REPORT OF COMMITTEE ON COURTS OF JUSTICE BILL.

Tuarasgabháil ón gCoiste a ceapadh chun breithniú do dhéanamh ar an gceist d'eirigh as leasú 39 do Bhille na gCúirteanna Breithiúnais, 1923 (Céim Tuarasgabhála).

Report of the Committee appointed to consider the question raised by amendment 39 to the Courts of Justice Bill, 1923 (Report Stage).

1. Do ceapadh an Coiste seo leis an Seanad ar an 6adh Márta, 1924, agus siad so leanas atá ar an gCoiste:— An Tiarna Lann Abhaidh, Séamus Dubhglas, Somhairle Brún agus Seán O Fearghail.

1. This Committee was appointed by the Seanad on the 6th March, 1924, and consists of the following members:— Senators Lord Glenavy, James G. Douglas, Samuel L. Brown and John T. O'Farrell.

2. Do tháinig an Coiste le chéile ar an 7adh agus ar an 18adh Márta, 1924, agus tuairiscíonn siad mar leanas.

2. The Committee met on the 7th and 18th March, 1924, and their report is subjoined.

(Sighnithe),

(Signed),

GLENAVY,

GLENAVY,

Cathaoirleach an Choiste.

Chairman of the Committee.

19adh Márta, 1924.

1. A message from His Excellency the Governor-General, bearing date the 23rd day of September, 1923, was duly delivered to the Dáil, and reads as follows:—
"On the advice of the Executive Council and for the purpose of Article 37 of the Constitution, I have to recommend that for the purpose of carrying out the provisions of any Act of the present Session to provide for the establishment of Courts of Justice according to the Constitution and for the better administration of justice, authority be granted(a) for the charge upon the Central Fund of the remuneration and pensions of the Judges of the High Court, the Supreme Court, and the Circuit Court, (b) the payment out of moneys provided by the Oireachtas of Temporary Assistant Circuit Judges, the remuneration and pensions of Justices, Deputy Justices and Temporary Assistant Justices of the District Court, and any other expenses incurred in carrying such Act into effect.”
Subsequent to the receipt of this message and before the Courts of Justice Bill was considered in Committee of the Dáil, a resolution phrased in the terms of the message was adopted by the Dáil and Section 71 of the Bill, which incorporated the terms of this message and resolution, in so far as they provided for the payment of the salaries of the District Justices out of moneys to be provided by the Oireachtas, was subsequently passed through all its stages by the Dáil. In the Committee Stage of this Bill in the Seanad, an amendment to Section 71, providing that these salaries were to be paid by making them a charge upon the Central Fund, was duly carried, but on the Report Stage the question was raised on behalf of the Government as to the powers of the Seanad, under the circumstances, to make the amendment; and the general question as to the powers of the Seanad in this respect was thereupon referred to your Committee for their consideration and report. We accordingly have met, and after full and careful consideration beg to report as follows:—
2. First, we are absolutely satisfied that there was nothing in the terms of the message itself which precluded the Seanad from making the amendment in question. The extent and authority of any such message is expressly defined by Article 37 of the Constitution in the following terms:—
"37. Money shall not be appropriated by vote, resolution or law, unless the purpose of the appropriation has in the same Session been recommended by a message from the representative of the Crown acting on the advice of the Executive Council."
It is plain from the language of this Article that the sole and only function of every such message is to recommend the purpose of the appropriation, and consequently, in so far as in this particular case it goes on to direct the appropriation and the manner in which it is to be made, we are clearly of opinion that it exceeded its authority and had as regards these further matters no control or effect upon the action of either the Dáil or the Seanad.
3. Secondly, we are of opinion that the position of the Seanad was in no way altered or affected by the subsequent resolution of the Dáil. We have failed to find in the Constitution or elsewhere the slightest authority for the proposition that the adoption by the Dáil of any such resolution binds or controls the action of the Seanad. Such a proposition is in direct conflict with Article 61 of the Constitution, by which it is enacted that
"All revenues of the Irish Free State (Saorstát Eireann) from whatever source arising, shall, subject to such exception as may be provided by law, form one fund, and shall be appropriated for the purposes of the Irish Free State (Saorstát Eireann) in the manner and subject to the charges and liabilities imposed by law."
This Article plainly provides that no appropriation of any of the revenues of the Free State can be made, or the manner of such appropriation prescribed, otherwise than by law, while Article 12 makes it equally certain that the sole and exclusive power of making laws is vested in the Oireachtas.
4. Thirdly, there being nothing, therefore, in the terms of the message or of the resolution as adopted by the Dáil to restrict the powers of the Seanad, the question submitted for our consideration is narrowed down to this:—Can the Seanad amend an appropriation clause in a Bill other than a Money Bill? Again, the answer is to be found in the Constitution, which by Article 38 provides that every Bill initiated and passed by the Dáil may, unless it be a Money Bill, be amended in the Seanad, and the Dáil shall consider any such amendment. The sole and only restriction to be found in the Constitution upon this unlimited right on the part of the Seanad to amend any Bill other than a Money Bill is in the case of an amendment which involves the appropriation of any part of the revenues of the Free State, as no such amendment can be made unless and until the purpose of such appropriation has been recommended by a message from the Governor-General under Article 37, a condition precedent which is equally binding upon both Houses of the Oireachtas. As this condition was admittedly fulfilled by the message in the case of the particular amendment which has given rise to this question, we have no hesitation in answering it in the affirmative.

AN CATHAOIRLEACH

I hope that members of the House have got copies of this Report before them. We were only able to have it printed last night, but it has been circulated to-day, and I am exceedingly anxious that every Senator should have a copy of the Report, because it deals with, perhaps, the most important question that has yet come before the Seanad in reference to its own powers and privileges under the Constitution. The Report we made as short as possible— in effect, merely the conclusions at which your Committee arrived—and as the matter is a little complicated and somewhat difficult, I hope the House will bear with me if I proceed to elaborate it a little more fully than it is in the Report.

It will be within the recollection of the House that during the Committee Stage of the Courts of Justice Bill an amendment was introduced and carried to Section 71, as it stood in the Bill, the effect of the amendment being to transfer the salaries of the District Justices so as to make them a charge upon the Central Fund. The Clause in the Bill as it came before the Committee of the Seanad, contained a provision that these salaries, as distinct from the salaries of the High Court, Supreme Court, and Circuit Court Judges, should be paid out of moneys to be provided by the Oireachtas. On the Report Stage an amendment was put down at the instance of the Government, the effect of which, if carried, would have been to delete the amendment made by the Seanad, and to restore Section 71 to the shape in which it was when it left the Dáil. Before that amendment of the Government was discussed the Attorney-General intervened and called my attention to a Message that had been received from the Governor-General, and a Resolution that had been adopted by the Dáil as a consequence of that Message. The Attorney-General did not quite formulate his proposition—indeed, I do not think he had the time to do it—but I think the House understood it to be, and I so interpreted it, with his assent, that he was of opinion that having regard to the contents of this Message and the Resolution in accordance with the Message, which had been adopted by the Dáil, that the hands of the Seanad were tied as regards this particular Section 71, and that they were not entitled to make the amendment they had introduced upon the Committee Stage. It is important, therefore, and as I say, I am exceedingly anxious that every member of the Seanad should follow me, and I wish to make it as plain as possible. I would invite them, in addition, to take this Report home and in the light of the Constitution to read the Report for themselves, and to read it in connection with the various portions of the Constitution that are referred to in the Report, because this is a matter which is inevitably bound to crop up here in different forms, and affecting so vitally as it does the powers of the Seanad in reference to legislation, I do appeal to each and every member to make a special study of it in the light of the Report and the Constitution itself.

The Message from his Excellency, the Governor-General, you will find set out in the Report, but I would like to read it:—

"On the advice of the Executive Council and for the purpose of Article 37 of the Constitution, I have to recommend that for the purpose of carrying out the provisions of any Act of the present Session to provide for the establishment of Courts of Justice according to the Constitution, and for the better administration of Justice authority be granted (a) for the charge upon the Central Fund of the remuneration and pensions of the Judges of the High Court, the Supreme Court, and the Circuit Court; (b) the payment out of moneys provided by the Oireachtas for Circuit Judges."

That is the Message, and is dated the 23rd September, 1923, and a few days later, and before the Dáil went into Committee upon the Bill, a Resolution was proposed and adopted by the Dáil which followed the terms of the Message. The first matter for the Seanad is this: whether this Message, in so far as it apparently provides in anticipation that the salaries of the District Justice were to be paid out of moneys provided by the Oireachtas, did or did not in any way fetter the action of the Seanad. Your Committee report to you that they are clearly of opinion it did not, and for the following reason: This Message from the Governor-General was sent in pursuance of Article 37 of the Constitution, an Article which, by the way, I may mention, is practically to be found in every written Constitution throughout all his Majesty's self-governing Dominions. It runs as follows:—"Money shall not be appropriated by vote, resolution or law unless the purpose of the appropriation has in the same Session been recommended by a Message from the representative of the Crown, acting on the advice of the Executive Council." Now, you have only to read that to see that the Message is confined to one purpose and one matter only, and that is to recommending the purpose of the appropriation. The Governor-General has no power to recommend the appropriation, nor has he any power to recommend the manner in which the appropriation shall be made. Therefore, in so far as this Message goes beyond recommending the purpose, and goes on actually to make the appropriation and to prescribe the method in which the money is to be provided, it was absolutely mere surplusage; it has no legal effect or power of any sort, kind or description, and has no sanction under the Constitution. Therefore, so far as the Message is concerned, it is plain, I think, and the Committee unanimously so report, that there was nothing in the terms of the Message to control the action of the Seanad.

The next question then, of course, arises as to how far, if at all, the action of the Seanad was controlled by the fact that the Dáil adopted a Resolution in the terms of this Message. It is an interesting question, whether that Resolution bound the Dáil itself, having regard to Article 61 of the Constitution. Article 61 of the Constitution is as follows:—

"All revenues of the Irish Free State from whatever source arising, shall, subject to such exception as may be provided by law, form one fund, and shall be appropriated for the purposes of the Irish Free State in the manner and subject to the charges and liabilities imposed by law."

In other words, no provision can be made for the purpose of paying for Government or public services except by moneys appropriated for the purpose, and that appropriation, and the manner of that appropriation, is to be imposed by law. Now, Article 12 of the Constitution says that the only law making authority is the Oireachtas—"The sole and exclusive power of making laws is vested in the Oireachtas." Therefore, if you paraphrase Article 61 it plainly means this, that no appropriation of any part of the revenues of the Irish Free State can be made for payment of public services unless the appropriation itself, and the manner of the appropriation, is prescribed by the Oireachtas. In so far as this Resolution, when it dealt with Judges of the High Court and Supreme Court, provided that their salaries were to be a charge upon the Central Fund, if I might pronounce an opinion upon it, that clearly bound the Dáil. That is to say, once they accepted that Resolution they were bound to provide for the payment of the Judges of the High Court and Supreme Court in the way in which the Resolution which they adopted prescribed. But in so far as the Resolution went on to say that the salaries of the District Judges were to be paid out of money provided by the Oireachtas, they were simply saying what is in the Constitution itself, because the Constitution says that all appropriation of moneys for the public service are to be made by the Oireachtas, and it is difficult to see how even the hands of the Dáil were fettered by a provision in a Resolution which said they were to do merely what the Constitution itself says they are to do, that is to say, provide the money.

All that the Resolution bound the Dáil to do in regard to District Justices was to provide the money, and it does not seem to me to have fettered their hands in any way as to the manner in which that provision was to be made; in other words, that even in the Dáil they could have if they wished, notwithstanding this Resolution, provided that the salaries of the District Justices were to be paid out of the Central Fund, for you will see that the Resolution does not say that the salaries are to be put upon the Estimates. It does not say they are to be paid by an annual vote. It simply says they are to be paid by money provided by the Oireachtas. As the money in every case, whether made a charge on the Central Fund or not, must be appropriated by the Oireachtas, and as under the Constitution they, and they alone, have the right to prescribe the manner of the payment, it seems to me that even the Dáil had the right, if they wished, to make the amendment we made. However, that is a matter for the Dáil itself under the advice and the direction of its able and vigilant Speaker, and I pass away from it. The matter which concerns this House is the effect, if any, that that Resolution had upon the action of this House. I need hardly say to you that to hold that we were bound by a Resolution to which we were no party, and to which our consent was never asked, would be a distinct violation as it seems to me, and the Committee so report, of Article 61, which leaves the appropriation and the manner of the appropriation of public grants to be determined not by the Dáil but by both Houses—by the Oireachtas —that is to say, to be determined by law.

If, therefore, we are right, as I think we are, in reporting that neither the Message by itself nor the Resolution by itself, nor both combined, had any power or effect to fetter the action of the Seanad, then the only question that remains is this: assuming it to be no way hampered in its action by the Message or by the Resolution, had this House, in the case of a Bill which is not a Money Bill, the power to insert the amendment that it did insert? Of that, I think there can be no question whatsoever, because if there is anything in the Constitution which is clear, it is that, with the exception of a Money Bill, this House can make any amendment it thinks fit in any Bill, and that amendment has to be considered by the Dáil when it goes back to the Dáil. The words are so plain that I have only got to read them to you. "Every Bill initiated in and passed by Dáil Eireann shall be sent to Seanad Eireann and may, unless it be a Money Bill, be amended in Seanad Eireann, and Dáil Eireann shall consider any such amendment." So there is a constitutional right, as clear as language can make it, conferring on this House the right to make any amendment it thinks fit in any Bill, if it is not a Money Bill. The only restriction upon that power is this, apart from the restriction of it being a Money Bill, that if the amendment introduced in the Seanad purports to appropriate for the first time public money, then it would be out of order, because neither the Dáil nor the Seanad can appropriate any public money unless and until a Message has been received from the Governor-General recommending the purpose of the appropriation.

Once he has recommended the purpose of the appropriation, then the Dáil and the Seanad are free and empowered and entitled to make an appropriation and to determine the manner in which that appropriation shall be made, whether by a charge on the Central Fund or otherwise. So that it seems to me, and it seemed also plain to your Committee, that in inserting this particular amendment on the Committee Stage, in Section 71 of this Courts of Justice Bill, they were acting absolutely within their powers. That really is a summary of the whole position. You will find it condensed in the Report, and you will find the particular Articles of the Constitution, that I have referred to, mentioned there. As I have said, it is a matter that does not affect merely this particular amendment, that arose upon this particular Bill, but it is one that goes to the very root of the limited powers that are conferred upon this Seanad. In view of the limited nature of these powers, I felt it my duty to invite the Seanad most carefully to consider this matter, because we are the trustees for the people of the Free State of the powers conferred upon us under this Constitution. We ought to guard them very vigilantly and to see that, at least in our time, they will not suffer any diminishment or infringement. It was for this purpose and for this reason that I thought it my duty to endeavour by a supplementary statement to make the contents of this Report plain and intelligible to every Senator. It will now be for the Seanad to move the adoption of this Report, if some Senator would formally do that. Then the matter can be discussed if necessary.

I formally move the adoption of the Report.

I beg to second.

I would like to say a word or two on this situation. It is a very important one. We appear to be living in a constitutional crisis, but I suppose that is more or less in the nature of the situation at the commencement of our legislative functions. I have no doubt whatever that the view set out in this Report is correct. I have carefully read the Report, although when I was reading it another constitutional question was sprung upon us by a Senator opposite. This Report is perfectly clear. It deals with the various points, and I have no doubt in my mind that the amendment that we carried the other day was perfectly within our powers. It was merely a question of the allocation of the funds from which these salaries were to be paid, and, according to the Constitution, all we are concerned in is, that there is an authentication from the Governor-General empowering this appropriation to be made. So far as this Seanad is concerned, I think we are perfectly within our rights.

The only thing that occurs to me is that this Report has only been in the hands of the Seanad since this morning, and it may be that a number of Senators have not had time to read it and study it. The matter is very important, and I think that the Seanad should in the decision it comes to, if possible, be unanimous. If there is any doubt in the mind of any Senator present about the Report, it will be well to defer it until to-morrow or next week so that all Senators could consider the matter and that we should arrive at an unanimous conclusion.

AN CATHAOIRLEACH

Personally I would not have the least objection, but there is a difficulty which arises in this way. This is really in the end a matter for me, because it is a question of order. No matter what this Report contains, or what the action of the Seanad is, I have to take upon myself the responsibility of ruling the point of order. It will come up in a few minutes, because we are now going to pass on to the consideration of the Courts of Justice Bill, and the very first matter that we have got to deal with is this very question. There and then I shall have to rule on it, because the objection that was raised to our amendment being retained is the very first point that arises when we come to deal with that portion of the Courts of Justice Bill that remained over. We have practically finished the Report Stage, but there were three or four matters, including this serious matter, which the Attorney-General said he would consider and let us know the views of the Government on it when the Bill came up to-day. Consequently, unless there is some Senator who is anxious to look into the matter further, I suggest that the Seanad should adopt the Report now. Otherwise, I think we will have to adjourn the consideration of the Courts of Justice Bill.

Personally, I am perfectly satisfied that we ought to adopt this Report, but I am not certain whether all the other Senators are satisfied.

Motion put and agreed to.