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.
