It is necessary to say that we have had examined further the question which was raised last night, and the Government is satisfied that the Dáil is quite entitled to go ahead with the Bill.
Adoption Bill, 1952—from the Seanad.
The Minister will agree that it was not merely a question of the Dáil being entitled, but being satisfied that there could not be any unnecessary litigation about it. That is not quite the same thing.
There may be litigation, but there is no chance of it succeeding. We cannot stop people from starting litigation.
On the matter mentioned by the Minister for Justice, there is nothing controversial here involved. We all have a common purpose, which is effectively to pass this Bill in a way which will not beget injurious litigation. Nobody questions the good faith of the Government in seeking to adopt the course they recommend to the House. Nobody casts any serious doubts on the validity of the advice they have received. I want to put it to Deputies, however, as common-sense men, that once a doubt has been raised at all, they should envisage a situation, in ten or 15 years' time, when a dispute arises about so intimate and earnest a matter as the adoption of a child. Can any reasonable man doubt that if a person, moved by deep emotion, goes to a competent solicitor and says: "I want to exhaust every device available to me at least to postpone this adoption so that I can allow other forces to operate", any reasonable solicitor will say to him: "Well, I cannot get an opinion for you that a case on the ground that there was a flaw in the enactment of the Adoption Act will prevail, but I have no doubt whatever that we can get a hearing in the High Court, and if we fail in the High Court we can certainly go to the Supreme Court to clarify that issue." Whereupon litigation will be started which may continue for six months, involving some humble individual in very serious distress and expense and possibly precipitating a family rift, the end of which no one in this House or anywhere else can foresee.
There has been some slip up somewhere, which is probably or possibly nobody's fault, but all these possibilities can be removed by our discharging this Bill, the Minister getting the same Bill printed with the amendments which he accepts from the Seanad, and this House and the Seanad passing the whole thing through in a day. There is no question of controversy here, there is no doubt that everyone in the House wants to do the same thing; but I feel bound to put it before the House that the way I am suggesting to the House and to the Minister will make impossible any litigation on a Constitutional issue.
The way we are acting to-day certainly leaves it open to a person who is desperately concerned to postpone an adoption by six months' litigation which may yet be a source of very great distress to those involved in it. If, by any chance, the verdict of the courts went against our view, it would mean that every adoption under this Act would be called in question. Suppose there is some facet of this business that has escaped the attention of us all which, skilfully argued in the courts, evoked from them in ten years' time a declaration that the way we passed this Bill was invalid, every adoption that would have taken place between the passing of the Bill and the litigation would thereupon become invalid. I see the possibility—no more than that—of somebody seizing on that. Why should we take that risk when, by adopting the more radical procedure, we could put all danger aside and ensure that what we intend doing will be rightly done?
The constitutional principle is that the Oireachtas can do anything which it is not expressly prohibited from doing by the Constitution. We must not, on this Bill or ever, take steps which would imply that we doubt the validity of that principle. If, on this Bill, we took any course of action which suggested that there was any doubt about that principle, the consequences might be more serious than those envisaged by Deputy Dillon if we proceed. There is no reasonable doubt in anybody's mind that that is the position—that the Dáil can do anything which it is not expressly prohibited from doing by the Constitution.
Provided it is done at the right time. The point here is that we did not do it at the right time.
The Constitution is quite clear. The Dáil may in these circumstances, without considering the Seanad amendments, enact the Bill.
That is agreed.
We are all agreed on that.
There is nothing in the Constitution which prohibits the Dáil from considering and adopting the Seanad amendments. It can do anything it is not expressly prohibited from doing and it is important that we should not now, by any course of action, imply that there is any doubt about that principle.
We are all agreed that we can pass this Bill without the amendments, but there is another principle that is always accepted. That is the principle that you cannot give retrospective or retroactive effect to an Act without express authority. That principle is also enshrined in the Constitution where it says that you cannot make an ex post facto crime. What we are doing in fact is retroactively extending the time.
No, that is not so.
Let me develop the point very slightly. If we are retroactively extending the time, I suggest that we are running contrary to the other principle. I do not think there is any doubt whatever that, if we had all thought of it—I am not trying to score points about anybody having missed the date——
We thought of it and we brought it to the Seanad in time. We did not slip up at all. The Department, when it saw that the time was running out, drew the attention of the Seanad to it, and the Seanad referred the matter to their Committee on Procedure and Privileges.
They thought they were all right.
Yes, by extending the time.
I am glad to hear that the Minister and his Department did advert to it and I was not trying to score any point in that regard. The Minister is naturally defending his Department, as he and any good Minister should.
I am explaining a fact. We did draw the attention of the Seanad to the fact that the time was running out.
The Minister will agree with me that there is a principle involved that you cannot enact retrospectively or retroactively without specific authority so to do, and it is precisely because I am afraid that what we are doing is going back to the ninetieth day that I am worried about this.
That is not correct. If the Bill had come back to us from the Seanad within the stipulated time, or if the Seanad had asked for an extension of time, we would have to deal with these amendments. We would have no choice but to decide on their adoption or rejection. We are in this position now, that we could enact the Bill without the amendments.
We have that power under Article 23, but that is an enabling or an empowering Article, and it does not prevent us from considering and adopting the amendments, even though they have come to us after the expiration of the stipulated period. As the Dáil is not prohibited from doing so by the Constitution, it is empowered to do so.
I am not arguing on these points because I think it is manifest that two reasonably intelligent men like the Tánaiste and Deputy Sweetman can find material on which to argue. It is this that I am apprehensive about—that, at some future date, two reasonably intelligent bars of counsel will say that this is a matter than can reasonably be argued before the High Court or Supreme Court. That is all I want to prevent.
The Deputy will appreciate that that is a lesser risk than that we should now imply that we have doubts about the powers of the Dáil.
I do not want to doubt my powers at all. All I want is to ensure that no future orphan will become subject to litigation which might go on for months. Would this middle course commend itself to the Tánaiste: let us exercise our undoubted right to pass the Bill, and let the Minister for Justice bring in an amending Bill at his convenience to incorporate the amendments he approves of?
Any such course implies that we have not power to deal with the amendments now, or that we have a doubt about it.
Not a doubt as to whether we have power, but whether we are dealing with it at the proper time.
Asserting all our powers and denying that we are in any way circumscribed by the law, but desirous of avoiding the possibility of involving some future humble person in litigation to vindicate that undoubted right hereafter, might we not, with propriety, pass the Bill without the amendments, on the understanding that the Minister for Justice will bring in a Bill forthwith to amend our Act?
There is no reason why we should do that, unless we have doubts about our powers, and there are no doubts.
I have said my say. I am merely desirous to protect the humblest individual in the State from the possibility of being made the subject of litigation of the kind I apprehend. I have no doubt that everybody on every side of the House shares my solicitude. I am offering my remedy: let the Government do what they please.
Has the Tánaiste taken legal advice?
And is the legal advice perfectly clear?
The advice we have got is that there is no possible doubt whatever about the power of the Dáil to deal with these amendments.
I propose to accept these amendments. I move that the Committee agree with the Seanad in amendment No. 1:—
In Section 12, sub-section (3), page 5, line 32, the word "and" deleted; and at the end of the sub-section the words "the Baptist Union of Ireland and the Brethren, commonly known as the Plymouth Brethren" inserted.
The sub-section as it stands sets out that members of four specified religions may, in special circumstances, be deemed to be members of the same religion for the purposes of the section. As the House is aware, this provision has been included at the joint request of the authorised representatives of the religions mentioned. They wished to be included.
I move that the Committee agree with the Seanad in amendment No. 2:—
In Section 15, sub-section (1), page 6, lines 4 and 5, the words "within three months of" deleted and the words "not earlier than three months before" substituted.
This is purely a drafting amendment.
I move that the Committee agree with the Seanad in amendment No. 3:—
In sub-section (1), page 7, lines 14 and 15, the words "before the child attained the age of seven years and" deleted.
The purpose of this amendment is to permit an existing informal adoption to be legalised even though the child was over seven years of age when it was taken into the home. As the Bill stood, in the case of an existing adoption the child should have been under seven years of age and not over seven years of age when it was formally adopted. The effect of this amendment will be to cut out that so that a child can be adopted if it had been informally adopted when it was over seven years of age.
Previous to the passing of this Act?
Suppose a child was informally adopted——
Previous to the passing of this Act?
Yes. There will be formally adoption after that.
This amendment would mean that a person of 35 years of age could be adopted.
The Minister for Finance might fairly be described as a child.
No. I have another name for him which I will give him during another debate. This amendment in reality means that any person over seven years of age could be adopted. When a child reaches the age of seven years he is a person within the meaning of the Act, and it means that a person over 21 years or 31 years of age can be adopted.
Surely a person is not a child after he reaches 21 years of age? We all know that. Most of us may be infants all our lives but luckily the Deputy is no longer a child.
This amendment allows any person over seven years of age to be adopted. I met an old woman 87 years old whose son was applying for the old age pension. He died before he got it, and she said she knew she would never rear him.
The word "child" is defined in the Act?
Of course it is. It is defined as follows:—
"‘Child' means (save where the context otherwise requires) any person under 21 years of age."
All right. One can be adopted up to 21 years of age. That is clear now.
That is right.
Of course, there is always the horrible prospect of the Minister for Finance being adopted.
I move that the Committee agree with the Seanad in amendment No. 4:—
In sub-section (5), page 7, lines 25 and 26, the words "twelve months" deleted and the words "two years" substituted.
I move that the Committee agree with the Seanad in amendment No. 5:—
Before Section 28, page 9, a new section as follows inserted:—
For the purposes of—
(a) the Fatal Accidents Acts, 1846 to 1908, and
(b) the Workmen's Compensation Acts, 1934 and 1948,
an adopted person shall be considered as the child of the adopter or adopters born to him, her or them in lawful wedlock and not to be the child of any other person.
This is a new section and its purpose is to provide that an adopted child will be deemed to be a member of the family for the purposes of the Fatal Accidents Acts—which confer certain rights to compensation on dependent relatives of persons killed in accidents — and for purposes of workmen's compensation.
I move that the Committee agree with the Seanad in amendment No. 6:—
In sub-section (1), paragraph (c), page 12, line 22, after the word "person" the words "(not being a registered adoption society or a public assistance authority)" inserted.
The purpose of this amendment is to enable registered adoption societies and public assistance authorities to advertise.