas corpus, is not a matter which the public should lightly pass over as a mere incident in a court. It demands the gravest public consideration.”

It is clear from that judgment delivered by the Chief Justice in the Supreme Court that the view was taken, certainly in 1935, that the Rules Publication Act, in effect, did apply. I know that some doubt was cast upon the matter subsequently — I think, in 1943 — by the former Chief Justice Sullivan as to whether the term "Her Majesty in Council" which is used in the Rules Publication Act had been adapted. That could easily be overcome by an adaptation Order to clear up any doubts that might exist, but I urge the Minister to consider, from the point of view of public administration, whether it would not be advisable to adopt the procedure laid down in the Act of 1893, because it did provide for a period during which representations might be made before the Order became operative, and very often enabled the rule-making authority to make a more satisfactory kind of Order, in that it enabled the rule-making authority to obtain the criticism and views of those who would be affected by the Order and those who would have to operate the Order, and it would therefore be a helpful provision.

Minister for Justice (Mr. Boland)

What I said on the previous day was that this Act never applied to this country at all. I know about the judgment of Chief Justice Kennedy, but Deputy MacBride is aware that there was a subsequent judgment of the Supreme Court in which it was held:—

"The Rules Publication Act, 1893 (56 and 57 Victoria, c. 66), which deals with the making and publishing of rules and regulations made by specified rule-making authorities does not apply to Statutory Rules and Orders made by the Government in as much as there has been no adaptation of the Act to that purpose."

There may be a case in which it would be necessary to bring an Order to the attention of the people concerned, but I think the way that ought to be done is by embodying it in the legislation which authorises the making of the Order. Take, for instance, the Police Forces (Amalgamation) Act, 1925. That Act required the Minister for Justice, before making a pay Order, to consult the Representative Body, and I say that the way in which this should be done, where it is thought desirable that such notice should be given, is by embodying it in the relevant Act. If I were to accept the amendment as it stands, it would mean that we could never make an Order without giving 40 days' notice. It would mean that we could make no Orders at all without giving that notice, without giving local authorities and everyone interested the full 40 days in which to make their objections and so on.

I think we have in this Bill a very useful arrangement, and, as I reminded Deputy Dockrell yesterday, if it can be shown that the rules have not been published and that a person was not in a position to know that the rule was in force, it is not a question of mitigation but of the charge being dismissed. That was never in the Act before and I think it is a very valuable addition. For all these reasons, the Deputy ought not to press the amendment. It is an amendment which I could not accept.

Mr. H.M. Dockrell

I am not pressing my amendment as an amendment. The Minister can work it out in his own way. Surely he has a very weak case when he says that, if a person can prove that he did not know about the Order, the case would be dismissed? Surely it would be better if the case were never brought and if adequate notice and publicity were given? I make the Minister a present of the form — he is the best judge of that — but, in order to convince us, he speaks of notice being given in the enactment itself and he brought in some point about Garda Síochána pay. I am sure that Garda Síochána pay is a very important matter, I am sure the pay of the Garda Síochána is a very important matter, but it is a very different matter when citizens are charged with committing offences. I would suggest that the Minister might look into it to see what is the best way of effecting some compromise under which the people would have some notice.

Acting-Chairman

Are you pressing the amendment?

Mr. H.M. Dockrell

I put it to the Minister not to bring the law into disrespect.

Mr. Boland

That is what has been done.

Mr. H.M. Dockrell

You have heard the suggestion made by Deputy MacBride that an Order should first be brought in and confirmed afterwards. Is the Minister prepared to consider it?

Mr. Boland

I have considered it and I am not prepared to accept the amendment.

Amendment, by leave, withdrawn.

Question: That the Bill be received for final consideration, put and agreed to.

Questioned proposed: "That the Bill do now pass."

Mr. MacBride

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.

Mr. Boland

On the point about whether it is unconstitutional or not, I will have that examined. It has been examined, as every Bill is examined from that point of view. But, as this question has been raised, I will have that matter examined again and, if my legal advisers advise me that it is unconstitutional in the way in which the Deputy has suggested, I will take steps to have it rectified in the Seanad. As regards the use of the word "primarily" in the phrase "statutory instruments to which this Act primarily applies," which occurs in Section 2 and other sections, it may be observed that the principal provisions of the Bill are in Sections 2 and 3. The provisions of Section 3 must be applied to statutory instruments not excluded or exempted under Section 2. However, Section 3 (5) indicates that statutory instruments excluded or exempted under Section 2 may, nevertheless, be printed and published; Section 4 indicates that the Stationery Office may assign numbers to such statutory instruments and Section 5 provides that any statutory instrument may be cited by its number or by a short title. Thus, while the Bill primarily applies to statutory instruments covered by Section 2, it also has discretionary provisions regarding other statutory instruments. That is the explanation why the word "primarily" occurs so often through the Bill.

Mr. MacBride

If that is the intention, will the Minister not consider including a small sub-section or definition section explaining what is meant by the word "primarily" in that sense?

Mr. Boland

I will look into that. As the Deputy is aware, the Bill cannot be amended on its Fifth Stage, but I will look into it and see if it requires more explanation. This Bill is intended to help the public and the legal profession. As I said, we have already made provision, where proper notice has not been given, that the court may dismiss the case. I will look into it to see if a definition section defining the word "primarily" is necessary.

Question put.

Division challenged.

Acting Chairman

Will Deputies demanding a Division please stand up?

Mr. Davin

Is it not necessary to summon all the members into the House before you put the question?

Division bells rung accordingly.

Question again put.

The Dáil divided: Tá, 45; Níl, 24.

Tá

• Bartley, Gerald.
• Blaney, Neal.
• Boland, Gerald.
• Bourke, Dan.
• Brady, Brian.
• Brennan, Martin.
• Brennan, Thomas.
• Briscoe, Robert.
• Buckley, Seán.
• Butler, Bernard.
• Carter, Thomas.
• Colbert, Michael.
• Colley, Harry.
• Crowley, Honor Mary.
• Derrig, Thomas.
• De Valera, Eamon.
• De Valera, Vivion.
• Flynn, Stephen.
• Fogarty, Andrew.
• Gorry, Patrick J.
• Harris, Thomas.
• Healy, John B.
• Kilroy, James.
• Kissane, Eamon.
• Lemass, Seán F.
• Little, Patrick J.
• Loughman, Frank.
• Lydon, Michael F.
• McCarthy, Seán.
• McEllistrim, Thomas.
• MacEntee, Seán.
• Moylan, Seán.
• O Briain, Donnchadh.
• O'Grady, Seán.
• Ormonde, John.
• O'Sullivan, Ted.
• Rice, Bridget M.
• Ruttledge, Patrick J.
• Ryan, James.
• Shanahan, Patrick.
• Sheridan, Michael.
• Skinner, Leo B.
• Smith, Patrick.
• Traynor, Oscar.
• Ua Donnchadha, Dómhnall.

Níl

• Beirne, John.
• Byrne, Alfred.
• Coburn, James.
• Costello, John A.
• Davin, William.
• Dockrell, Henry M.
• Dockrell, Maurice E.
• Donnellan, Michael.
• Flanagan, Oliver J.
• Giles, Patrick.
• Hughes, James.
• Keating John.
• Kinane, Patrick.
• MacBride, Seán.
• McGilligan, Patrick.
• McMenamin, Daniel.
• Mulcahy, Richard.
• O'Leary, John.
• O'Reilly, Patrick.
• Pattison, James P.
• Reynolds, Mary.
• Rogers, Patrick J.
• Sheldon, William A.W.
• Spring, Daniel.

Tellers:—Tá: Deputies Kissane and Ó Briain; Níl: Deputies MacBride and Kinane.

Question declared carried.